Page:Federal Reporter, 1st Series, Volume 3.djvu/253

 2i6 r&DEBAL B8P0BTBB. �Keabnbt ». A Pile-Dbiteb and Stage, ete. (District Court, D. New Jertey., 1880.) �1. MoBTQASBE — ^LiBBL Ts Rbm. — A mortgagee in possession has a right �to file a libel in rem for earnings from towage. �2. Towage— CoNTBACT—OsTKNSiBliE Ownbr. — Such libellant Is entitled �to recover the sum due for such towage service, although the contract •was made with the father of the libellant as the ostensible owner of the vessei, and although the respondents had been forhidden by an order of a state court, founded upon supplementary proceedings, to pay over such earnings to the father of the libellant, "or to any one for him, or to any person wliatever, until the further order of the said court." �3. Same — CosTs. — In such case, however, although the libellant was not �a party to the proceedings in the state court, the respondents are net liable in costs for the nonpayment of auch earnings. �Libel m rem. �Nixon, D. J. It îs not necessary to decide în this case, as •was suggcsted at the hearing, whether the master of a vessei can maintain in his own name a libel in rem for a towage Bervice. Such a contract, doubtless, is a maritime one, and M cognizable in a court of admiralty in a suit by the owner. But in the present case the master is also the mortgagee and th« mortgagee in possession, and as such is entitled to ail the earnings of the vessei that the owner might claim if he had retained control. Having such a relation to, and claim upon, the vessei, he may use ail the remedies that the legal owner has, and one of these is the right to file a libel in rem for earnings from towage. But the respondents have put in a claim, and have declined to pay upon two grounds : (1) Because the contract for towage was made with John Kearney, the father of the libellant, with whom they bargained as the ostensible owner of the Katy Smith ; (2) because they had been restrained by an order of the supreme court of the Btate of New Jersey, made February 21, 1879, from the pay- ment of the said debt "to John Keamey, or to any one for him, or to any person whatever, until the further oïder of the paid court," ����