R.R. Co. v. Stout, 84 U.S. (17 Wall.) 657
Case details
Bluebook Citation
R.R. Co. v. Stout, 84 U.S. (17 Wall.) 657
Full caption
Railroad Company v. Stout.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Majority
Hunt (Justice)
Majority
Field (Justice)
Railroad Company v. Stout.
1. While it is the general rule in regard to an adult, that to entitle him to recover damages for an injury resulting from the fault or negligence of another, he must himself have been free from fault, such is not the. rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to he determined in each case by the circumstances of that case.
2. While a railway company is not bound to the same degree of care in regard to mere strangers who are even unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tor■ tious acts.
3. Though it is true, in many cases, that where the facts of a case are undisputed the effect of them is for the judgment of the court and not for the decision of the jury, this is true in that class of cases where the existence of such facts come in question, rather than where deductions or inferences are to be made from them. And whether the facts be disputed or undisputed, if different minds may honestly draw'different conclusions from them, the case is properly left to the jury.
Error to the Circuit Court for the District of Kebraska.
Henry Stout, a child six years of age and living with his parents, sued, by his next friend, the Sioux City and Pacific Railroad Company, in the court below, to recover damages for an injury sustained upon a turntable belonging to the said company. The turntable was in an open space, about eighty rods from the company’s depot, in a hamlet or settlement of one hundred to one hundred and fifty persons. Near the turntable was a travelled road passing through the depot grounds, and another travelled road near by. On the railroad ground, which was not inclosed or visibly separated from the adjoining property, was situated the company s station-house, and about a quarter of a mile distant rom this was the turntable on which the plaintiff was injured. There were but few houses in the neighborhood of te turntable, and the child’s parents lived in another part ° t e town, and about three-fourths of a mile distant. The c * d, without the knowledge of his parents, set off with two °t er boys, the one nine and the other ten years of age, to to the depot, with no definite purpose in view. When vol. xvn. 42 p. 658the boys arrived there, it was proposed by some of them to go to the turntable to play. The turntable was not attended or guarded by any servant of the company, was not fastened or locked, and revolved easily on its axis. Two of the boys began to turn it, and in attempting to get upon it, the foot of the child (he being at the time upon the railroad track) was caught between the end of the rail on the turntable as it was revolving, and the end of the iron rail on the main track of the road, and was crushed.
One witness, then a servant of the company, testified that he had previously seen boys playing at the turntable, and had forbidden them from playing there. But the witness had no charge of the table, and did not communicate the fact of having seen boys playing there, to any of the officers or servants of the company having the table in charge.
One of the boys, who was with the child when injured, had previously played upon the turntable when the railroad men were working on the track, in sight, and not far distant.
It appeared from the testimony that the child had not, before the day on which he was now injured, played at the ■turntable, or had, indeed, ever been there.
The table was constructed on the railroad company’s own land, and, the testimony tended to show, in the ordinary way. It wTas a skeleton turntable, that is to say, it was not planked between the rails, though it had one or two loose boards upon the ties. There was an iron latch fastened to it which turned on a hinge, and, when in orde^, dropped into an iron socket on the track, and held the table in position while using. The catch of this latch was broken at the time o the accident. The latch, which weighed eight or ten poun s, could be easily lifted out of the catch and thrown back on the table, and the table was allowed to be moved about. This latch was not locked, or in any way fastened down e fore it was broken, and all the testimony on that subjec tended to show that it was not usual for railroad companie to lock or guard turntables, but that it was usual to have latch with a catch, or a draw-bolt, to keep them in positio when used.
The record stated that “the counsel for the defendant disclaimed resting their defence on the ground that the plaintiff’s parents were negligent, or that the plaintiff (considering his tender age) was negligent, but rested their defence on the ground that the company was not negligent, and asserted that the injury to the plaintiff* was accidental or brought upon himself.”
On the question whether there was negligence on the part of the railway company in the management or condition of its turntable, the judge charged the jury—
“That to maintain the action it must appear by the evidence that the turntable, in the condition, situation, and place where it then was, was a dangerous machine, one which, if unguarded or unlocked, would be likely to cause injury to children; that if in its construction and the manner in which it was left it was not dangerous in its nature, the defendants were not liable for negligence; that they were further to consider whether, situated as it was as the defendants’ property in a small town, somewhat remote from habitations, there was negligence in not anticipating that injury might occur if it was left unlocked or unguarded; that if they did not have reason to anticipate that children would be likely to resort to it, or that they would be likely to be injured if they did resort to it, then there was no negligence.”
