CUNNINGHAM v. SWITZERLAND MARINE INS. oo. 47
the vessel was unseaworthy when she sailed, the policies of insurance never
attached. and cargo owners could not recover o the insurance companies
the expenses of defending the former suits.
In Admiralty. A
Wheeler eb-Souther, for libelants.
Butler, Stillman cf Hubbard, for respondents.
Baown, J. The above libels were filed by cargo-owners to recover
the expenses of defending a suit on a bottomry bond, under the "sue
and labor" clauses of certain policies of insurance issued by the re-
spondents upon the cargo of the Julia Blake, from Bio to New York.
On the voyage the vessel put into St. Thomas, where extensive nec-
essary repairs were made, in order to procure which a bottomry bond
was given to the Bank of St. Thomas upon her hull and cargo. The
` vesselwith her cargo uninjured, subsequently arrived in New York.
The vessel, freight, and cargo were thereupon libeled for the enforce-
ment of the bottomry bond. Practically no defense in that suit was
made as respects the ship and freight. The controversy as regards
the cargo was carried to the supreme court. The decisions of this
court and of the circuit court were there aihrmed, and the cargo re-
leased on the ground that no communication was had with the own-
ers of the cargo prior to executing the bottomry bond. The Julia
Blake, 16 Blatchf. 472; S. C. 107 U. S. 418; S. C. 2 Sup. Ct. Rep. ~
692.
At first the insurers employed proctors and counsel to defend against
the claim on bottomry. They appeared for the owner of the vessel,
and answered in behalf of the owner; and also as agent or carrier, in
behalf of the cargo. Some months afterwards the libelants, owners of
the cargo, themselves intervened and answered separately by proctors
and counsel of their own; and, after the decree in the district court,
they represented mainly, if not solely, the interests of the cargo in
that suit. The insurance companies had previously agreed to pay
any sum which might be fixed by the average adjusters as general
average. The libelants now sue for their expenses and counsel fees
in that litigation. V _ _
In the present action the respondents have set up in defense the
unseaworthiness of the vessel when she left Bio, and allege that the
policies consequently never attached. As the claim in suit rests upon
the stipulations of the policies only, there can be no recovery if the
policies never attached, nor became operative as respects the cargo.
It is urged that this defense ought not to be regarded as made in
good faith, because no such ground was taken in the previous litiga-
tion, and because the insurance companies did not act upon that the-
ory; but during the progress of the action in the district court, at least,
were active in defeating the bottomry bond upon other grounds. Two
answers are given to this contention that I think are suflicient. No is-
sue of unseaworthiness would have been material in the former action.
On the contrary, the more unseaworthy the ship the greater would be