THE CITY OF LINCOLN,
their own fault in not sending for the goods as agreed. After the lapse of a reasonable time for removal, her liability as insurer would end. When that liability ended, she remained liable, as bailee; for reasonable care only, until the cargo was accepted; and this reasonable care would extend back to and include the original selection of the wharf, precisely as it would embrace any other possible cause of loss or injury. Reasonable care as respects the selection of a pier, doubtless requires that no known risks should be unnecessarily inourred. The same care is required that a prUdent man would exercise as respects t.he safety of his own property. But this does not require the ship to take upon herself the duties of a wharfinger, or to make an inspection and survey of the internal construction and condition pier to which she resorts. In determining whether due cal'e and diligence are exercised in the selection of a particular wharf,· manyeircumstaIices, doubtless, are to be taken into account. Chief among these are the customs and usages of the trade and of the port., with respect to the particular cargo; the character and amount of cargo to be deposited, and the length of time it is likely to remain; the known reputation of the pier, its obvious condition, and any notice requiring caution brought home to the vessel; the availability of other piers; and in cases of mixed cargo, reasonable regard to the convenience of all the different consignees. Some circumstances in the present case would go to justify the vessel. This pier had been accustomed to be used, to some extent, for the discharge of cargoes of iron. It was designated by the harh(Jr master; and when the agents of the vessel suggested the pier above, he told them that this wharf was just as good. The directions, as regards the use of the pier, were not to any considerable extent departed from, except possibly as to the distribution of the blooms, about which there is doubt. There was other cargo on account of which it was desirable to go to a pier in New York, and there seem to have been but few piers in New York at that time available. On the other hand, many of the piers in the East river were well known to be in poor repair, and neither adapted nor fit to receive heavy cargo. There is evidence that the ship's agents were notified by a competitor that pier 45 had once broken down and was unsafe. The ship's witnesses say that the pier showed "unevenness" and "hollowness," which were signs of decay and weakness; and before the discharge was commenced, the ship was enjoined to pile the blooms but two high. Several of the wharfingers' witnesses also testify that they were notified to "scatter them well on the pier," though this is denied by the stevedore's men. Upon the North river piers, blooms are usually piled four high; upon the Brooklyn piers, six high. The stevedore in this case expressed surprise at the injunction to pile only two high, as he had never before been thus :restricted. These were notices of an emphatic character of the com-
parative weakness of this pier. If they were not such as should have deterred the ship, in ordinary prudence, from making use of this dock at all, they were at least sufficient to require great caution in the use of it. The evidence leaves it in doubt whether the injunction to scatter the blooms well was given before the blooms were actually discharged. The fact that no objection was apparently made to the placing of the blooms as they were placed, though the discharge was under the eye of the wharfingers' agents, is in the ship's favor. But the ship's duty to the cargo is not to be measured simply by the instructions of the wharfinger, after such clear evidence of the comparative weakness of the wharf. 'l'he blooms weFe not scattered, nor well distributed over the wharf. Instead of being placed to any considerable extent upon the two ends of the wharf, which were of crib-work and the most solid, the blooms were chiefly placed close together in the center of the pier, where it was obviously weakest, and where it snapped short off beneath their weight. 'rhe wharf was in fact wholly unfit to receive such a cargo. Repeated notices, and the evident solicitude of the wharfingers, that the blooms should be piled but two high, i. e., one-half or one-third only of the weight usually put upon sound wharves, were a practical warning, as I have said, of the most emphatic character of the comparative weakness of this pier. Ordinary prudence, as it seems to me, would eschew the use of such piers altogether, except under some controlling necessity, such as does not appear in this case; or, if they were resorted to at all, would require them to be used chiefly at their strongest, and not at their weakest, parts. The use of piers known to be weak, for heavy cargoes, like iron rails or r;teel blooms, is in every case hardly better than an experiment; and such experiments do not seem to me consistent with the obligations of ordinary prudence and diligence, in the absence of any controlling necessity. As respects the rights of a cargo-owner to reasonable care for the safety of the cargo in the selection of a pier, and in the use made of it, I should not feel satisfied, therefore, to acquit the ship in this case, even if the same question had not been previously adjudicated upon evidence aJmost the same. The question of liability as between these defendants has, however, already been once determined in an action between them at common law. That action was brought in the circuit court by the wharfingers against the owners of this vessel to recover their damages; and the Owners of the vessel in their answer counter-claimed against the wharfingers their own damages in the detention of the vessel, as well as for the loss of these same blooms. Upon the trial before the court and jury, the court charged that if both parties were guilty of negligen(}e contributing to the accident, neither could recover of the other; that if the wharf broke down, not by the negligence of either, but by some unknown cause, neither could recover; and, finally, that either, not being negligent, might recover of the'
THE CITY OF LINCOLN.
