herein, that as the Corol1a had entirely lost her motive power, and was in a leaky condition, not in harbor of refuge, and could only reship, if at all, on transient boatEl, as a whole, ship and cargo were in peril, and extraordinary services and expenditures were necesEntry for ehe oommon safety of ship and cargo; and as these services were rendered, and these expenditures were made, the case is properly one of general average. That the port of refuge and the port of ,destination were the same maIres no material difference. Where it is possible to save the ship as well as the cargl?! it is doubtful if the master should be criticised for not separating them, even if he have an opportunity, If he does separate them under such circumstances, the ship does not thereby lose her claim for general a:verage. In the present case the evidence does not show that any reshipment ought to have been or could have been made without largely increased expenses. Let a decree be entered for the libelants as prayed for in the libel.
THE CIAMPA EMILIA.
et al. v.
(District Gourt, S. D. New York. May 29. 1889;)
Since, in a suit for towage. the defendant, who has a counterclaim for damages for negligent performance of the contract, in excess of the libelant's claim, cannot recover his full damages by answer, but only by Moss-tibet. and as he cannot split up his cross-demand. but must try it in the cross-suit. he is -entitled to have the libel and cross-libel heard together. if bronght in the same court. If brought in different courts. jud.c:ment on the libel for towage should be stayed until reasonable opportunity had for the trial of the larger counter-claim in the cross-action.
In Admiralty. Libel for towage. Hyl.and &- Zabriskie, for libelant. Wing, Shoudy &- Putnam, for claimants.
BROWN, J. The libelant sues for $250, the agreed price for towing the ship Ciampa Emilia from New York to Philadelphia, in November, 1888. On the trip the Ciampa was damaged in an amount much beyond the contract price, through the alleged negligence of the libelant's tug. The answer admits the agreement to pay $250; but it alleges a contract to tow safely, the non-performance and violation of that contract, the consequent damage, and the pendency of a suit in the Eastern district, brought by the claimants against the libelant's tug in rem, to recover damages much in excess of the price of the towage. The claimants in the suit last named having bonded the vessel and given security for the damages claimed in the Eastern district, now move for judgment here
upon the pleadings and on the above facts. In libels on contracts for towage or for transportation, damages may be recouped in the same action to the extent of the contract price; but, if the carrier has caused damage in excess of the contract price, the claimant can only recover the excess by an independent libel. In Nichols v. Trcmlett, 1 Spr. 367, it is said, moreover, that since he cannot split up his demand, and litigate the same question twice, if the owner "voluntarily submits his claim for damages to the court in the suit for freight to extinguish the libelant's claim, he cannot atterwards maintain a suit for the excess." Kennedy v. Dodge, 1 Ben. 311. In Bradstreet v. Heron, Abb. Adm. 209, BETTS, J., says, in regard to a negligent damage of the carrier, that the owner of the goods is "entitled to withhold the freight, either by way of recoupment of damage or upon the ground that the libelant cannot maintain an action on the contract without showing that its requisitions have been fully complied with on his own part." It is now the settled practice, however, upon delivery of all the articles, though damaged, to allow the freight upon compensation for the damage, either by way of recoupment or by way of cross-libel, according to the amount of damages. Whatever may have formerly been the practice in common-law actions, it is manifest, upon principles of natural justice, that an owner of property which has been damaged in a larger sum than the freight or towage price ought not to be required to pay moneys to the wrong-doer while the latter is owing him a larger sum for damages in the same transaction. Under the Code of Civil Procedure in this state, and in many others that allow a counterclaim to be set up in the answer, both demands are adjusted in a single suit. As the practice in the admiralty, however, requires independent libels, the court, which proceeds upon equitable principles, should secure the same result, so far as the proper regulation of the practice will permit, viz., by trying the two causes together, as it may do, where both suits are in the same court; or, if they are in different courts, by staying the entry or execution of a "decree in the one suit until there is reasonable opportunity for the other to be heard. 'J'he Tubal Cain, 9 Fed. Rep. 834. As the larger suit for damages is pending in the Eastern district, no decree should be entered here until the right of the present claimants to damages is adjudicated there. Both claims proceed from the same transaction. The present libelant is not entitled to be paid his towage, except upon making at the same time compensation for the damages inflicted. He is not equitably entitled to call for the claimants' money for freight, and turn the latter over to the bond or stipulation given in the other suit, in which by litigation he may postpone recovery for a considinvolve the claimant in an entire loss erable period, and at last through the failure of the security given. An order may be ta ken providing for the entry of a final decree for the amount of the towage, with interest and costs, upon the determination of the suit in the Eastern district; the amount thereof to be paid upon satisfaction on the part of the libelant of any decree therein recovered against him.
(District Court, D. New J(ff'sey.
PILOTS-WAGES-WEIGHT OF EVIDENCE.
May 25, 1889.)
Where the sale question arising upon It libel by It pilot for wages is as to when the rharterers informed the libelant that he was to look to one of the charterers individually for payment. and the two charterers directly contradict the libelant. there being no other testimony on that point. the witnesses being equally worthy of credit, the weight of evidence is against the libelant.
In Admiralty. Libel for wages. Anson B. &tewart, for libelant. Bedle, Muirheid & McGee, for respondent. W AI,ES, J. The libelant sues to recover a balance of wages alleged to be due to him for two months' services as a pilot on board the Ruth. The contest is whether he has a lien on the vessel, or must look for payment to the person who employed him. He says that he was emany ployed by Lamson, who acted as master, but that he did not shipping articles, and that he rendered the services sued for The defense is that he undertook the employment on a special contract, and on the personal credit of Lamson,-one of the charterers of the boat,-and without the knowledge of the owners. The testimony is made up of positive and contradi0ting assertions. The libelant admits that he knew before going on the boat the character of the business she was to be engaged in, but that he was ignorant of the precise terms of the agreement between Lamson and Leslie, who had jointly chartered her, until some time afterwards. Lamson and Leslie both swear that before the libelant engaged as pilot, he was made fully acquainted with everything concerning the business, and that he was to receive his pay from Lamson. They also say that he was incompetent, and of no use as a pilot, except that the presence of a licensed pilot on board was required by law. The boat was unsuccessful, and her charterers ran in debt. The question of fact is narrowed to the single one as to the time when the libelant was informed of the terms of the agreement between Lamson and Leslie, and that he was to look to Lamson for his wages; and on this point, the parties to the contract, including Leslie, being the only witnesses, and all being entitled to equal credit, the weight of the evidence is against the libelant, and his libel must therefore be dismissed.