pro forma in the district court, it being thought more convenient for the parties that I should decide it, as I tried the case when district judge. The owners of the cargo could have proceeded against either vessel; but one having been destroyed, the liability of the owners of that vessel, the Helen Mar, was limited to her value. Rev. St. § 4283. They therefore brought their libel against the C. H. Foster, and have recovered a decree for their whole damage. In the two cases between the vessels a balance is struck, and there is found due to the owners of the Helen Mar a sum, not very large, but somewhat more than half as much as the C. H. Foster has been decreed to pay to the owners of cargo. Under these circumstances, the owners of the C. H. Foster represent that they ought not to be obliged to pay the whole sum decreed to the owners of the Helen Mar, when they will have a right to recover against them one.half of the damages paid on the cargo, which is nearly as large, and these owners are not within this jurisdiction. The first question, then, is whether the owners of the Helen Mar are bound, as between themselves and the owners of the C. H. Foster, to contribute for the cargo out of the damages due them for the loss of their vessel. It seems to me that this question must be answered in the affirmative. As between these parties the damages represent the vessel, and it i!- a question how much each ought to contribute. It is upon this principle that a cross·libel is brought in such cases against tM owners of the lost vessel, not that the libellants expect to recover personal damage, but that the amount may be properly adjusted between the two vessels, so that their own liability may be diminished. Such were the facts in another case, where one of the vessels, which happens to have the same name as the vessel lost here, was a total los8, but it was taken for granted that she was to contribute. The Ontario v. Helen Mar, 2 Lowell, 40; 1 Holmes 467. I have seen a copy of an able opinion of Judge Choate to the same effect. Leonard v. Whitwill, December 12, 1879. The arguments turned chiefly upon the point of pleading whether there is any mode by which the owners of the C. H.
Foster can obtain this contribution in the present state of the proceedings, or by an amendment. This point does not seem to me to preseJ;lt any difficulty. Part of the damages which the owners of the C. H. Foster have suffered are those which her owners have been, or will be, obliged to pay for the cargo, and they come in simply under a claim for damage; as in the well-known insurance case, where, in an action on a. policy, the assured recovered the damages paid for collision with another vessel. Nelson v. Suffolk Ins. Co. 8 Cush. 477. The supreme court of the United States decided that point of insurance law differently from the judgment in Massachusetts, but not on the point of pleading. If, therefore, the libellants in Coombs v. Duncan (No. 1413) had paid for the cargo before bringing their libel, they would properly have included the amount in their claim for damages to be set against those recovered of them in No. 1412. If they do so now it is not too late, because a decree in admiralty is often conformed to facts arising after the libel is filed. The money should be paid into court for the owners of the cargo within 15 days from the date of this opinion, and thereupon the decree in Coombs v. DU1!'can should show that one-half this sum is included in the damages, so that no . question can arise hereafter upon that subject. The libel may be amended if the parties think it desirable.
'MAYO and others v. CLARK and others. CLARK and others v. MAYO and others.
(CirCUit, Oourt D. Ma88achu8etta. Apl'il17,1880.) Tow AGE
In Admiralty. John C. Dodge and Frederick Dodge, for libellants. C. T. Russell and C. T. Russell, Jr., for claimants. LOWELL, J. The decision of this case depends upon the single question whether,. under the circumstances in which the vessel was taken in tow, the libellants were justified in
FEDERAL REPORTER. /
supposing that they had undertaken a salvage service. Nothing was said by either party at the time; and if the wind had gone down rapidly, and the barkentine had been towed to Boston without much difficulty, we might never have heard of a. salvage claim. But matters did not turn out in this way. There was difficulty and danger, and another tug was obliged to come to the assistance of the libellants, to prevent serious danger if not loss to the Frank Lambirth. That tug was undoubtedly a salvor, and has been paid as such since the case left the district court. Upon the whole evidence, which was very elaborate and full, I am of opinion that the Frank Lambirth was in danger at the time the tug Woolley came up. I think there had been one failure to tack. Some of the witnesses deny this, but they are, perhaps, referring to a later period than at which the second mate of the barque says that they did try to go about without success. Whether he is accurate or not, I think the vessel either was, or was thought to be, unable to tack, and would have found it necessary to come to anchor in a very short time; and, as she was on a lee shore, there can be no doubt that if she had been at anchor there would have been, as the wind and sea then were, need of speedy relief. I do not think that the libellants were as careful as they should have been in respect to the scope of hawser, and it is not improbable that the parting of the hawser would not have occurred if more scope had been given. But I am not at all sure that this accident had much effect upon the result of the adventure. Without it the tug must have had assistance, and the assisting tug would have been a salvor. Upon the whole, while I would not encourage any l'eal or supposed readiness which owners of tugs may have to convert a simple towage service into one of salvage, I find that the peculiar facts of this case relieve it of any such appearance. The amount awarded was liberal, but no serious objection was raised to it. Decree affirmed, with costs.