The jury found a verdict of $7500 for the plaintiff, from the judgment upon which this writ of error was brought.
Mr. Isaac Cook, fort the plaintiff in error, insisted—
1st. That the party injured was himself in fault, that his own negligence produced the result, and that upon well-settled principles, a party thus situated is not entitled to recover.
2d. That there was no negligence proved on the part of t e defendant in the condition or management of the table.
3d. That the facts being undisputed, the question of neg-Igence was one of law, to be passed upon by the court, and 8 ould not have been submitted to the jury.
Mr. 8. A. Strickland, contra.
Mr. Justice HUNT delivered the opinion of the court.
1st. It is well settled that the conduct of an infant of tender years is not to be judged by the same rule which governs that of an adult. While it is the general rule in regard to an adult, that to entitle him to recover damages for an injury resulting from the fault or negligence’ of another, he must himself have been free from fault, such is not the rule in regard to an infant of -tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case.*
But it is not necessary to pursue this subject. The record expressly states that “ the counsel for the defendant disclaim resting their defence on the ground that the plaintiff’s parents were negligent, or that the plaintiff (considering his tender age) was negligent, but rest their defence on the ground that the company was not negligent, and claim that the injury to the plaintiff was accidental or brought upon himself/’
This disclaimer ought to dispose of the question of the plaintiff’s negligence, whether made in a direct form, or indirectly under the allegation that the plaintiff' was a trespasser upon the railroad premises, and therefore cannot recover.
A reference to some of the authorities on the last suggestion may, however, be useful.
In the well-known case of Lynch v. Nurdin,] the child was clearly a trespasser in climbing upon the cart, but was allowed to recover.
In Birge v. Gardner, | the same judgment was given an the same principle was laid down. In most of the actions, indeed, brought to recover for injuries to children, the posi tion of the child was that of a technical trespasser.
In Laly v. Norwich and Worcester Railroad Company & rt18
* Railroad Co. ®. Gladmon, 15 Wallace, 401. t 1 Adolphus & Ellis (new series), 29. t 19 Connecticut, 607. 4 26 Id. Wl-
said the fact that the person was trespassing at the time is do excuse, unless he thereby invited the act or his negligent conduct contributed to it.
In Bird v. Holbrook* the plaintiff* was injured by the spring guns set in the defendant’s grounds, and although the plaintiff was a trespasser the defendant was held liable.
There are no doubt cases in which the contrary rule is laid down. But we conceive the rule to be this : that while a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts.
2d. Was there negligence on the part of the railway company in the management or condition of its turntable?
The charge on this point (see supra, p. 659) was an impartial and intelligent one. Unless the defendant was entitled to an order that the plaintiff* be nonsuited, or, as it is expressed in the practice of the United States courts, to an order directing a verdict in its favor, the submission was right. If, upon any construction which the jury was authorized to put upon the evidence, -or by any inferences they were authorized to draw from it, the conclusion of negligence can be justified, the defendant was not entitled to this order, and the judgment cannot be disturbed. To express it affirmatively, if from the evidence given it might justly be interred by the jury that the defendant, in the construction, location, management, or condition of its machine had omitted that care and attention to prevent the occurrence of accidents which prudent and careful men ordinarily bestow, the jury was at liberty to find for the plaintiff*.
hat the turntable was a dangerous machine, which would e likely to cause injury to children who resorted to it, might anly be inferred from the injury which actually occurred
e * 4 Blngha«b 628; see, also, Loomis v. Terry, 17 Wendell, 496; Wright _ 1amscoh 4 ®aun<iers, 83; Johnson v. Patterson, 14 Connecticut, 1; State ’• Moore, 31 Id. 479.
to the plaintiff. There was the same liability to injury to him, and no greater, that existed with reference to all children. When the jury learned from the evidence that he had suffered a serious injury, by his foot being caught between the fixed rail of the road-bed and the turning rail of the table they were justified in believing that there was a probability of the occurrence of such accidents.
