lision. And where intervening voyages have occurred and the vessel has depreciated in value, a conveyance of the ship to a trustee is not to be considered as complying with the statute, unless the owner pay into court such further sum as may be sufficient to make up for the shrinkage in value, unless such depreciation is the result of causes which constitute a lien superior to the one from which limitation is asked. This rule can work no hardship and is equitable, but should be limited to those cases where the injured party pursues his remedy within a reasonable time, and is not guilty of such laches in prosecuting his suit that the court is required to treat his neglect in this respect as an implied consent to the continued use of the ship with the consequent liability of its value being decreased. Where there is such delay, the court in the furtherance of justice may require the injured party to take the vessel subject to the loss following the failure to prosecute within a reasonable time. Where superior liens have arisen by reason of the failure of the injured party to prosecute, the loss rests upon him; and where the vessel is entirely lost, either upon the voyage where collision occurs or afterwards, the liability of the owner ceases.* It is doubtful if any navigation of the vessel subsequent to collision or subsequent to action brought to determine the owner's liability can prevent him from pleading his limited liability, even though he may not be able to surrender the ship. The value of the vessel and freight at the close of the voyage when collision occurs marks the extent of his liability; and when this value is shown, the subsequent use of the vessel does not increase the liability. Sec. 217. Where the act may be invoked. The statute is silent as to the place where the benefit of the act may 1 The City of Norwich, 118 U. S. 468; The Alpena, 8 Fed. Rep. 280; Gokey v. Fort, 44 Fed. R. 364; The Anna, 47 Fed. R. 525; The Great Western, 103 U. S. 525; The City of Norwich, 103 U. S. 490; The Dorris 2 The North Star, 106 U. S. 17. be invoked. To facilitate the practice in admiralty courts the supreme court formulated and adopted rules 54 and 57; the latter rule providing that "the said libel or petition shall be filed and the said proceedings had in any district court of the United States in which said ship or vessel may be libeled to answer for any such embezzlement, loss, destruction, damage or injury, or, if the said ship or vessel be not libeled, then in the district court for any district in which the said owner or owners may be sued in that behalf. When the said ship or vessel has not been libeled to answer the matters aforesaid, and suit has not been commenced against the said owner or owners, or has been commenced in a district other than that in which the said ship or vessel may be, the said proceedings may be had in the district court of the district in which the said ship or vessel may be, and where it may be subject to the control of such court for the purposes of the case as hereinbefore provided. If the ship have already been libeled and sold, the proceeds shall represent the same for the purpose of these rules.”1 The rule as it now stands provides for the application of the statute in three cases, viz.: First. In the district where "the ship or vessel may be libeled to answer for any such embezzlement, loss, destruction, damage or injury." Second. In the district where "the owner or owners may be sued in that behalf." Third. When the ship has not been libeled and the owner has not been sued, "said proceedings may be had in the district in which the said ship may be." The rules of the supreme court are not exclusive, and other rules will no doubt be adopted as occasion for doing so may arise.2 Fourth. A fourth case may properly be added to those mentioned in the rule,-- as where the vessel has been libeled and the owner has been sued. 1 Promulgated May 6, 1872, 13 Wall. xiii; amended April 22, 1889, 130 U. S. 705. 2 The Benefactor, 103 U. S. 244. Under ordinary circumstances the proper place to petition for a limitation of liability, where action has been commenced to determine the liability of the ship and the owner has not been personally sued, is in the district where such action is pending. The fact that the proceeds of the ship, in case of sale or any part of it, as in case of salvage, if lost, is in any district, is sufficient to give the district court of that district jurisdiction over the proceeding. Where the vessel has not been libeled, but action has been brought against the owner, he may petition the court for a decree limiting his liability either in the district where the action is pending to determine his personal liability, or in the district where the vessel then is, regardless of his residence. Where the vessel has not been libeled and no action has been brought to enforce the owner's liability, the proceeding may be instituted in the district in which the vessel or any part of it then is,2 or in the district where the port is situated to which the vessel is destined at the time of collision. The owner may, without waiting for the injured party to first proceed, surrender the ship wherever it may be, and petition the court for an order determining the amount of her responsibility in case judgment is rendered against him; and such a decree when pleaded is a bar to further personal liability in subsequent or pending litigation. It is not essential that the owner first surrender the vessel, or pay into court its value, in order to entitle him to the provisions of the act. When sued he may set up in defense his limited liability by way of answer, and be entitled to relief as fully as though he had first surrendered his interest 1 The Alpena, 8 Fed. R. 280; In re Leonard, 14 Fed. R. 53; In re City of Norwich, 6 Ben. 330; The Lukenbach, 26 Fed. R. 870. 