of itdministration:in this 'staie,iatid;;tlmt the latter be-fore the action is brought. On: plJr1JlM plaintiff that, while it:is true that auxiliary 'admifiistrationmnstbe had fnthis smte, when such letters are in factprocnred'the 'petition may be amended by the averment of the' issuance of. suoh1letters, and the action' may be sustained.. It cannot be questioned that 'under, the liberal JProvisions of the Code of Iowa touching amendments, the supreme courto£. Iowa has sustained changes in' the parties' plaintiff and other amendments which in principle would seem to justify the court inholding in the present Case that the action could be maintained. Wells v. Stombock,59 Iowa, 376, 13 N. W. Rep. 340. Whatever, however, is the true ruling on the ultimate question involved, the motion to strike out the averment touching the issuance of the auxiliary; letters in Iowa cannot be sustained. !:Dhe fact that such letters havebeeri issued to plaintit1s iS'1\ material and necessary matter to be averred., Whether the action as now pending can be sustained, having been broilightbefore the issuance of these letters,is a question that may not arisein:the case. If the defendant'does not in some proper mode raise thequestion,-'-it being merely a matter in'abatement,-but tenders someLother issue or issues, thiR defense, if it be one, would be waived. Under these circumstan4:les it cannot be said that this averment of the' issuance of the auxiliary letters is an averment of a wholly immaterial matterj and for this reason the motion to strike is, in this particularj , overruled.
,CoRNWALL l1',Ta;E NEW YORK.
(DiatriQt (Jourl, 8. D. NfJW ,fork.
DAMAGES-REMOTE AND PROXIMATE VAUSE.
February 7, 1889.)
A boat, while loading, was injured by the swells from a passing steamer. Her loading was completlld witlJ, a full cargo, and she was then started towards her destination. 125 miles distant, and foundered near the end of the trip. Hela, that the risk of the trip sho\lld not be thrown upon the steamer, bnt that she was liable only for the injuries occasioned by the swells.
In Admiralty. Hyland &; Zabriskie, for libelant. a. k A. Van Bwntvoord, for claimants.
BROWN,J. The libelant's boat,having received injuries while loading with ice near Albany by thumping upon the bottom in consequence of tbe Ilwells caused by the steamer 'New York in passirlgher, is entitled to recover all the direct and proximate· damages arising from the fault of the latter,aod no more. Scheffer v. Railroad Co., 105 U. S. 249. This doubtless includes the damages arising in the course of reasonable and propel' efforts to extricate the injured vessel from the· position in which
WATKINDS V. SO(j1'}'HERN PAC. R. CO.
the fault ofthe other had left her. The Nellie, 2 Low. 494. The libelant's boat, after the accident, Was found to be leaking. She was not then quite loaded. Her loading was afterwards completed with a full cargo, as I understand, as though no injury had happened; and' she was thereupon taken across the river to form one of a tow which she had previously been intending to join on a trip to New York. She went down with the tow, and, when within 12 miles of the city,the ice lifted the upper part from the bottom, and the boat and cargo thereby became a total loss. The evidence shows that she could not be docked with her' cargo in her; and the cargo, it is said, could not be transferred so as to be of much, if any, value. The evidence on this last point is not satisfactory. The boat was 24 years old, evidently weak, and she started upon her trip without examination, and leaking badly. I do not think the captain's conduct in this. case CQmes fairly within the rule that charges upon the wrong-doer the reasonable efforts made to save an injured vessel. It is very improbable that the trip to New York was made with the view to save the vessel or cargo; for, if that had been the only object; the captain would not have increased the risk by taking more. aboard after the.accident. Just how much more ice put aboal'd)s .not stated; b\ltas the boat completed about 125 miles of her trip before foundering, after being fully loaded,. it is fair to assume that if she had taken· aboard, ,only a small amount less. she would completed her trip. The completion of the loading, the lack of exam,., ination and of any effort to stop .the leak, all lead to the sa.me conclusion. FroPlAhe moment the boat started' cODstfmt efforts at the pump were necessary. The boat was very old and weak, and plainly unseaworthy. A Mat of ordinary strength would not have separatell as this boat did. It was not a case where instant action was necessary to Btlve boat or cargo from destruction. The captain was not, I think, entitled, under such circumstances, to throw the risk Of losing the boat and carg;o during a trip of 140 miles, on the steamer, without ber, and without examination. I allow $400, the estimated damage to the boat by the injuries to berbottom. Having been lost in the tain's subsequent venture, there is nothing to be added for demurrage. Decree for $400, with interest from August 16, 1887, and costs.
(DiBtrict Oourt, D.Oregon. :May 15, 1889.)
Contributory neglig-ence is a defense which' necessarily impUesilegUgence on the part of the defendant, and,is. tl;J,erefol.'Q a p1eao£ con£ession.ndavoidance.