JOICE V. CANAL-BOATS NOS. 1,758 AND 1,892.
'the plaintiff's argument, that the accounting was prolonged, and that the master's fees were much enhanced by the defendant's reluctance to give promptly the necessary information, and that, therefore, the defendant ought not, in equity, to be repaid this disbursement, has some force; but I have been more impressed by the fact that, as a result of the late decisions of the supreme court, the defendant is successful, and by the consideration that it should reap the benefits of success. I see no controlling reason why, upon a finding that it never was an infringer of the patent, as properly construed, it should pay the master as though it had been an infringer. The sum of $990, disbursed by the defendant, by order of court, to the master, should become a part of the costf', and should be added to the $766.43, as taxed by the clerk. I concur with the clerk in his taxation of the other items in dispute, and in the reasons which he has given therefor, in the statement annexed to the bill of costs.
JOICE 'V. CANAL-BOATS
Oourt, 8. D. New York. June 17, 1887.)
AnmRAt.TY PRACTICE-RULES f5, 59-PROCEEDINGS IN REM-IN PEnsOlllAllWHEN JOINED.
Under the fifty-ninth admiralty rule, the owner of a vessel which has been libeled in rem, for collision, may, by petition, bring into the suit, by process in personam, any other parties, who are not owners of the vessel libeled, alleged to be liable for the same collision. Rule 15. by implication, prohibits only the joinder in a collision cause of a vessel and her owners as co-defendants.
CASE STATED-VESSELS SUNK-WHARFINGER-Co-DEFENDANT.
Where the libelant's vessel, in landing at a wharf, ran upon two vessels recently sunk, which he libeled for collision, and the claimants of the vessel sued brought in the wharfinger as co-defendant, by petition under the fifty-ninth rule. that he caused the vessels to be sunk by negligently mooring, and leaVIng them unprotected, andgivingno notice of the danger, held. that the case was within the general scope of the fifty-ninth rule, and was not forbidden by the fifteenth rule, and a motion to set aside the proc68&- and service was denied.
In Admiralty. On motion to set aside additional process. Hyland &: ZabriBkie, for libelant. Ander80'1i. &: Howland, for claimant·
.;.BROWN, J. Upon the arrest of the two canal-boats named in the libel in a cause of collision, the libelant's vessel having run into the said boats in making her landing, as they lay concealed near a dock at Yonkers, the owners and claimants of the two sunken boats filed a petition, under the fifty-ninth supreme court rule in admiralty; alleging that Peene Bros. were the proprietors of the dock, and were the parties through whose negligence j.he boats were sunk, by mooring them improperly and leav-
lReported by Edward G. Benedict, Esq., of the New York bar.
ing them .unprotected, and that they gave no notice of the danger. FurtherprocE)sS was thereUpon issued against the wharfingers in person, uponwhich they were served and brought in as co-defendants. They now move to set aside the. additional process, and the service thereof, on the ground that, in a cause of collision, under the fifteenth supreme court rille, proceedings in rem and in personam cannot be conjoined; and that the fifty-ninth rule, therefore, does not authorize personal defendants to be brought into a suit in rem such as this. It is undoubtedly true that the construction that has been generally given by implication to the fifteenth supreme court rule in admiralty is that, in It suit for collision against a vessel, her owners cannot be joined as co-defendants, although the master may be joined. The construction is founded upon the maXiim, wpreBEfio unius est exdusio cilterius. The fifteenth rule,. however, plainly has reference to the master and owners of the vessel sued. The Richard Doane, 2 Ben. 112; The ClatBop Chief, 8 Fed. Rep. 163; The Atlantic, Newb.Adm. 139, 156. No authorities have been cited where that rule has been actually applied as respects different vessels, or their owners, as co-defendants. The subject oUhe fifty.ninth rule is wholly different. . It refers exclusively to' other vessels and other owners than the vessel sued, or her owners, who have in the first instance. Its object is remedial. It should be liberally appHed, therefore, to cases that clearly fall within its general scope and purp.ose. The supposed objections, on the other to the union of proceedings in rem and in personam in the same action h.ave Dotpfovadto be real in those many cases in which the union of both modes of proceeding has been long followed. The practice long adopted in this district has been that, except as clearly provided by the rules the'supreme court, the district court has the power and right to regUlate its practice as "the due .administration of justice" shaH seem to ,require. The HudsOn, 15 Fed. Rep. 162, 175, 176; The Zenobia, Abb. 52; The Monte A., 12 Fed. Rep. 336, 337; Vaughan v. Si:.c Hundred and Thirty Casks Sherry Wine, 7 Ben. 506; 14 Blatchf. 