So, in looking at the remoteness of the machine from inhabited dwellings, when it was proved to the jury that several boys from the hamlet were at play there on this occasion, and that they had been at play upon the turntable on other occasions, and within the observation and to the knowledge of the employes of the defendant, the jury were justified in believing that children would probably resort to it, and that the defendant should have anticipated that such would be the ease.
As it was in fact, on this occasion, so it was to be expected that the amusement of the boys would have been found in turning this table while they were on it or about it. This could certainly have been prevented by locking the turntable when not in use by the company. It was not shown that this would cause any considerable expense or inconvenience to the defendant. It could probably have been prevented by the repair of the broken latch. This was a heavy «catch which, by dropping into a socket, prevented the revolution of the table. There had been one on this table weighing some eight or ten pounds, but it had been broken off and had not been replaced.' It was proved to have been usual with railroad companies to have upon their turntables a latch or bolt, or some similar instrument. The jury may well have believed that if the defendant had incurred the trifling expense of replacing this latch, and had taken t e slight trouble of putting it in its place, these very small boys would not have taken the pains to lift it out, and thus t e whole difficulty have been avoided. Thus reasoning, t e jury would have reached the conclusion that the defen an had omitted the care and attention it ought to have give, that it was negligent, and that its negligence caused t e p. 663jury to the plaintiff. The evidence is not strong and the negligence is slight, but we are not able to say that there is not evidence sufficient to justify the verdict. We are not called upon to weigh, to measure, to balance the evidence, or to ascertain how we should have decided if acting as jurors. The charge was in all respects sound and judicious, and there being sufficient evidence to justify the finding, we are not authorized to disturb it.
3d. It is true, in many cases, that where the facts are undisputed the effect of them is for the judgment of the court, and not for the decision of the jury. This is true in that class of cases where the existence of such facts come in question rather than where deductions or inferences are to be made from the facts. If a deed be given in evidence, a contract proven, or its breach testified to, the existence of such deed, contract, or breach, there being nothing in derogation of the evidence, is no doubt to be ruled as a question of law. In some cases, too, the necessary inference from the proof is so certain that it may be ruled as a question of law. If a sane man voluntarily throws himself in contact with a passing engine, there being nothing to counteract the effect of this action, it may be ruled as a matter of law that the injury to him resulted from his own fault, and that no action can be sustained by him or his representatives. So if a coach-driver intentionally drives within a few inches of a precipice, and an accident happens, negligence may be ruled as a question of law. On the other hand, if he had placed a suitable distance between his coach and the precipice, but by the breaking of a rein or an axle, which could not have been anticipated, an injury occurred, it might be ruled as a question of law that there was no negligence and no liability. But these are extreme cases. The range between them is almost infinite in variety and extent. It is in relation to L.ese intermediate cases that the opposite rule prevails. pon the facts proven in such cases, it is a matter of judgment and discretion, of sound inference, what is the deduction to be drawn from the undisputed facts. Certain facts we may suppose to be clearly established from which one p. 664seneible, impartial man would infer that proper care had not been used, and that negligence existed; another man equally sensible and equally impartial would infer that proper care had been used, and that there was no negligence. It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge.
In no class of cases can this practical experience be more wisely applied than in that we are considering. We find, accordingly, although not uniform or harmonious, that the authorities justify us in holding in the case before us, that although the facts are undisputed it is for the jury and not for the judge to determine whether proper care was given, or whether they establish negligence.
In Redfield on the Law of Railways,* it is said: “ And what is proper care will be often a question of law, where there is no controversy about the facts. But ordinarily, we apprehend, where there is any testimony tending to show negligence, it is a question for the jury.”f
In Patterson v. Wallace £ there was no controversy about the facts, but only a question -whether certain facts proved established negligence on the one side, or rashness on the other. The judge at the trial withdrew the case from the p. 665jury, but it was held in the House of Lords to be a pure question of fact for the jury, and the judgment was reversed.
*
Vol. 2, p. 231. f Quimby v. Vermont Central Railroad, 23 Vermont, 387; Pfau Bey nolds, 53 Illinois, 212; Patterson v. Wallace, 1 McQueen’s House of or Cases, 748. J 1 McQueen’s House of Lords Cases, 748.
