
    THE BATTLER. WESTERN ASSUR. CO. et al. v. SCHRADER et al.
    (Circuit Court of Appeals, Third Circuit.
    February 18, 1896.)
    Towage — Loss of Babges — Liability op Tug.
    Appeal from the District Court of the United States for the Eastern District of Pennsylvania.
    This was a libel in rem by the Western Assurance Company of Toronto, Canada, against the tug Battler, to recover damages for loss of coal, insured by libelant, which was shipped on the barges Tonawanda and Wallace, and lost, with them, through the alleged negligence of the tug. Erank M. Neall, trustee, as claimant of the Battler, filed a petition for limitation of liability. See 58 Fed. 701. The district court hfeld that libelant was not entitled to share in the proceeds of the tug because it had refused to join with the owner of the barges in an attempt to hold the tug liable, and had stood by, pending the suit brought by him (see 55 Fed. 1006, and 72 Fed. 537), and did not present its claim until a* decree had been obtained therein. The court hold that, by such conduct, the assurance company had waived or forfeited its claim, in so far as the libelant in that suit was concerned. 67 Fed. 251. From this decree the assurance company appealed.
    John F. Lewis, for appellant.
    Henry Flanders, for appellees.
    Before AGHESON and DALLAS, Circuit Judges, and WALES, District Judge.
   ACHESON, Circuit Judge.

The decree we have just rendered in the case of Neall v. Schrader, 72 Fed. 537, makes it unnecessary for us to consider the questions raised by the appeal of the Western Assurance Company. The views we have expressed in our opinion in the other case require a reversal of the decree of the court below in this case. In remanding this record, however, we will make no order with respect to the costs in the court below in the proceeding for the limitation of the liability of the owner of the Battler (No. 115 of 1893) 58 Fed. 704, but will leave the question of costs in that proceeding to the judgment of the district court

The decree of the district court is reversed.  