The" Wanata"

95 U.S. 600, 24 L. Ed. 461, 5 Otto 600, 1877 U.S. LEXIS 2211

• Court: Supreme Court of the United States
• Decided: November 26, 1877
• Docket: 86
• Status: Published

Opinion

Mr. Justice Clifford

delivered the opinion of thd court.

Ship-owners" aré in ho case liable for any loss, damage, or injury occasioned by collision beyond the amount of their interest in. the colliding' ship and her, freight pending, except for’ costs and interest by the way. of damages .in case of default of .payment and suit to récovér the amount. 9 Stat. 635; The Propeller Niagara v. The Cordes, 21 How. 7. Nor are the stipulators, either for cost or value, ever liable for any default of- their- principal beyond the amount specified in the stipulation which they- gave, except for costs and intérést by, the way of damages in case of their own default to make payment, pursuant to the terms of the stipulation. The Ann Caroline, 2 Wall. 538; The Union, 4 Blatch. 90.

Whenever the obligation of'the stipulator, as expressed in the. stipulation, is-for -a definite sum, the surety stipulating to pay. that sum-- cannot be compelled to pay more than that amount for any default of his'principal. The Steamer Webb, 14 Wall 406; Brown v. Burrows, 2 Blatch. 341.

Stipulator's, like sureties, where-the stipulation is for a definite sum,' are bound to make good, the-liability or default' of the principabto .the amount of the ..stipulation; b.ut they cannot' be held to any greater- sum,, unless' they themselves have been, guilty of default, in which case they may -be held liable for-costs and interest, by the way of damages, to the extent that'the same have arisen from the breach of their duty to comply with the terms of'their stipulation. Where, the stipulation or.' bond is given for the value of the ship, the obligation of the. stipulator is that he pay into court the sum. ascertained as the. value, Benedict, Adm. (2d ed.) 294; Dunlap, Adm. 174; Lane v. Townsend, Ware, 289.

Sufficient appears to show that the collision occurred between,' the pilot-boat and the schooner at the time allegéd, off the coast of New Jersey, north of Barneg'at, and'between that point and Long Branch, and that the collision resulted in the total loss -of the pilot-boat belonging to the first-named libellant, and of certain clothing, and other property belonging to- the other libel-, lants. Pending the suit, the owner of the pilot-boat deceased, and his exéeutors'were by consent substituted as .libellants- in,, his place.

Thirteen persons, including the boat’s company and six Sandy Hook pilots, were on board-the pilot-boat at the time of the collision ;• and it appears that the pilot-boat was at anchor at the time, aboftt & half-mile from the. shore, in four fathoms of water. During the afternoon, of the day,-in course of her cruise for employment, she had lost or burst her foresail, and came in' to repair it, and--anchored at six o’clock prior to the collision, which occurred about nine o’clock the' same evening.-

Eleven of the persons on board were examined as witnesses; and, from their testimony, it satisfactorily appears that the wind was north-west, blowing hard; that the sails of the pilot-boat were furled; . that when she anchored she backed off to the south-east, heading north-west; that it was not a thick night, and that it was pretty clear at the time of the collision ; that vessels anchored all along the coast; and that- the place where the pilot-boat was lying is a well-known anchorage ground.

Service was made, and the claimants appeared and filed an answer.- Before answering to the libel, however, the claimants filed a stipulation for costs in the sum of' $250.

. Three principal defences are set up in the answer, as follows: 1. That the pilot-boat was anchored in an unusual, unsafe, and improper place, which exposed her to’ the very disaster which happened. 2. That she’ did not display a proper light. 3. That she did not have a"proper watch upon her deck to-guard and provide against such accidents, especially in the night-time and in stormy weather.

