in order to absolve him from hig Bhare of the responsibility in case of her subsequent lOBS. Nor can it be Buffered that old barges be run until they sink, and the whole 10BB be then charged upon the tug. Judgment may be entered for the libelant for one-hall his damages, with costs, with a reference to compute the amount.
(Di8triot (loure, W. D. Penn8ullJania. May Term, 188S.\
L CoLT,ISION-FAILURE TO ANBWER SIGNAL-RULE 8. Where two steamers are running in the same direction, and the one astern. under the eighth rule for the government of pilots on western nvers, signals her desire to pass the one ahead, the latter is boum! to answer the signal, and the failure to respond is a fault in her; but such failnre, so far from exonerating the pursuing steamer from taking the care demanded by the circumstances to avoid a collision, calls for special caution on her part. 2. Tow-BoAT ON WESTERN R[VER-LIABILITY FOR NEGLIGENOE-NoT CoMMON CARRIER-ABANDONMENT OF WRECKED Tow. While the owners of a western-river tOW-boat, who have undertaken to tow a barge and deliver it at an agreed place, are not common carriers, they are bailees for hire, bound to fulfill their engagement, unless prevented by some cause affording lawful excuse; and if, by reason of their culpable negligence, the barg-e while in their exclusive custody is wrecked and sunk, the duty of rescue, if practicable, is upon them. Hence, when sued by the owner for a total loss, they will not be heard to allege that he might have mitigated th.e damages by raising the barge.
Barton Son, for libelant. Knox d; Reed, for the D. Newcomb. Kennedy d; Duty, for the C. W. Batchelor. J. The complainant was the owner of a. barge having lying in the Allegheny river at the foot of aboard a cargo of Thirty-second street, Pittsburgh, which the steam tow-boat D. New. (Jomb undertook to tow from that point to Braddock, on the Monongahela river.' On the morning of April 21, 1882, the barge was delivered into the custody of the Newcomb, which proceeded therewith down the Allegheny river. At this time the steam-boat C. W. Batchillor was .coming up the Ohio river to her landing on the Monongahela river at the foot of Wood street, in the port of Pittsburgh. When the Newcomb had reached the Union bridge which spans the Allegheny near the confluence of the two rivers, the Batchelor was
THE D. NEWCOMB.
several bundred yards below. The boats were then at least one-half It,mile apart, but were plainly.visible to, and were seen by, their respective pilots. When the pilot of the Batchelor first saw the Newcomb, he wa.s in doubt whether her destination was do'Vnthe Ohio or up the Monongahela; J,mt when, from her movements, he was satisfied. it was the latter, he signaled under rule 8, governing steamers running in the same direction. His signal was one sound of the steam-whistle, signifying his desire to pass up to the right. At this time the boats were from two three hundred yards apart. To the Batchelor's signal the Newcomb gave no answer. The Batchelor, however, proceeded without. abatement of speed up stream, in accordance with her signal, keeping as. close to the south shore as was reasonably safe, having respect to the craft lying there. When she passed under the Union bridge the engine of the Newcomb was stopped, but to avoid the bar Which is immediately below the bridge steam was turned on and a few forward revolutions made. The libelaat's barge. was lashed to the starboard side. of the tow·boat, which rendered it less easy to round the point at the confluence of the rivers than ,it would have been )lad it been on the larboard side; but the starboard position of the barge was not of itself negligence. However, before the Newcomb had rounded the point, and while yet nearly square across the river, she collided with the Batchelo.r, striking the latter on her larboard side about midship with the forward end of the barge, which projected in front of the boat. The stroke was with Buch force that the guard of the Batchelor was broken in, and the Batchelor, catching one of end planks of the barge, tore it pli. The barge taking water rapidly, the Newcomb cut the lines and turned it adrift, and it sunk in a few minutes. _ That the disaster was not occasioned by any vis majo'!' is certain. Undoubtedly it was the result of culpable negligence.. The collision it was broad daylight; occurred about 8 o'clock in the morning, the boats had been plainly visible to each other for some consider. able time; there was ample space of water and no unusual current or any stress of weather. Indeed, there was no sort of excuse for on the other. But . the collision; therefore each boat puts the the libelant charges negligence upon both boats, has filed this libel against them jointly. A very oareful examination qf the proofs hashrougbt me to the conclusion that the libelant is right·. The first default was on the part of the Newcomb in not answering the Batchelor'tl signal. The rules imperatiyely required her to answer.
