The Frank Vanberkerchen

KIRKPATRICK, District Judge. The libel in this cause was filed January 26, 1894, by the owners of the schooner Maria Pierson, to recover damages, amounting to the sum of $2,000, resulting from a collision of the libelants’ schooner with the schooner Frank Vanderkerchen, off the coast of New Jersey, January 8, 1894. It is alleged in the verified libel that, at the time of its filing, the schooner Frank Vanderkerchen was lying in the waters of the Hudson river, within the district of New Jersey, and within the jurisdiction of this court. The agents of the owners of the schooner Frank Vanderkerchen, upon being notified of the filing of said libel, voluntarily entered into a stipulation with sureties, for value, in the sum of $2,000, by which it was agreed that, in case of default or contumacy on the part of the claimants or their sureties, execution for the amount of $2,000 might issue against their goods and chattels and lands. It was also specifically set out in the said stipulation that the said schooner Frank Vanderkerchen had. not then been attached, and that the value of $2,000 was fixed by consent of the sureties thereon indorsed, and the condition was that the said stipulators should abide by, and pay the money awarded by, the final decree in said cause. In consequence of this stipulation being entered into, no monition issued against the schooner Frank Vanderkerchen, and she was not taken into custody. To the libel so filed a general appearance was entered, and an answer was filed on behalf of the schooner Frank Vanderkerchen. Testimony was taken in said cause, hearing had, and final decree was entered April 13, 1897. Subsequently, on May 5, 1897, Charles A. Pet-tit, for himself and others, claiming to be owners of the schooner Frank Vanderkerchen, filed a petition asking that all proceedings in relation to said schooner be dismissed, that the final decree be vacated, and that the stipulators be relieved from the obligation of their stipulation, upon the ground that the court had not acquired jurisdiction in the premises, because no actual seizure of the said schooner had ever been made, such seizure being necessary to the exercise of jurisdiction by the court. A petition was also filed by said Pettit and others at the same time, praying that they might be allowed the benefit of the provisions of section 4284 of the Revised Statutes of the United States and its supplements, generally known as the "Limited Liability Act”: but this latter petition was withdrawn subsequently in open court, so that the only question now to be decided by the court is one of jurisdiction. It has been conceded that the schooner Frank Vanderkerchen was, at the time the libel was filed, within the territorial limits over which this court had jurisdiction; but it is contended that because no monition issued, because the schooner was not taken into actual custody, the court cannot exercise its authority over the vessel which is the 765 subject-matter of the suit. Actual, open, and notorious possession is necessary in actions in rein, so that all the world which may be interested in tbe suit can have due notice of the proceedings, and be given an opportunity to protect their rights, before tbe court should proceed,to condemnation and sale. It is obvious, however, that the reason for this requirement applies only with regard to the thing itself of which the court proposes to dispose of the interest of all persons, whether they be represented before the court or not, but it fails entirely to be material when for tbe res there lias been substituted a personal bond or stipulation to pay the damages awarded to the libelant. Then all the parties in interest are before the court:, and there is no necessity for publicity. If a seizure has been made, upon the execution and delivery of the stipulation in sufficient amount to satisfy the libelant’s claim, the res is surrendered to the claimant, and the stipulation is taken into the custody of the court, and thereafter becomes a substitute for the res, and to it alone the libelant thereafter looks for the satisfaction of his claim or decree. Jennings v. Carson, 4 Cranch, 25, 26; U. S. v. Ames, 99 U. S. 35. "The stipulators, to the extent of their stipulation, have been substituted for the steamer, and thus nothing but the value and the costs is within the custody of the court.” The Webb, 14 Wall. 406. Ordinarily, seizure of the property precedes the appearance of the claimants in the suit; but it cannot make any material difference whether the claimants and their sureties voluntarily enter into the stipulation before actual seizure to avoid tbe expense and delay and inconvenience thereof, or whether they wait until the vessel has been taken into actual custody under tbe monition. The effect is the same so far as they are concerned. In tbe one case, the claimants are permitted to remain in possession of the vessel; in the other, it is redelivered to them. In both cases the stipulation becomes a substitute for the thing itself, and remains a pledge or security for the property as regards the claim of the libel-ants, and tbe "stipulators are held liable to tbe exercise of all those authorities on the part of the court which the tribunal could properly exercise if the thing itself were still in the custody of the court.” The Wanata, 95 U. S, 611; The Palmyra, 12 Wheat. 1. “While the general rule requires an actual seizure and possession of the res by the officer of the court, such jurisdiction may he acquired by acts which are of equivalent import, and which stand for and represent the dominion of the court over tbe thing.” Cooper v. Reynolds, 10 Wall. 317. It has been the practice in this district to make this substitution of stipulation for the res upon simple notice of filing the libel, and without monition being issued. Its .legality has never before been questioned. The original object of the stipulation was to avoid the question of jurisdiction, and the agreement on the pari: of the stipulators to permit execution to issue against them in case of default, and abide and pay the amount awarded against them on final decree, was considered a waiver of all objection based on a failure to serve process. In Re The Roslyn, Fed. Cas. No. 12,068, his honor, Judge, Brown, sitting in admiralty in the Bouthern district of New York, where the same practice prevails of accepting stipulation upon notice of filing libel and without issuing monition, held “that the fact that 766 the boat was not in custody would not render the stipulation void or prevent the court from enforcing it,” and that such “stipulation, was valid, though the vessel sought to be proceeded against is not and never was irf custody.” The rule to show cause will be discharged.