Hartford Accident & Indemnity Co. v. Southern Pac. Co.
| Decision Date | 06 January 1925 |
| Docket Number | No. 4295.,4295. |
| Citation | 3 F.2d 923 |
| Parties | HARTFORD ACCIDENT & INDEMNITY CO. OF HARTFORD v. SOUTHERN PAC. CO. et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John Neethe, of Galveston, Tex. (Williams, Neethe & Williams, of Galveston, Tex., on the brief), for appellant.
W. T. Armstrong and W. E. Cranford, both of Galveston, Tex. (Burlingham, Veeder, Master & Feary, of New York City, and Terry, Cavin & Mills, of Galveston, Tex., on the brief), for appellees.
Before WALKER and BRYAN, Circuit Judges, and CLAYTON, District Judge.
The owner of the oil tank barge Bolikow filed its petition for a limitation of its liability in respect of claims arising out of an alleged explosion on and burning of that barge. That petition contained prayers to the following effect: That the court will cause due appraisement to be made of the amount of the value of petitioner's interest in said barge after said explosion, and at the time of the cessation of the burning of said barge, as the result of said explosion, and make an order for the payment of such amount into court, "and granting leave to the petitioner to file an ad interim stipulation pending the appraisal of the petitioner's said interest in said barge Bolikow and her pending freight, if any"; that the court will issue a monition to all persons having claims for loss or damage caused by said explosion and burning to present and make proof of their claims in the proceeding instituted by the filing of said petition; and that the court issue an injunction restraining the commencement or prosecution, except in this proceeding, of any suit or action by the claimant named in the petition, or any other person or persons who may have or claim to have any cause or causes of action against said barge or its owners, arising out of said explosion or burning.
Upon the presentation of the petition, accompanied by an affidavit showing that the value of the burned hulk of said barge, which was all of the barge or its cargo that was saved or salved after such explosion and burning, was the sum of $250, and that the freight on said barge pending at the time of said disaster did not exceed the sum of $11,076.85, the court made the following order:
"Ordered, that the petitioner file herein an ad interim stipulation for the value of said barge Bolikow, her tackle, apparel, equipment, etc., with the maximum possible amount of the pending freight at the termination of the said fire on said barge Bolikow and of the said voyage on which said barge Bolikow was engaged at the time of the said disaster, in the sum of $11,326.85, with interest from the said 23d day of December, 1920, the date of the aforesaid explosion, with surety according to the rules and practice of this court; and it is further ordered, that any party may apply to have the amount of the stipulation so increased or diminished, as the case may be, on report of the commission appointed to appraise the amount of the petitioner's interest in the said barge Bolikow and her pending freight, if any, or on the ultimate determination of the court and exceptions to the commissioner's report."
Pursuant to that order the petitioner and the appellant, as surety, executed an ad interim stipulation, which, following the recital of the making of that order, contained the following:
"Now, therefore, the petitioner, said National Oil Transport Company, as principal, and Hartford Accident & Indemnity Company, as surety, in consideration of the premises and for other good and valuable considerations, undertake in the sum of $11,326.85, with 6 per cent. interest thereon from December 23, 1920, that the said National Oil Transport Company, petitioner herein, will file a bond or stipulation in the said proceeding for the limitation of its liability as owner of the said barge Bolikow, executed in due form of law for the value of the petitioner's interest in the said barge Bolikow and her pending freight, with 6 per cent. interest thereon from December 23, 1920, within 10 days after such values shall have been determined by appropriate proceedings in the said court, and order fixing such value shall have been entered herein, and pending the filing of such bond or stipulation as aforesaid this undertaking shall stand as security for all claims in the said limitation proceeding."
After the filing of that instrument the court made an order which granted the above-mentioned prayers of the petition as to the issuance of a monition and of an injunction. Thereafter, without any further action being applied for or taken by the court with reference to fixing the value of the barge or its pending freight, the cause proceeded to a final decree, which denied the petition for limitation of liability, and sustained, in whole or in part, claims asserted in that proceeding. That decree contained the following:
"And it further appearing to the court that neither the petitioner, nor its stipulator, nor any other party or interest, has moved for or caused any reappraisal or appraisal of the petitioner's interest in said barge and her pending freight, or either of them, or caused any order to be entered by the court fixing such value, except as was done by the approval and...
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