She baa the privilege of choosing her course, and the Batchelor was bound to conform to her return signals; but she gave none. Her pilot, Kirkwood, says, "I expected her [the Batchelor] to stop her engines when I refused to answer her signal." But, according to the weight of the testimony, tlw silence of the Newcomb indicated to river men escence in the Batchelor's expressed desire to pass on the right, and the pilot of that boat so understood it. The pilot of the Newcomb ought not to have left the matter in doubt. Moreover, he knew the intended movements of his own boat, the then strength of the current of the Allegheny, the difficulty in rounding into the Monongahela by reason of the position of the tow, the proximity of the bar and its interference with the free use of his wheel, and in the exercise of reasonable nautical skill he should have been alive to the danger of col· given lision in time to warn off the Batchelor. Such within any reasonable time, would have averted the catastrophe.' The failure to give such signal was the second fault of the Newcomb, I think; and, in my judgment, there was a third. The testimonyespecially in connection with the diagram of the locus in quo-satisfies me that the Newcomb failed to back as soon as she might have done, and, under the circumstances, should have done. True, she was backing at the time of the but she began too late. The effect of the collision upon the Batohelor demonstrates that the wit. nesses are right in saying that the Newcomb still had considerable headway. But clearly the Batchelor was also to blame. The failure of the Newcomb to answer her signal did not exonerate her from exercising the care which the occasion plainly demanded. Indeed, in: the thEm circumstances of the Newcomb, her failure to answer the signal called for special caution on the part of the pilot of the Batchelor. He ob. served thatUre Newc'omb prop'Osed to round into the Monongahela river, and was in the execution of that maneuver. He also saw, or was ]lound to see, that she' had not yet succeeded instraightenirig hMself in the stream, but that her movement with un:checkedhead· way was across thtl 'stream, in the direction of the' pathway of his own boat. Nevertheless, the Batchelor proceeded with undiminished sP'ged. Ascending against considerable current, it is shown she could have been stopped within the distance of 40 to'50 It is, therefore, manifest' that in the exercise of any reasonable d(lgree of care on the part of the 'pilot of the Batchelor he must have seen the impendillg dariger and could easily have avoided the collision by
stopping his boat. Augustus Seiferth, an expert witness, who was on the guard of the Batchelor, testifies: "There was' plenty of room between them [the boats) until they got close together. I don't think either one paid much attention until they were right into each other." 'fhis I have no doubt is the exact truth. The cargo of cinder did not belong to the libelant, but he had expressly assumed the risk of its safe deliYery at Braddook, and is responsible to the owners, who have rendered a bill against him. It therefore is properly embraced in his claim. Its value does not seem to be disputed. Having lost his commissions as the direct result of the collision, the libelant is also entitled to l'ecover them in this suit. Nixon v. The George Lysle, 2 FED. REP. 259. The several smaller items of claim, for the furniture, etc., of the barge, seem to be sufficiently proved. The barge itself; however, is; I think, somewhat overvalued by the libelant. Here the 'testimony of Mr. Thompson, who overhauled and repaired the barge shortly before the collision, is the most reliable Avidence. His estimate, which includes the cabin, is $900, and this valuation I adopt, thus reducing the aut's bill $125. It is alleged, however, on the part of the defense that the barge and cargo need not have been a total loss, but might have been raised with comparatively little expense and trouble, and the loss thereby greatly 'reduced. The proofs, however, it seems to me, fail to sustain this allegation. In the first place, it is shown that the water rose within a day after the collision and remained so high, according to the testimony of William Merrington, an experienced wrecker, and the libelant, it was not possible to raise tile barge for five or six weeks. This testimony is not impugned by any witness, and in view of the further evidence that the work would have taken six or seven days, is not, I think, contradicted but rather corroborated by the water record. What the condition of the wreck was at the end of five or six weeks is problematical. It is certain that at any time it would have cost considerably more to raise the cargo than it was worth. And, according to the weight of the evidence, the net saving from the whole wreck, in the most favorable view, would have been quite small. Taking into account the loss of time, it is, at least, very doubtful whether any substantial benefit would have resulted to the defendants. So that, were this defense available to the defendants, I think it has . not been made out. But it seems to me the defendants are not in a position to invoke the principle enforced in the cases of Clarke v. The Fashion, 2 Wall.
