HOOPER et al. v. KUNKLER TRANSP. CO. et al., 1 F.2d 846

BOURQUIN, District Judge (after stating the facts as above). Appellants’ first contention is that the condition for redelivery of the ship is invalid and that the bond can be exonerated only by payment of the recoveries- In support of this they appeal to Comp. Stat. § 1567, and to rule 12, Supreme Court Admiralty Rules, which provide that a claimant may recover possession of the vessel upon bond in double the amount of libelant’s claim, and conditioned to answer tho decreo and to abide by and pay the money by it awarded.

Their argument is that thus only can claimant secure delivery of the ship; that delivery extinguishes the lien, the court loses jurisdiction over the ship, and it cannot be again arrested for the same cause, nor the court re-vested with jurisdiction of it by order, by consent or otherwise; and that the invalid condition for redelivery should be rejected as surplusage. Had claimant sought delivery of the ship without libelant’s consent, as the statute enables to be done, it must have given bond in compliance with the statute. In that event it may be assumed that appellants’ contention in the main would be sound.

But claimant proceeded otherwise and upon agreement with libelant. The latter consented to the alternative condition in the bond to pay the award or to redeliver the ship. The consequence is that, instead of the lien extinguished by bond filed, as it would be, had claimant pursued the statutory method, the lien continued to attach to the ship after delivery to claimant, as it attached before seizure by libelant. In this is nothing prohibited by or contrary to statute, rule, or principle.

Statute and rule do not purport to be exclusive, to interfere with liberty of contract, or to restrict the freedom of the parties to agree as they will in respect to maritime liens. That in this case the parties actually intended to continue the lien upon the ship while in the possession of claimant is nowhere denied and clearly appears. The effect on rights accruing subsequent to delivery to claimant is not involved. Although counsel have cited no like ease, a like bond was unquestioned in The Two Marys (D. C.) 16 F. 699.

Appellants further contend that in any event the second contingency of the condition is not only to redeliver the ship, but is also to abide by the judgment or order, and that this imports payment. Although to abide by a judgment generally moans to pay the money awarded, obviously that was not the intent of the parties to this bond. Tho same phrase appears in the first contingency of the condition as an addition to tho option to pay tho judgment. In the first contingency it can bo interpreted as a synonym of to pay.

In the second, thus taken (that is, to pay the judgment in addition to redelivering the ship), it is unenforceable and absurd. What the parties had in mind, their dominant thought, and their intent, are plainly expressed by their language, viz. to pay or to redeliver, words of common usage and of unmistakable meaning.

That to both alternatives they appended the technical term, “and abide by” the judgment, indicates some other meaning than to pay, or inadvertence, or that fatal propensity to avoid simple brevity, to uselessly multiply words, and to improvidently resort to technical terms, that too often affects draftsmen and others, confuses documents, conceals intent, and incites or prolongs litigation. The phrase must be assigned some other meaning than to pay, as it reasonably can be, or it must be rejected as inconsistent, contradictory, repugnant, unreasonable, unenforceable, and surplusage.

In so far as redelivery of the ship is concerned, appellants only faintly suggest that, since upon the second libel the ship had been seized by the marshal before the court’s order was made that lie accept redelivery of her from the obligors, the condition to redeliver was not performed. To this it may be answered that in fundamentals maritime law is like other law, and that in general a valid tender of specific property discharges the obligors. See cases 32 Cyc. 173; 38 Cyc. 159, 165.

That consequence attached to the obligors’ tender of redelivery of the ship, made before the said seizure, Furthermore, in the seizure the ship came to the marshal in the same condition as held, and to be redelivered by the obligors, viz. subject to the first libelant’s lien and to all others. Hence the marshal took the ship, and retained it by the court’s order, and otherwise to satisfy the first and all liens, and whether as redelivery from the "obligors, or, as a new and different seizure, the consequences are the same.

Libelant secures all that the bond assured to it, and by virtue of the equitable principles that inhere in admiralty the condition of the bond is taken as performed, and the obligors are discharged. The decree is affirmed.