Due attachment' of the schooner was made by the marshal - under the process of monition; and it appears that the ship was subsequently discharged from custody by consent, the claimants having executed a stipulation for value, in addition to the stipulation for costs, in the sum-of $16,000, the parties agreeing that, in case of default or contumacy of the claimants or' their sure-' ties, -execution for the -amount may issue against their goods, chattels, and lands. Testimony was taken on both sides, which is fully reported in the transcript. • Hearing was had ; and the District Court entered a decretal order in favor of the libellants, ,an'd sent- the cause to a commissioner to ascertain -and- compute ' -the amount of the damages due to the owner of the pilot-boat, and to the other libellants respectively for the loss of' clothing and other property on board the pilot-boat at the time when sunk and lost by the collision.

Pursuant to the decretal order, the 'ommissioner -heard the parties, and made a detailed report, in substance and effect as follows: 1. That the owner of the pilot-boat is entitled to recover the sum of $14,694.94. 2. That the other nine libellants are each entitled to recover the sum therein set forth, amounting in the aggregate to the sum of $1,305.06.

Remark should be made that the owners of the schooner, George Sparrow and David L. Turner, are the claimants of' the colliding schooner, and that they excepted to the report of the • commissioner. Both .sums, when added together, make. $16,000, which is the exact amount of the stipulation for valúe.

Amendment was made to the libel, which obviated all except one of the material exceptions of the claimants to the report of the commissioner. They excepted to the amount reported as the value óf the pilot-boat, which exception was overruled by the District Court;

Matters of a preliminary character being disposed of, the District Cpurt confirmed the report of the commissioner, and entered a final decree against the schooner and in favor of the libellants, ten in number, for the sum of $16,000 for the loss of the pilot-boat, clothing, and the other property lost, together with interest by way of damages, with costs taxed at $305.27.

Throughout it was the owners of the schooner as claimants who made defence to the libel, and they appealed to the .Circuit Court. Both parties were heard in the Circuit Court upon the evidence introduced in the District .Court, and the Circuit Court affirmed the decree of the District Court,' and ordered and decreed that the libellants recover against the schooner the sum of $16,000 as damages sustained by the collision, and the costs taxed in the District Court, amounting with interest to the sum of $323.12, and also the costs taxed in the Circuit Court, which, including the interest on the damages. from the date of the decree in the District Court to the date of the decree of the Circuit Court* taxed at the further sum of $1,085.35, amounting together to the sum of $17,407.47.

Stipulation for costs in the sum of $250 was given by .the claimants in the District Court when they entered' their appearance, and' they subsequently gave a stipulation for-value in the .sum of $16,000. Apart from that, it should also be borne in mind that it was the claimants' who appealed to the Circuit Court, and that they gave bond with sureties in the sum of $2,000 to prosecute their -appeal with effect.

Two stipulations and an-.appeal-bond were given in the District Court, the sureties in each being the same persons; and the -record shows that the Circuit Court, - at the same time that- the decree was entered • against the schooner, entered a decree. against the stipulators for value .in the sum of $16,000,' and against the. stipulators in the other stipulation and the sureties in the appeal-bond in', the sum of $1,407.47, the two sums being exactly equal to the amount of the decree entered against , the schooner, which includes the $16,000 recovered as' damages in the District Court, together with the costs taxed in the District Court, and interest on the sums recovered in-that court to the date of the decree entered in the Circuit Court, and the costs taxed in the Circuit Court,'amounting in all to the' sum of $17,407.47.

Immediate appeal was taken to this .court'by the claimants of the schooner; but neither the stipulators for value nor tor costs, nor the sureties in -the bond given to prosecute the appeal from the District Court to the Circuit Court, have ever appealed from the decree entered against them in the Circuit Court.'