2 The Alpena, 8 Fed. R. 280; Ex parte Slayton, 105 U. S. 451; In re Morrison, 147 U. S. 14; The Benefactor, 103 U. S. 234. Scotland, 118 U. S. 507; Quinlan v. Pew, 56 Fed. R. 111; The Manitoba, 122 U. S. 100; Miller v. O'Brien, 35 Fed. R. 779; Dwyer v. National S. S. Co., 105 U. S. 504; Wallace v. Providence & Stonington S. S. Co., 14 Fed. R. 56; The Benefactor, 9 Ben. 44; The City of Norwich, 6 Ben. The Rosa, 52 Fed. R. 132; The 330. in the ship. It is not necessary that any action shall have been instituted against the vessel or owner in order to afford him an opportunity to invoke the act. The benefits of the statute may be asked at any time and in any district where the vessel is, or where its remains may be, or in any district where his liability is sought to be enforced. And where the owner has not been sued and the vessel is not within the United States, there appears no reason why the owner may not invoke the benefit of the act in the district of his residence, or in any district most convenient, where he offers to stipulate for the value of the ship; nor is it essential that the persons entitled to or claiming damages be personally notified of the pendency of the proceeding to limit his liability. Where the vessel has been libeled and the owner has also been sued in another district, it has been held that the proper place to apply for such limitation is in the district where the ship is libeled and not in the district where the owner is sued.3 1 The Scotland, 105 U. S. 24, 33; The Great Western, 118 U. S. 526; The Dorris Eckhoff, 41 Fed. R. 156; Black v. The Southern Pac. R. R., 39 Fed. R. 565. appeal was taken to the circuit court and thence to the supreme court, and subsequently other suits were instituted in the state courts of the southern district of New 2 The Benefactor, 103 U. S. 245; York, and the owner petitioned In re Morrison, 147 U. S. 14. In the case of The Job M. Leonard, 14 Fed. R. 53, a vessel had been lost at sea and the owners had not been sued, but were prosecuting an action in the district where the owners of the vessel that inflicted the injury resided. Held, that the district court of that district had jurisdiction over the action. 3 The City of Norwich, 118 U. S. 468; The Luckenback, 26 Fed. R. 870. Where a libel was filed against a tug for damages in the eastern district of New York, upon which for a limitation of his liability in the southern district, it was held that he should have petitioned the district court in the district in which the original suit was brought. In re Luckenback, 26 Fed. R. 870. Proceedings may be instituted in the district where a fund or claim representing the vessel is in litigation though the petitioner resides in another state. In re Leonard, 14 Fed. R. 53. The filing of a petition by the owner of a vessel with an offer to give the proper stipulation confers 1 Sec. 218. Surrender of the vessel.-The act contains two provisions: one being that the ship-owner shall be liable only to the value of the ship and pending freight; the other being that he shall be discharged altogether by surrendering the ship and pending freight. It is not necessary that a surrender of the ship should be made in order to entitle the owner to take advantage of the other provision. Failing to take advantage of one provision, he is entitled to follow the other. Where the vessel itself cannot be surrendered, but wreckage is saved, the liability of the owner is restricted to the value of the remains, and when the loss is total the liability of the owner is likewise extinguished.* A surrender of the wreckage, or an offer to do so, is a sufficient surrender of the vessel within the meaning of the act.3 Sec. 219. Appraising owner's interest. The extent of the owner's liability in no case can exceed the amount of his interest in the vessel and freight in process of being earned at the time of collision. The fact that his interest is insured does not increase his liability; nor can the injured party require such insurance to be subjected to his claim further than the appraised value of the owner in the ship and freight, and only then in such manner and form as any other creditor of the owner can subject the claim. Insurance is no part of the owner's interest in the ship or freight, within the meaning of the law, and does not enter into the amount for which the owner is liable. A surrender of the vessel to the underwriters is not a waiver of the right to jurisdiction, and no subsequent act of the parties or irregularity of the proceedings can deprive the court of power to act. In re Morrison, 147 U. S. 14. 1 The Scotland, 15 Otto, 24; Norwich Co. v. Wright, 13 Wall. 104; The Great Western, 118 U. S. 521; The Benefactor, 103 U. S. 239. 2 Thomassen v. Whitwell, 12 Fed. R. 891. 3 The John Bramall, 10 Ben. 495. 4 The City of Norwich, 118 U. S. 468; The City of Columbus, 22 Fed. R. 460; Watson v. Marks, 2 Am. Law Reg. 157; The Peshtigo, 2 Flip. 466; The Great Western, 118 U. S. 520; The Bristol, 29 Fed. R. 867; The Ontario, 2 Low. 40. |