The opinion
On Petition for Behearing.
The libelants, Victor Salkeld and Dorr E. Warner, and the respondent, Niagara Ferry & Transportation Co., Inc., have each petitioned for a rehearing or for the modification of the opinion and decision of this court rendered herein on July 10,1931.
The petition of the libelants asks for a modification or reversal of that part of the opinion which states and decides that “the libel in the action in rem will be dismissed and the merits disposed of in the action in personam.” I have further considered this question, and have had my attention called to the opinion of Judge Hazel rendered December 6, 1926 (D. C.) 51 F.(2d) 857 , in this same action. Exceptions to the libel herein were then presented to him on the ground that the facts alleged were insufficient to constitute an action in rem. I have concluded to follow Judge Hazel’s reasoning. I therefore change my decision with the effect of striking out from my opinion the above-quoted phrase dismissing the action in rem.
The entry of a decree in the in rem action will, however, be suspended until after the entry of a final decree in the suit in per-sonam. In ease libelants are unable to satisfy their claim for damages as finally determined in the suit in personam, they will be permitted to proceed in the suit in rem and have recourse against the security posted by the respondent in that suit.
Upon respondents’ petition for rehearing, I have studied the points and arguments set forth in the memorandum filed with the petition. I find no reason for modifying my opinion as previously filed.;
As to libelants’ petition, modification of the opinion is made as hereinbefore set forth. As to respondents’ petition, the petition for rehearing is denied.