. Since the' appeal was entered here, the appellants, who are the owners and claimants of .the schooner, have assigned error as follows1. That the Circuit Court erred'in holding that the place- where the pilot-boat was lying was a proper anchorage. 2. That the court erred in holding that the pilot-boat showed a proper light. 3. That the court erred in holding that,the pilot-boat was not bound to show the light required of such boats when under way. 4. That' the court erred in holding that the want- of a lookout on the. pilot-boat did not contribute to the-collision. 5. That the court' erred in holding that the ■schooner had no .proper lookout. 6; That the court erred in holding that the schooner was in fault and that the pilot-boat' was without fault. 7. That the court erred- in awarding costs taxed in the District Court in .excess of the stipulation for costs.

Pilot-boats, when lying at anchor like other ships, are required to exhibit a white light in a globular lantern of eight inches in diameter, with all the other conditions specified'in the article prescribed in the act- of Congress concerning lights. 13 Stat. 59. Art. 8 applies to sailing pilot-vessels when under way, and it does not apply to pilot-boats when lying at anchor.

Enough appears to show that the pilot-boat was lying at anchor, and the uncontradicted testimony shows that she was anchored in a proper place. Other support to that proposition •is unnecessary; nor is any other-argument required to support the proposition that the light shown by the pilot-boat was the. proper one, as regulated by the act of Congress, than that exhibited in the very able opinion of the district judge.. Full proof was exhibited that the light was trimmed and replaced in the. halyards sixteen feet above the deck at half-past seven o’clock in the evening, and the evidence clearly shows that .it burned brightly from that time to- the collision.

Even suppose that is so, still it is contended by the appellants that .the pilot-boat had no lookout, and that the Circuit Court erred in holding that the want of a lookout on board the pilot-boat did not contribute to the collision.

Evidence to support the first branch of the proposition, is' entirely wanting, as appears-from a careful examination of all the testimony in the case. Instead- of that, it clearly appears that the anchor-watch came on deck as early as eight o’clock; and that he kept a constant lookout until just before the schooner struck the starboard side of the pilot-boat. Prior to that he was standing on the port side of the quarter-deck, and was in the act of getting his coat from the forecastle, having left the deck for that purpose when the collision occurred.

Viewed in the light of these circumstances, the-court is of the opinion that the momentary absence of the lookout from the deck did not contribute to the collision, inasmuch- as it clearly appears that the schooner did not show any signal-lights, and that she had no lookout forward, where a lookout should be stationed.

. Lookouts should be stationed forward; and, if the anchor-watch had been on deck, it is “exceedingly doubtful whether he would have seen the schooner in season to-. adopt any-precautions, and,- if lie had, .he could not have done any thing except to hail; and, inasmuch' as there was no lookout on the forward part of the schooner 'to give heed, to any such warning, it is scarcely possible'.that the watch, if he had remained- on deck, could have' rendered any useful' service.

Vessels under way in the night-time ate required by law to display proper signal-lights; and they should never be without a competent -lookout' properly stationed on. the vessel. Delinquent as the schooner was in respect to botir of those -requirements, the suggestion • that the lookout of the. pilot-boat was absent from the deck at the moment'of the collision-is not entitled to much weight, as the circumstances afford a strong presumption-that his. absence did not contribute to .the disaster.

Attempt is made by the appellants to ascribe the omission of the schooner to display signal-lights to inevitable accident, but the evidence introduced "to support- the theory is quite insufficient for the purpose. - - Proper signal-lights were shown by the pilot-boat; and the court is of the opinion that the schooner, might have done so, if those -who were responsible for her navigation had made proper exertions to comply with that requirement. Nothing is shown in- the case to support that theory, or to furnish any. proper Excuse for omitting to adopt that highly useful- precaution. Union Steamship Co. v. New York Steamer Co., 24 How. 307; The Morning Light, 2 Wall. 550.