In Mangam v. Brooklyn Railroad* the facts in relation to the conduct of the child injured, the manner in which it was guarded, and how it escaped from those having it in charge, were undisputed. The judge at the trial ordered a nonsuit, holding that these facts established negligence in those having the custody of the child. The Court of Appeals of the State of New York held that the case should have been submitted to the jury, and set aside the nonsuit.
In Detroit and W. R. R. Co. v. Van Steinberg,] the cases are largely examined, and the rule laid down, that when the facts are disputed, or when they are not disputed, but different minds might honestly draw different conclusions from them, the case must be left to the jury for their determination.J
It has been already shown that the facts proved justified the jury in finding that the defendant was guilty of negligence, and we are of the opinion that it was properly left to the jury to determine that point.
Upon the whole case, the judgment must be
Affirmed.
* 38 New York (11 Tiffany), 455. f 17 Michigan, 99. + See among other cases cited, the following: Carsly v. White, 21 Pickering, 256; Rindge v. Inhabitants of Coleraine, 11 Gray, 157 ; Langhoff v. Milwaukee and P. D. C., 19 Wisconsin, 497 ; Macon and Western Railroad ”• Davis, 13 Georgia, 68; Renwick v. New York Central Railroad, 36 New York, 132.
The Emily Souder.
1. In June, 1865, the American-steamer Emily Souder, owned by residents in New York, whilst on a voyage to that port from Rio Janeiro lost her propelling screw, and put into the port of Maranham, on the coast of Brazil, in distress. She was towed into that port by another steamer for which she had signalled. The captain was without adequate funds to make the repairs required and furnish the vessel with the supplies necessary to enable her to proceed on her voyage, or to pay the expenses of her towage into port, and of pilotage, custom-house dues, fees of the consul in the port, and expenses of medical attendance upon the sailors. Both he and the owners of the vessel were unknown in Maranham, and without credit there. Under these circumstances the captain borrowed of the libellants the necessary funds to enable him to pay these several expenses, and gave them drafts on the owners of the vessel in New York for the amount, payable thirty days after sight, which drafts were accepted on presentation, but were protested for non-payment; Held, 1st, that the items of expense for towage, pilotage, custom-house dues, consular fees, and medical attendance upon the sailors stood in the same rank with the repairs and supplies to the vessel, and that the libellants advancing funds for their payment were equally entitled as security to a lien upon the vessel; 2d, that the drafts were only conditional payment, and did not discharge and satisfy the original debt.
2. After the libellants in one of the cases had agreed with the captain to advance all the funds required by him, the libellant in the other case, who had been first applied to by the captain, agreed to advance a portion of the funds, and did so; Held, that this subsequent agreement did not affect the implied hypothecation of the vessel for the whole, the advances by both libellants having been made on the credit of the vessel and not solely on the personal credit of ‘the captain or owners.
3. The presumption of law is, in the absence of fraud or collusion, that where advances are made to a captain in a foreign port, upon his request, to pay for necessary repairs or supplies to enable his vessel to prosecute her voyage, or to pay harbor dues, or for pilotage, towage, and like services rendered to the vessel, that they are made upon the credit of the vessel as well as upon that of her owners. It is not necessary to the existence of the hypothecation that there should be in terms any express pledge of the vessel, or any stipulation that the credit shall be given on her account.
4. The presumption in such cases can be repelled only by clear and satisfac tory proof that the master was in possession of funds applicable to t e expenses, or of a credit of his own or of the owners of his vessel, upon which funds could be raised by the exercise of reasonable diligence, an that the possession of such funds or credit was known to the party making the advances, or could readily have been ascertained by proper inquiry.
5. Liens for advances of funds for the necessities of vessels in a foreign port have priority over existing mortgages to creditors at home. 6. Where advances in a foreign port are made in gold, and drafts for the amount on the owners show that the payment to the parties making the advances is to be also in gold, the court may direct that its decrees be entered for the amount in like currency.
Appeals from the Circuit Court for the Southern District of New York.
