Page:Federal Reporter, 1st Series, Volume 9.djvu/229

214 FEDEBAIi BIIFOBXEB. �L. C. Ledyard, for libellants. �H. T. Wing, for claimants. �Choate, D. J. The first of these suits is brought by the owners, master, and crew of the American schooner Pathway to recover dam- ages for the losa of the Bohooner, and her pending freight and cargo, and the personal effects of the master and crew, by a collision with the bark Nahor. The libel was filed on the twelfth of November, 1879. The vessel was released on bail, securing the whole amount claimed in the libel. Af terwards, on the twenty-first day of November, 187y,the second libel was filed by the owner of the cargo to recover its value. The cause of action sued upon in the second libel is the same covered by the first libel, so far as that was a suit co recover the value of the cargo. Bail was given also in the second suit. The cases coming on for trial together, a motion of the libellants to consolidate the actions was granted, reserving the question of terms as to costs, etc. It is clear that the vessel, having given bail for the value of the cargo in the first action, and the action being properly brought by the master and owners as carriers, for the loss of the cargo, she was not liable to be again arrested for the same cause of action. The proper and usual course in such a case, if the owner of the cargo desires to be made personally a party to the suit instead of trusting its man- agement to bis agents, the master and owners of the vessel, is to peti- tion to be made co-libeilant with them. The order consolidating the actions in effect produces the same resuit ; but as the commencement of the action was improper, the libellant Eokes must be charged with the costs of the second action, and the bond given therein must be cancelled without regard to the resuit of the first suit. The alleged reasonfor bringing the second suit is that counsel for the owner of the cargo entertained some doubt as to the relative rights of the owners of the cargo and the vessel, in case of an apportionment of the dam- ages between the two colliding vessels. See Leonard v. Whitwell, S. D. N. Y. Dec. 12, 1879; The C. H. Poster, 1 Fed. Eep. 733. In any view that may have been taken of the subject, I do not perceive that the position of the owner of the cargo could be any better as libel- lant in a second suit than it would have been as co-libellant in the first suit, as he could have made himself on motion. In any view of the case the filing of the second libel, and compelling the giving of fur- ther security, was improper. �The collision took place aboiit half past 5 o'clock on the morning of November 10, 1879, about 75 miles from Sandy Hook, which bore from the place of collision about N. by W. The schooner Pathway ��� �