' Weighed in the light.of these suggestions, it follows that the schooner was wholly in. faiilt, and that all- the assignments of error,-except the last, ¿nust be overruled.' Suppose that is so, still it -is insisted that the District Court erred in awarding costs, to the libellants- in excess of' the stipulatiop.filed for that -purpose, it appearing that the decree for damages was equal to ,the whole amount of the stipulation for value, and that the Circuit Court,erred in affirming that decree and in allowing costs to the libellants beyond the- amount of the stipulation for costs filed in the.District .Court.' Superadded to that, they-also contend -that the Cireu-it Court erred in decreeing that interest should be taxed as costs in addition to the damages awarded by the decree of the District Court, inasmuch as the damages there awarded were equal to' the full amount of the stipulation filed in the District. Court.

Beyond all doubt, the decree for the damages awarded.in the District Court is correct, as it is for the exact sum specified in the stipulation for value; but it is equally clear that the Costs taxed against the schooner exceed the stipulation for costs filed by the claimants in the District Court in the sum .of $55.27, as appears by. the record.

Prompt-appeal was taken by the owners of the schooner, as claimants, to thé Circuit Court; and the principal owner of the -schooner, George .Sparrow, with Jámes R. Sparrow and James R. Sparrow, Jr., as sureties, gave bond to the libellants in the sum of $2,000, the condition of 4rEe instrument being that if the appellants, George Sparrow and David L. Turner, shall-prosecute their appeal with effect, and-pay all damages and costs which shall be awarded against them, if they fail to make their appeal good, then the obligation to be void; otherwise,.to remain in full force.

Admiralty courts proceed according to the principles, rules, and usages which belong to the admiralty, as contradistinguished from courts' of common law. Manro v. Almeida, 10 Wheat. 473; 1 Stat. 276.

Whenever á stipulation is taken in the admiralty for the property subjected to legal process and condemnation, the stipulation is deemed a mere substitute for the thing itself, and the stipulators are held liable to the exercise of all those authorities on the part of the court which it could properly exercise if the thing itself were still in the custody of the court. The Palmyra, 12 Wheat. 1.

Such a stipulation is binding on the Appellate Court, unless it appears that the property -was-released by misrepresentation, and fraud. Houseman v. The North Carolina, 15 Pet. 40.

Bail is taken for-property attached for the value of the same when delivered to the claimant,.and it will not be reduced if the property when sold, brings less than the appraised value; and' it' is the settled rule, that, where the value of the'property held in a cause of damage is insufficient to pay the loss, it is not competent for the-court to award damages against the sure ties in the stipulation beyond the proceeds or value. The Hope, 1 Rob. A. 155.

Nor can the sureties in a stipulation for costs be held for any greater sum on account of the-default or contumacy of the principal than the sum specified' in the stipulation; but it is well settled that costs may be awarded against the owner. beyond the stipulation, if he appeared and made defence. The John Dunn, id. 160.

Sureties in admiralty, like sureties at law, are only bound to the extent of the obligation expressed in their stipulation, unless they are themselves guilty of default, or appear and make defence, in which case they become responsible for costs, and, in some cases, for interest by the way of damages for the delay of payment.

Costs, unquestionably, were taxed m the District Court beyond the sum expressed in the stipulation filed to secure their payment; but the decree in the' District Court, both for, costs and damages, was against the schooner. No decree was entered in that court either against the stipulators for costs or the. stipulators for value; and the contention is, that the owners defending the. suit are liable, for costs even where the damages are equal to the stipulated value of the property, and the costs taxed exceed the amount of the stipulation for costs filed when the owners appeared'in the' District Court.

Doubtless the 'rule was so prior to the passage of the- act of Congress limiting the liability of ship-owners. .9 Stat. 635. Since the passage of that act,, the question arises whether costs can be allowed in such a case,, where it appears that the 'decree for damages exhausts the whole amount of the stipulation for value.