The firm of Packenham Beatty & Co., and also a certain Pritchard, filed separate libels in the District Court of the district just mentioned, against the steamer Emily Souder, an American vessel, owned in New York. The case was thus:
The steamer while on a voyage to that port from Rio Janeiro in June, 1865, lost her screw, and was compelled to put into the port of Maranham, on the coast of Brazil, for repairs. Pier captain was without funds, sufficient to meet the expenses for these repairs, and other expenses incurred and to be incurred to enable the vessel to proceed on her voyage. The funds in his possession did not amount to $600, and both he and the owners of the vessel were unknown in the port of Maranham, and without credit. He accordingly applied to the consul of the United States there to find him a consignee, who would advance the necessary funds and attend to the business of the vessel. The consul applied in company with the captain to several persons without success, but finally an arrangement was made which was satisfactory, with the firm of Packenham Beatty & Co., merchants at that port: they to receive five per cent, commission on the amount advanced, and five per cent, commission for attending to the business of the vessel.
The steamer was repaired, and supplies furnished to enable the vessel to proceed on her voyage, and the funds for these items, and also to pay the charges for towing the vessel when disabled into port by another steamer which ad been signalled for, and for pilotage, and for the dues at the custom-house, fees of the consul, and charges for medical attendance upon the sailors in port, were furnished by p. 668the libellants. The different items were all submitted to the captain, and were approved by him before they were paid.
Pritchard, one of the libellants, was applied to by the captain to advance the funds before the arrangement was made with Packenham Beatty & Co., the other libellants. He then said that he would see what he could do. Afterwards he consented to advance a portion of the funds. Accordingly two drafts were drawn by the captain on the owners of the vessel in Kew York, for the amounts advanced, and one of them was given to Pritchard, and the other to Packenham Beatty & Co. The drafts were payable thirty days after sight in gold; the currency in which the advances were made. The drafts were presented and accepted, but on their maturity were protested for non-payment. The holders thereupon tiled libels against the vessel, producing the drafts in court on the trial, and surrendering them for cancellation. Beatty, of the firm of Packenham Beatty & Co., and Pritchard, both testified that the advances in Maranham were made on the credit of the vessel, and would not have been made on any other condition; but that the drafts were taken only as conditional payment, and not in satisfaction of the sums advanced. The testimony of the captain was somewhat in conflict with this, he stating that the advances were made on the credit of the owners of the vessel and upon drafts on them, nothing being said at the time about bottomry of the vessel or raising money on her credit.
The vessel was at the time the advances were made under mortgage to the former owners for the purchase-money. They were obliged to take back the vessel before the libels were filed, and they were the claimants here.
The District Court rendered a decree in favor of the libellants in both cases, for the amounts advanced by them respectively, with interest, and directed that the amounts should be paid in gold coin of the United States. The Circuit Court affirmed the decrees and the claimants appealed to this court.
Jfr. Charles Donohue, for the appellants ; Mr. C. Van Santvoord, contra.
Mr. Justice FIELD delivered the opinion of the court.
The rule announced in The G-rapeshot** and there relieved from the supposed embarrassment of some previous decisions of this court, and repeated and affirmed in The Lulurf and The Kalorama,^ and followed in The Palapsco,§ disposes of the main question in these cases. The steamer here had entered the port of Maranham, on the coast of Brazil, in distress; she had lost her propelling screw, and was towed into port by another steamer, for which she had signalled. ’The repairs there made to the vessel, and the supplies furnished to her, and the expenses incurred on her account, were necessary to render her seaworthy and enable her to leave the port and prosecute her voyage to New York. The captain was without adequate funds for these purposes, the whole amount in his possession being under $600, and that sum being insufficient to meet the contingent expenses of the vessel. Both he and the owners of the vessel were unknown in Maranham, and without credit there. It was under these circumstances that he requested the consul of the United States in that port to obtain for him a consignee who would attend to the business of the vessel and advance the requisite funds. And it was only after applying without success to several parties, that he succeeded.in inducing the firm of Packenham Beatty & Co., the libellants in one of these cases, to make the arrangement desired with the captain. The stipulation in the arrangement for five per cent, commission on the funds advanced, and five per cent, commission for attending to the business of the vessel was not unreasonable nor unusual. The steamer was detained at Maranham nearly five weeks, and the moneys advanced by the libellants, it is true, were not entirely for the repairs to the vessel and the supplies needed for the voyage; they were intended and applied in part to meet the expenses of *---------------
* 9 Wallace, 129. f 10 Id. 192. J lb. *204. § 13 Id. 329.
her towage into port and of pilotage, and to pay the custom-house dues, consular fees, and charges for medical attendance upon the sailors. These various items, however, stood in the same rank with necessary repairs and supplies to the vessel, and the libellants advancing funds for their payment, were equally entitled as security to a lien upon the vessel. The items were all submitted to the examination of the captain, and were approved by him before they were paid.