Jr. q39, and The Baltimore, 8 Wall. 377, that the owner of a wrecked and sunk vessel cannot abandon her as for a total loss, if she can be raised and the damages thus lessened. In neither of those cases, and in no case to which my attention has been called, did the wrongdoer have the charge of the injured vessel at the time of the collision, or stand in any contract relation thereto. But here the Newcomb had undertak.en to tow -the libelant's barge and deliver it, with its cargo, at Braddock; and in pursuance of this engagement she took actual possession of the barge, which was lashed to her side and in her exclusive custody. It is true, the owners of the tow-boat, in respect to the barge, were not common carriers; but they were bailees for hire, and bound to carry out their undertaking with that degree of caution and skill which prudent navigators usually employ in similar services. The Webb, 14 Wall. 406; Brown v. Olegg, 63 Pa. St. 51.. Herein they failed; and the barge being in a sinking condition, by reason of the want of proper care on the part of the Newcomb, was, by the master of that vessel, .cut loose; and, if improperly abandoned, it was so abandoned by the Newcomb. The owners of that boat were under contract obligation to deliver the barge at Braddock, unless prevented by sottle cause affording lawful excuse; and, having negligently sunk the barge, the duty of rescue, if practicable, was upon them. Let a decree be drawn in favor of the libelant, in accordance with the views herein expressed, for the sum of $1,344.50, with interest from April 21, 1882, and costs.
ATLANTIC MUT. INS. 00. V.
279 and others.
ATLANTIC MUT. INS.
(District Court, S. D. New York. April 9,1883.)
Rule 21 in admiralty does not authorize a personal judgment the claimants in an action in rem except against such as hav.e signed the stipulation given in lieu of the vessel seized.
ACTION IN REM-BAR-SUIT IN PERSONAM.
An action in rem is not a bar to a subsequent suit in pel'8onandor the SlLme claim, unless the defendants executed a stipulation for the amount ot the claim. "
Where the owners of a bark sunk in a collision sued in rem to reC9ver thl! value of the bark, and also for the value of the cargo owned by others, anli a stipulation was given and accepted in place of the veBBelseized,signed by one only of the several owners and claimants, and the insurers of the cargo afterwlLrds commenced an action i1i p61'8Qnam for the loss of the same cargo, against the same owners who were the claimants in the former suit, held, that the plea in the latter suit of the former action pending was not good, cause in the former suit all the claimants could not be held personallyresp'oD" sible for the loss.
Both vessels being in fault, he1,d, that the amount recoverable in, the suit in rem for the 1088 of the vessel and freight should be applied iIi payment of the libelants' share of thcloBB of the owncrs of the cargo, and applied upon the claim in personam.
SAME-JUDGMENT IN REM.
For any excess over their own share of the loss of the cargo for which the they would be respondents in the suit in person(Jm would remain liable, entitled to judgment against the libelants in the suit in 1'8m.
In Admiralty. Scudder x Carter and Beo. A. Black, for libelants. A. O. Salter and U. D. Benedict, for respondent. J. The libel in personam in this case was filed on March 15, 1880, against the ownerso£ the steamer City of New York, for the loss of the cargo and pending freight upon the bark Helen, through a collision between the bark and the stea.mer on June 28, 1879, for which lose the libelant, as insurer, had paid the owners. Some eight" mouths previous, on the third of July, 1879, the owners of the bark filed their libel against 'the steamer in relnto recover both for the loss of the bark as well as for the cargo and pending freight; and in that suit the owners of the steamer intervened as claimants and p;ave a stipulation for the agreed value of the stea.mer, in July, 1879, which was approved and accepted by the libelant. ' The respondents in thl;l