The Beaconsfield
On Certificate from the Circuit Court of Appeals for the Second Circuit.

This case, which is an outgrowth of that of The Britannia, 153 U.S. 130, 14 Sup. Ct. 795, arose upon a certificate of the circuit court of appeals touching the liability of the Beaconsfield to respond for a moiety of the loss upon her cargo by reason of her collision with the Britannia. The questions certified are based upon the finding of facts printed in the margin. 

Upon this state of facts, the court of appeals certified to this court for its decision the following questions: (1) Whether, in entering said final decree, condemning each vessel in a moiety of said damages, the circuit court obeyed the mandate of the supreme court.

(2) Whether, upon the above statement of facts, the libelant Albert W. Sanbern was entitled to a final decree condemning the steamship Beaconsfield, her engines, tackle, apparel, and furniture, in a moiety of the cargo damage, amounting to $31,526.64, as adjudged in the said final decree.

(3) Whether, upon the above statement of facts, the libelant Albert W. Sanbern was entitled to judgment against William Libbey, surety, n  the sum of $23,000, as directed by the said order of June 12, 1894, and as adjudged in the said judgment entered pursuant to the said order, and filed June 12, 1894.

J. Parker Kirlin, for the Beaconsfield.

Wm. G. Choate and Sidney Chubb, for Albert W. Sanbern.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes

1. On December 21, 1886, John Lucas Cotton, master, and George Cleugh, owner, of the Beaconsfield, as bailees of her cargo, filed an amended libel against the Britannia in the district court for the Southern district of New York, to recover the sum of $45,0 0, damage to such cargo by reason of her collision with the Britannia, for which the latter was charged to have been solely in fault.

2. On January 7, 1887, the Compagnie Francaise de Navigation a Vapeur, owner of the Britannia, answered this libel, claiming the collision to have been caused solely by the fault of the Beaconsfield.

3. On the same day it also filed a petition against the Beaconsfield, reciting the former proceedings, averring the collision to have been caused wholly or partly by the fault of the Beaconsfield; that she ought to be proceeded against in the same suit for the damage to her cargo; and prayed for process against her to the end that she might be condemned for such damage.

4. The Beaconsfield was arrested under process issued upon this petition, and was released from custody upon her claimant, Cleugh, filing a stipulation for value in the sum of $23,000, with William Libbey and George C. Magoun as sureties.

5. Subsequently George Ciengh, owner of the Beaconsfield, answered this petition, denying the liability of the Beaconsfield, and excepting to the jurisdiction of the court to enforce any liability against her, by reason of the proceedings taken under this petition. John Lucas Cotton and George Cleugh, as libelants, also answered this petition, denying liability on the part of the Beaconsfield.

6. The case came on to be tried in the district court upon these pleadings, and also upon cross libels by the owners of the Britannia and Beaconsfield against each vessel, respectively, for damages sustained by the vessels themselves. The district court found both vessels to have been in fault, and divided the damages. The case is reported in 34 Fed. 546.

7. A final decree was entered in the district court July 9, 1889, in favor of Cotton and Cleugh, libelants, against the steamship Britannia and the steamship Beaconsfield in the sum of $50,249.26, and condemning each vessel in a moiety of said sum, amounting to $25,124.63.

8. Cross appeals from this decree were taken to the circuit court by George Cleugh, claimant of the Beaconsfield, and the Compagnie Francaise, claimant of the Britannia.

9. Pending these appeals, and on October 3, 1890, Elizabeth Cleugh was substituted as claimant of the Beaconsfield, in place of George Cleugh, deceased, and the libel of John Lucas Cotton and George Cleugh against the Britannia was continued in the name of Cotton alone.

10. Upon hearing in the circuit court upon the cross appeals the decree of the district court was reversed, and the Britannia found to have been solely in fault for the collision. 42 Fed. 67; 43 Fed. 96. A decree was thereupon entered in favor of Cotton, as bailee of the cargo of wheat laden on the Beaconsfield, against the Britannia in the sum of $53,907.11.

11. From this decree the Compagnie Francaise appealed to the supreme court October 8, 1890. John Lucas Cotton, libelant, did not appeal from the decree of the circuit court.

12. The appeal of the Compagnie Francaise came on to be heard in the supreme court with the appeals of the Britannia from the decree dismissing her libel against the Beaconsfield, for damage sustained by the vessel itself, and from the decree sustaining the libel of the Beaconsfield against her for like damage sustained in the collision.

13. In the supreme court both vessels were found to have been in fault, and a mandate issued directing the decree of the circuit court to be reversed, and the cause to be remanded, with directions to enter a decree in accordance with the opinion of such court, and for further proceedings in conformity, etc.

14. Upon the further proceedings so ordered, an affidavit was filed, showing that a telegram had been received from the owners of the Beaconsfield as follows: 'You must not consent to any decree in our names, except against Britannia for half damages. We only agreed to be libelants as bailees of cargo against Britannia. We forbid our names being used in any decree against Beaconsfield for loss of cargo. Please do needful to give effect to this. [Sin ed] Cleugh, Cotton.' A like telegram was addressed by libelant Cotton to his own counsel.

15. Libelant then moved, June 1, 1894, that the libel be amended by substituting the name of Albert W. Sanbern, owner of the cargo of the Beaconsfield, as sole libelant in the place of John Lucas Cotton, and for the entry of a final decree in the name of Sanbern. This motion was opposed by Elizabeth Cleugh, claimant of the Beaconsfield, and by the sureties, but was granted by order of June 4, 1894; and on the same day a decree was entered

in favor of Sanbern, as owner of the cargo, against the Britannia and Beaconsfield, for the sum of $63,053.28, and condemning each vessel for one-half of this amount, namely, $31,526.64. By this decree the stipulators on the part of both steamships were ordered to show cause why execution should not issue against them for the amount of their stipulations.

16. The sureties upon the stipulation of the Beaconsfield made return to the order to show cause, alleging the filing of the libel by Cotton, master, and Cleugh, owner, of the Beaconsfield, as bailees of the cargo; that there was no allegation of fault on the part of the Beaconsfield in this libel, or in their answer to the petition of the Compagnie Francaise; that the question of liability between the Beaconsfield and the libelants was never actually litigated, and the bills of lading under which the goods were carried had never been interposed by way of defense; that at the time the stipulation was given, Cotton and Cleugh were the parties libelant, and continued to be such until after the final decree in the district court, when the libel was amended by dropping the name of George Cleugh, who had died, and continuing it in the name of Cotton alone, although Elizabeth Cleugh, as administratrix of the colibelant, was substituted in George Cleugh's place as claimant: that, after the mandate was handed down, the libel was again amended, by substituting the name of Sanbern, as owner of the cargo, in place of Cotton, one of the bailees. By reasons of these matters. Libbey, the surviving surety, claimed to be exonerated from his liability on the stipulation of value of January 10, 1887. An order was, however, entered directing judgment and execution against Libbey in the amount of his stipulation, $23,000, and judgment was accordingly entered against him.

17. Thereupon Elizabeth Cleugh, claimant of the Beaconsfield, appealed from the decree against the steamer, and William Libbey, surety, appealed from the judgment against him, to the court of appeals, each assigning separate errors, and bringing up the matters aforesaid for review by such court. Meantime the decree against the Britannia for a moiety of the damages had been paid.
Beaconsfield