517-519; The J.F. Wa,rner,22 Fed.'Rep. 342; The Director, 26 Rep. 708,711. The practical convenience and advantages of this joinderin the administration of justice is often so great that it should, I think, be allowed, in circumstances like pre;li:lnt, when the COllrt is free .to permit it. The fifteenth rule should not, therefore, be extended by any supposed analogy merely, so as to restrict the benefits evidently designed by the fifty-ninth rule. . IUhe owners of another vessel, liable for the same collision,could not be co-defendants, the practical usefullle.ss of the fifty-ninth rule would often ..b!lo seriously impaired, through the loss of the other vessel, or her.absence from the forum, though the owners were present. When two vessels ;are in fault in causing damage to the libelant by collision, the fifteenth rule, I am satisfied, does not prohibiUhe filing of a libel against the. qne vessel in remand against the owners of the other vessel in personam, although in the case of The Hudson, 15 Fed. Rep. 172, this was supposed to be its effect. The case is J;lotprovided for. in the supreme
'rHE DORIS EGKHOFl!'.
court rules, except under the fiiy-ninth rule; and the general scope and purpose of that rule evidently require that such joinder, should be allowed where the second vessel cannot be reached by process; or where, as in this case, the liability of others is in personam only. ,The Hud1Jtm. wpra. The new rule has been frequently applied in this court, some of the cases being reported. The City of Lincoln, 25 Fed. Rep. 835, 836; The E. H. Webster, 22 Fed. Rep. 171. In The Doris Eckhoj, infra, it was applied under circumstances quite analogous to the present. The motion is therefore denied.
THE DORIS ECKHOFF.· LoUD .,. TRE DORIS ECKHOFF,
and Owners of the Steam-Tugs John G. Stevens and R. S. Carter.
(Diatriet Oourt, S. D. New YO'I'k. July 2, 1887.)
Al'lD IN PERSONAM.
IN Tow-RESPONSIlULITY 011' Tow-JOINDER-IN
A large vessel iu tow, and in charge of her own master and crew, who parti. cipate in and in part control the navigation, is jointly liable with the tug for a collision caused by navigating in violation of the state statute, when no protest is made by the master, nor any timely effort to correct the fault. In the absence of one of the vessels, the owners may be joined under rule 59 as defendants along with the other vessel in rem.
Vessels navigating the East river must go in mid-stream, or as near thereto as may be, as required by the statute of the state of New York.
SAME-Two TOWS-Cll.OSS-TmE-CAll.ELESS NAVIGATION.
The schooner Flint was going up the East river with the flood-tide, in tow of the tug Stevens, some 400 or 500 feet from the New York shore, and had reached a point opposite Corleat's Hook. The bark Doris Eckhoff, coming down the rivedn tow of the tug Carter, was in the eddy tide above the Hook, and about 100 or 200 feet from the shore. At this point in the river the floodtide takes a strong set towards the Brooklyn shore. When about 400 yards apart the tugs had signaled once to each other, with intent to pass port to port, but the cross-tide carried the bark to port, and she ran into and sank the schooner. He/d" (1) that both tugs were in fault for disregard of the state statute requiring vessels in the East river to go "in mid-stream, or as near thereto as may be;" that they were also in f&ult in not exchanging sill:nals earlier, and in to pass so close to each other in that part of the river; (2) that the bark In starboarding as she was running into the true tide, was faulty in her navigation, and was not exercising that care and skill which were known to be necessary at that point, and which if observed, would have avoided this collision; (8) that the schooller, whose master and crew were on board, participating in her navigation, and which received the injury while proceeding in a part of the river forbidden by law, should for that rea· son bear a part of the los8.
In Admiralty. Goo· .A. Black, for libelants.
Reported by Edward G.
Esq., of the New