other, if the latter was found negligent; and that the owner of the vessel in that case might recover for demurrage, and also for the 10s8 and injury of the blooms, in all $3,290. The jury found that neither should recover of the other, and judgment was entered accordingly. The cause of the wharf's falling was not inscrutable; there was no evidence reasonably to justify such a finding. The verdict must therefore be interpreted as a finding that both were negligent in causing the fall of the wharf. It thus appears that both the parties, who are the respondents in the present case, voluntarily submitted their claims to a court of common law, each claiming their entire damages against the other. The wharfingers, by their complaint, and the owners of the steamer, by the counter-claims in their answer, having thus voluntarily appealed to a common-law forum, and had their day in court upon this question, I think that the determination then made, that there was mutual fault, should be held binding upon them, in any other action where the same question arises as between themselves. In cases turning upon questions of navigation, indeed, the verdict in a como, mon-law court has been held not to be binding in a court of admiralty, on account of the superior means of determining such questions supposed to belong to admiralty tribunals. The Ann tt Mary, 2 Wm. Rob. 189. But in other classes of cases, I apprehend a prior determination and judgment in a court of common law are binding as between the same parties in admiralty, whether pleaded or given in evidence as respects the same material facts again in litigation. Goodrich v. The City, 5 Wall. 566; Taylor v. The Royal Saxon, 1 Wall. Jr. 333; The Tubal Cain, 9 Fed. Rep. 834, 838, and note. Undoubtedly the verdict and judgment in the former action between the present respondents is no adjudication or bar, as respects the libelants in this case, who were not parties to that suit. The present action, however, concerns the same subject-matter, and the very question once determined as between these co.defendants now arises again as between themselves. The analogy of the rule in equity would seem to be applicable, which makes a former decree determin· ing the rights of co-defendants binding in a subsequent action be· tween them on the same subject-matter. It is immaterial, it is said, how the parties are arranged, ,whether upon the same side, or on opposite sides in the cause, so long as their rights are directly in litigation, and each has the opportunity of asserting his claim and ):lis defense, and to cross·examine the witnesses. Farquharson v. Seton, 5 Russ. 45, 62; Daniell,Oh. Pro *1010, *1013; Nevil V. JohnBon, 2 Vern. 447. There is no question in my mind that the breaking down of the wharf was by the fault of one or both of the defendants; and that being established, it would seem to follow that either of the defend. ants might offer the verdict and judgment in the former action be. tween themselves as evidence that the injury to the blooms arose
from the mutual fault of both, and as a basis of their equal liability, as between themselves, in a court of admiralty, where, in such a case, the damages may be divided. But whether the former verdict be strictly conclusive or not, in a case of doubt upon such a question, I should hesitate to differ from the finding of the jury, where there is so much evidence to show faults on both sides. It follows that the libelants should have judgment against both defendants, with costs, with a decree in the form directed in The Alabama and The Gamecock, U. S. 695; The Civilta and The Restless, 108 U. S. 699.
(Oireuit Oourt, E. lJ. New York. July 8, 1885.)
COLLISION-TuG AN)) FERRy-BOAT CROSSING-RIGHT OF WAy-DuTY TO STOP
4ND BA,.CK-RULE OF ApPEAL.
A collision occurred at the South Ferry slip, New York city, )Jetween the ferry-boat C., on ope of her trips from Brooklyn to New York. and the tug B., which was coming mto the East river from the North river, having a bark in tow on a hawser. The collision occurred in the day-time, the weather clear, and the vessels were on crossing courses, the B. having the C. on her starboard hand. In the district court the tug was held entirely in fault iIj. attempting to cross the ferry-boat's bows when the latter had the right of way. Held, on appeal to this court, that the ferry-boat was also in fault in not stopping and backing when she saw that the tug was persisting in on, and did not respond affirmatively to' the ferry-boat's signal of one whIstle, and that there must be a decree apportioning the damages and the costs of the district court, and giving the tug the costs of the circuit court. See the opinion of the district court. The Oolumbia, 8 FED. REp. 716.
Admiralty Appeal. Owen ci: Gray and F. D. Sturge8, for the tug. B. D. Silliman and N. P. Schenck, for the ferry.boat. BLATCHFORD, Justice. It is contended for the Baxter that the evi. dence shows that the Baxter gave a signal of two whistles; that the Columbia answered by a signal of three whistles; that the Baxter then gave a signal of five or six sharp blasts, followed by a signal of two whistles; that the Columbia answered with a signal of three whistles; that the Baxter then gave a signal of two whistles; and that the Columbia answered by a signal of three whistles. This concurs substantially with the statement of the libel, that the Baxter gave a signal of two whistles; that the Columbia answered by a sig·' nal of three; that the Baxter then gave a signal of several sharp ahd distinct blasts, and then a signal of two whistles; and that the Columbia paid no attention to suoh signal, and, although it was repeatedly given, disregarded it and kept on. As the vessels approached each other, the Bax.ter had the Columbia on her starboard side, and
,1Beported by R.D.&.Wyllys Benedict, Esqs., of the New York bar.