Page:Federal Reporter, 1st Series, Volume 8.djvu/352

S38 FEDERAL REPORTER. �or diminution of the interest of the owner. But the right or intereet created in the injured party by the second marine tort does not depend upon contract, but upon the principles of the maritime law relating to marine torts and their effect upon, or the claim that they create upon, the vessel. Now I think it is the established rule of the maritime law that for the torts of the master and mariners the vessel becomes bound to the injured party to the estent of the damage, A lien or taeit hypothecation is at once created and vested in the dam- aged party, subject to be defeated only by unreasonable laches in bringing the proceeding in rem, by which alone it can be enforced. A party who bas already suffered such a damage bas such a lien or hypothecation of the vessel. He is to that extent in the position of an owner, — he has a quasi proprietary interest in the vessel. It is true he cannot, as an owner, control her employment or prevent her depart- ure on another voyage, except by the exercise of his right or power to arrest her for the in jury to himself, and in some cases the second injury may be dons before he has an opportunity to arrest her ; yet if her continued employment is not his own voluntary act, nor with hia own consent, it is his misfortune that the vessel in which he has an interest is used in a manner to subject herself to all the perils of navigation. This use, unless he intervenes to libel and arrest her, is perfectly lawful as against him. If she is lost by shipwreok, of course his lien becomes valueless, and I think his interest is not exempted from this other peril to which the vessel is liable, namely : that she may become bound to afiy party injured through the torts of the master and mariners. The principle as to marine torts is that the ship is regarded as the offending party. She is liable in solido for the wrong done. The interest of all parties in her are equally bound by this lien or hypothecation, whether the master and mariners are their agents or not. In the case of The AUne, 1 Wm. Eob. 118, Dr. Lushington says : �"I am also of opinion that neither the mortgagee nor bottomry bondholder could be a competitor with the successful suitor in a cause of damage, and for this reason that the mortgage or bottomry bond might and often does extend to the whole value of the ship. If, therefore, the ship was not flrSt liable for the damage she had cecasioned, the person receiving the injury might be wholly without a remedy, more especially where, as in this case, the damage is done by a foreigner, and the only redress is by a proceeding against the ship." �Commenting on this decision in the case of The Bold Buccleugh, ut supra, the court says : ��� �