Much aid is derived in the solution of that question from .the decisions óf the British courts in construing the act of Parliament passed for the same' purpose. By that act the liability of ship-owners was limited, in the .cases therein' specified, to the value of the ship or freight. 53 Geo. III., c. 159. Cases have arisen under that act where the proceeds of the ship were insufficient to make good the loss, in .which it is held that the court cannot decree against the owner for the excess of damage beyond the proceeds. of the ship. The Volant, 1 Rob. A. 383. Other decided cases' 'Support the same rule; but it is settled law that the d fending owners in such a case are liable for costs, even though .the. damages recovered exhaust the whole amount, of the stipulation for .value. The John Dunn, supra.

Costs were awarded against the owners'in that case beyond the amount .of the proceeds of the vessel,.the owners having-appeared and defended the suit. Pending the litigation, the owners-applied-to the' Queen’s Bench for á prohibition, and insisted that costs could not be allowed even -against the own-. ers where the damages were equal-to the value of the ship, the words of the act of'Parliament being that the liability of shipowners shall' be limited to the value of the ship or freight. Hearing was had, eminent counsel appearing on’both sides, and the court, Lord Denman- delivering’ the opinion, decided to the effect that the' -limitation did not ’ discharge defending shipowners from costs. .

Interest in such a case is allowed as well ás costs-; and, in case of appeal, the interest.is cast Ujpon .the-whole amount pi the decree in the court below, including the- costs as well as the' amoUnt of the damage. The Dundee, 2 Hagg. 137.

.-Due-objection to a decree settled in that forrii'.was made in. • that casé; but'Lord Stowell held that the allowances'were correct, that the costs to which -the party is put to recover- his just damages is a part 'of his loss, aridthat the costs in sUch a casé are properly added to the damages in the computation oi interest; - Objection was also made'in that casé to. the allowance of interest, as the damages weré equal to.the value of the ship; but the . same learned'judge answered that the sufferer is entitled to such costs as he shall’incur in recovering thé valué of-.the ship, and to interest if payment is delayed, meaning, of course, that the party causing the delay- is liable in such a case: arid he added, that the suffering party is entitled- to remuneration for the costs to which he is driven for recovering his loss,' as the costs constitute a'part' of the same; that the act of Parliament is riot guilty of the injustice which* would -ensue' if it excluded' the-costs, which are necessary for replacing the sufferer in a just state of compensation. -. Such- a party, if he is reinstated in the value of the property without litigation, is not.entitled to costs; but if he cannot obtainVthe.benefit of the regulation in respect to compensation -without being driven to the necessity of.a suit, the statute would be chargeable with great injustice if it did not allow him to recover costs; and these remarks apply with equal force to the charge of intervening interest arising from delay occasioned by such litigation.

Common-law authorities support the same construction of the act of Parliament referred to, and show to a demonstration that the rule is firmly established in all the courts of the parent country. Ex parte Rayne, 1 Gal. & Dav. 377; Gall v. Laurie, 5 B. & C. 163.

None of these authorities, however, conflict in the least degree with the proposition that the sureties in an admiralty stipulation can never be compelled to pay more than the specific sum expressed in the stipulation for any default or contumacy of the principal. Seasonable payment of the sum expressed in the instrument is all that can be required at their hands; but if they .neglect to fulfil the terms of the instrument, and the suffering party is driven by their neglect to resort to legal measures to recover the amount to satisfy his. loss,'they are then, like the delinquent ship-owner, liable for costs and interest occasioned by their neglect and contumacy. Our act of Congress limiting the liability of. ship-owners was passed subsequent to the British act referred to, and, in the respect involved in this case, is subject to the same construction.

Tested by these considerations, it follows that the decree of the District Court, which was a decree against the schooner, is correct.

Concede that, and still the appellants insist that the Circuit Court erred in awarding costs taxed in the District Court in excess of the stipulation filed there before or at the time the claimants entered their appearance.

Properly analyzed, the decree of the Circuit Court, is as follows: 1. That the decree of the District Court is affirmed. 2. That the ten libellants recover as damages the sum of $16,000, which is the exact amount of the stipulation for value. 3. That they recover the costs taxed in the District Court, with interest to the date of the decree, amounting to the sum of $323.12. 4. That they recover the costs taxed in the Circuit Court, including the interest to date on the dam ages awarded in the District Court, amounting to the sum of •$1,085.35, making in the aggregate the sum of $17,407.47.