The drafts given by the captain upon the owners of the vessel »in New York were not received by the libellants in discharge and satisfaction of the sums advanced. They were received only as conditional payment. Such would be the presumption of law in the absence of any direct evidence on the point. For by the general commercial law of the world, a promise to pay, whether in the form of notes or bills, is not of itself the equivalent of payment; it is treated everywhere, in the absence of express agreement or local usage to the contrary, as conditional payment only. On principle, nothing can be payment in fact except what is in truth such, unless specially agreed to be taken as its equivalent. But here the evidence of the libellants is direct and positive that the drafts were only taken as conditional payment, and on the trial they were produced and surrendered for cancellation.*
The consent of Pritchard, the libellant in one of the cases, to advance a portion of the funds after Packenham Beatty & Co. had agreed to advance the whole, does not in our judgment in any respect affect the implied hypothecation of the vessel for the whole. The whole sum advanced was required, and the question is not whether it came from one or more parties, or whether the advances were made at one time or at different times, but whether they were made on the personal credit of the captain or of the owners, or were made on the credit of the vessel also. And upon this question there can be in this case no reasonable doubt. The presumption of law always is, in the absence of fraud or p. 671collusion, that where advances are made to a captain in a foreign port, upon his request, to pay for necessary repairs or supplies to enable his vessel to prosecute her voyage, or to pay harbor dues, or for pilotage, towage, and like services rendered to the vessel, that they are made upon the credit of the vessel as well as upon that of her owners. It is not necessary to the existence of the hypothecation that there should be in* terms any express pledge of the vessel, or any stipulation that the credit shall be given on her account. The presumption arises that such is the fact from the-necessities of the vessel, and the position of the parties considered with reference to the motives which generally govern the conduct of individuals. Moneys are not usually loaned to strangers, residents of distant and foreign countries, without security, and it would be a violent presumption to suppose that any such course was adopted when ample security in the vessel was lying before the parties. The presumption, therefore, that advances in such cases are made upon the credit of the vessel is not repelled by any loose and uncertain testimony as to the suppositions or understandings of one of the parties. It can be repelled only by clear and satisfactory proof that the master was in possession of funds applicable to the expenses, or of a credit of his own or of the owners of his vessel, upon which funds could be raised by the exercise of reasonable diligence, and that the possession of such funds or credit was known to the party making the advances, or could readily have been ascertained by proper inquiry.
*
The Kimball, 3 Wallace, 37; The Bark Chusan, 2 Story, 456.
In the cases at bar, the presumption is not only not repelled by any satisfactory evidence, but is supported by the positive testimony of the libellants. Beatty, who appears to have transacted the business of Packenham Beatty & Co. with the captain, and Pritchard, both declare in the most emphatic manner that they made the advances on the credit of the vessel, and would not have made them on any other condition.
The evidence of the captain, it is true, is to some extent m conflict with their testimony, but considering the circum-
Syllabus.
stances under which the advances were made, it is entitled, as against their direct and positive declarations, to little weight. Perhaps, as suggested by the Circuit Court in its opinion, the inferences of the captain were not the result of any intended untruth on his part, but were drawn from the fact that nothing was said during the negotiation for advances intimating in terms that the libellants were to have a lien upon the vessel.
The fact that the vessel was, at the time the advances were made, under mortgage to the claimants, does not subordinate the lien of the libellants to the claim of the mortgagees. Funds furnished in a foreign port, under the circumstances and for the purposes mentioned in this case, have priority as a lien upon the vessel over existing mortgages. Advanced for the security and protection of the vessel, they were for the benefit of the mortgagees as well as of the owners. If liens created by the necessities of vessels in a foreign port could be subordinated to or displaced by mortgages to prior creditors at home, such liens would soon cease to be regarded as having any certain value, or as affording any reliable security.
As the advances were in gold, and the drafts on the owners in New York show that the payment to the libellants was to be made also in gold, the court below ruled rightly in directing its decrees to be entered for the amount due them in like currency.*
Decree affirmed in both cases, with interest and costs.