Two technical errors occur in adjusting the terms of the •decree of the Circuit Court; but, inasmuch as neither will injuriously affect the rights of the parties, the decree will not be disturbed. 1. Interest is-not costs in any sense, and, when allowed, it should be decreed as damages,, and be added to the damages awarded in the District Court. 2. Costs and interest should never be blended in such a cask, as it would be difficult, if not impossible, to ascertain the amount to be paid by the stipulators for costs; if less thaji the full amount of the stipulation, or to separate the same from the amount to' be paid by the sureties in the appeal-bond.

Cases often arise where such an adjustment is necessary; ana it would arise here were it not that the sureties in the stipulation for costs in the District Court and the sureties in the appeal-bond are the same persons. Nor will the other error operate to the prejudice of any one of the parties, as it is clear that the allowance of interest is a proper charge in the decree against the schooner and the appellants, within the principle of the authorities to which reference has been jnade.

Nothing remains for re-examination except that portion of the decree which adjudges what portion of the aggregate sum awarded shall be paid by the sureties in the respective stipulations, and what portion shall be paid by the sureties in the appeal-bond.

Sixteen thousand dollars were awarded to the ten libellants as damages; and the decree is, that the stipulators for value shall pay that amount, which is obviously correct. They stipulated for that amount; and, inasmuch' as they did not make defence, and have not been guilty of default or contumacy, they cannot be compelled to pay interest or costs to the libellants beyond their stipulation. The Palmyra, 12 Wheat. 10. Nor can the stipulators for costs be compelled to pay more than the sum of $250 for the same reasons, as they stipulated for a definite sum, and have not made defence, nor been guilty, of any default. Clerk’s Praxis, tit. 63, p. 141; The Ann Caroline, 2 Wall. 538; The Steamer Webb, 14 id. 406.

Accrued interest was allowed in the Circuit Court in addition to the damagés awarded in the District Court, which, if added to the sum theré awarded, would exceed the stipulation for value;arid the costs, taxed in the Circuit Court, if added .to the costs taxed in the District Court, would much exceed the stipulation lor' costs, which was only for the sum of $250.

Allowances of the kind, if the case .stopped; there, would •clearly be error; but the case does not stop there, as will presently. fully and satisfactorily appear. Mention has already been made that the claimants, who were the Owners Of the schooner,, appealed to the Circuit Court, and that they gave ,-á.n appeal-bond in the sum of $2,000, with the same persons as sureties .as those who became sureties in the stipulation for costs and-value.

Nothing can be better settled, said Judge Story, than- that the admiralty- may take a fidejussory caution or stipulation in cases in fern, and may in a summary mannrir .award judgment and execution -there'thereon. Jurisdiction to that'effect is possessed by the District Court; and, being fully authorized to adopt the process and modes of proceeding of the admiralty, they have an undoubted right.to ..deliver the property on bail and to enforce conformity to the terms of the - bailment. Authority to take such security is undoubted, and, whether it be- by a sealed .iristruirient or by a stipulation -in the nature of a recognizance, cannot affect the jurisdiction of the court. Having-jurisdiction of the principal cause, the court must possess jurisdiction- over -all the incident's, and may, by motion, attachment, or execution, enforce its decrees against- all who become parties- to the proceedings. The Alligator, 1 Gall. 145; Nelson v. United States, Pet. C. C. 235. Bonds, -says Dunlap, are, to all intents and purposes, stipulations in the admiralty. Dunlap, Prac. 164.

Where the-claimant appeals frrim the decree of the District Court,- the bond and other stipulations follow the cause into the Circuit Court; and, upon the affirmation Of the decree, the fruits of the-appeal-bond and other .stipulations may be obtained in the same manner as in the court below, they being- in fact nothing more than a security taken tri enforce the original, decree;' and are in the nature of a stipulation in the admiralty.. McLellan v. United States, 1 Gall. 227.

It matters not, says that learned, magistrate, whether security in an admiralty and. maritime cause be by bondV recognizance, or stipulation, as the court has an inherent authority to take it, and to proceéd to award judgment or decree thereon according to the course of the .admiralty, unless where some statute has prescribed a different course. The Octavia, 1 Mason, 150; 2 Conkl. Adm. (2d ed.) 105; Holmes v. Dodge, Abbott, Adm. 60; Gaines v. Travis, id. 422; Benedict, Adm. (2d ed.) 290.

Everywhere it is admitted that an appeal in admiralty carries up the whole fund, arid that, is the duty of the Circuit Court .to execute its own decree; arid it is equally clear that the fund in this case consists of the stipulation given in- the District Court for costs, the stipulation given thefe for value, and the bond or stipulation in the sum of $2,000 to prosecute the appeal with effect and pay all damages and costs awarded against them, if the appellants shall fail, to make, their appeal good. Montgomery v. Anderson, 21 How. 386.

Two points were ruled in that case applicable to this: 1. That the appeal in admiralty carries up the res. 2. - That the Circuit Court must carry into execution its own decree. The Collector, 6 Wheat. 194; 2 Pars. Ship. 493.

Sureties in such' an appeal-bond or stipulation may becoine liable for the whole ainount • specified,' as the condition of the instrument is that the principal shall prosecute, his appeal with effect, and pay all damages awarded against the appellant, if .he fail to make good his appeal. Hence it was decided by this .court that the surety in such a.borid-is liable for'the entire amount of damages and costs, to the extent of the penalty, and interest thereon from the date of the institution of the suit, when the property attached prodiices less than the judgment or decree. Ives v. Merchants’ Bank, 12 How. 159.

Examined in the light of these suggestions, as the decree should be,- it is manifest that it contains no error, as the amount of the stipulation'.for-value is decreed to be. paid to the libellants for the losses sustained by the collision, and the stipulation for costs is decreed to be paid to the libellants in part discharge of- the taxed costs, leaving the balance of the taxed, costs and. the accrued interest from.the date of the decree .in. the District Court to the date of the deci’ee in the Circuit Court to-be paid by the sureties in the appeal-bond, which may, by- the rules and usages which belong to courts of admiralty,' be treated as an admiralty stipulation. 1 Stat. 276; Admiralty Rules 5 and 21.

Admiralty- bonds and stipulations taken in the District Court, inasmuch as they constitute the fund out of ^which compensar ■ tión. is to be decreed to the libellants, follow the appeal into the '.Circuit Court.'

Authorities of highest character show that sureties for a definite sum in -an admiralty stipulation can never be compelled to pay more than the sum. stipulated, unless they are -guilty of default or contumacy, in which event they may become liable for interest and the taxable costs incurred by the delay; but the respondent, where there is no - statutory prohibition, may become liable for costs beyond the security given for' the-same, and' for additional damages in the nature of interest, in case of appeal. Were it not so, the injured party, in case of delay, would never be made whole; but such a recovery against the respondent will not enlarge the liability of the sureties, in the stipulation for cost or-value, as the remedy of the libellants-in uhat event is found in the appeal-bond or stipulation given to make the- appeal good. .Costs 'and interest are given in such a case, not. as indemnity for the loss set forth in the libel, but for the reason that the loss ascertained in- the decree of the District Court-was not paid at the proper time. The Northumberland, Law Rep. 3 Adm. & Ecc. 33, 35; Ives v. Merchants’ Bank, supra; The Diana, 3 Wheat. 58; Sneed v. Wister, 8 id. 690; 5 Stat. 518.

Suffice it to say, there is no error in the record.

Decree affirmed,