THE HA VILAH.·
her master, and crew, to be aDPortioned ratably against the schooner, freight, and cargo. See The Hyderabad, 11 Fed. Rep. 749; The Joseph Griggs, 1 Ben. 81; The Anna, 6 Ben. 169. Of this amount one-third should go to the master and crew of the Ivanhoe and two-thirds to the owners. The libel is filed by the owners alone, and not in behalf of all interested. A petition may be filed in behalf of the master and crew, or the libel amended in behalf of all interested, and a decree thereupon taken for the full amount. The Adirondack, 2 Fed. Rep. 872. If neither is done within a reasonable time, the libelants may take a decree for their share only.
(District Court, S. D. New York.
A rehearing of a cause will not be granted after an assessment of damages, upon alleged new evidence that is equally controverted. and involves the reconsideration of all the previous evidence. The remedy is by appeal.
In Admiralty. Henry D. Arden, for libelants. H. D. Hotchkiss and R. D. Benedict, for claimants.
BROWN, J. The assessment of damages, under such circumstances as in the present case, is attended with much difficulty and perplexity. Assuming that the brig was liable on account of her negligence, as found at the hearing, I think that substantial justice is done by the award of damages, and that I am not warranted in .making any material change, except as respects $551.25, allowance for demurrage, which is doubtless an oversight. Payment of the full value of the vessel at Lhe time that she was sunk is the legal equivalent of a new vessel purchased to supply the place of the old, and interest thereon represents the value of the use. Demurrage in addition, therefore, is not chargeable. The Vemts, 17 Fed. Rep. 925; The Utopia, 16 Fed. Rep. 507. In other respects the report is confirmed. An urgent appeal is made for the rehearing of the cause on the merits, on the ground of newly-discovered evidence, derived from the raising of the vessel during the assessment of damages, by which it is claimed to be shown that the angle of collision, instead of being from three to four points, as found heretofore by the court, was eight points, as the libelants had contended; and because such a collision angle would require the reconstruction of the whole theory of the collision, and charge the schooner with fault, and perhaps wholly relieve the Havilah.Such evidence as the raising of the schooner affords is, no doubt, new. and, if it were certain that the evidence derived from an inspection of the vessel proved an angle of collis.ion of eight .points, I should not hesitate to admit the testimony, and to the evidence with reference to that
fact, as the angle of collision wasn- very importllnt factor in mination of the case. - But it is clear from the opposing affidavits that, if the case were opened, the angle :of collision would be the subject of as much controversy as any part of the case on the original hearing. Where very important facts are discovered after trial, and there is either no dispute about them, or substantially little dispute, it is better that this court, as 1 have held,: should recol1sider the case, the same as where there has been-an important misapprehension or mistake as to the testimonyor facts -proved; but not so, I think, where the opening of the cause would renew the same controversy upon a new: field of evidence, evidently with contradictory witnesses, all of which must be weighed in connection with the evidence previously considered. As the law supplies the opportunity for rehearing on new evidence by appeal, I think it better that it should be heard· there, where it can be determined free from the preoccupation of mind that naturally follows a judgment once formed and expressed, as respects the mass of the old evidence, which must, nevertheless, be !.'ecous:dered with reference to the new.
et al. v.
(District Co'i.trt, S. D:.Ne-w York.
June 26, 1889.)
SHIPPING--GENERAL AVERAGE-NEGLIGENT STRANDING.
Voluntary' stranding. made necessary by negligence on the part of the ship, does not entitle the ship-owners to general average contribution from the cargo saved.
Wm. A. Walker, for libelants. Evarts, Choate &: Beaman andT. Cleveland, for respondents.
BROWN, J. The libelants claim a general average contribution for the sacrifice of the bark Oneco, which was voluntarily stranded in April, 1885, at Sagua la Grande, Ouba, for the preservation of the respondents' cargo. The bark of 726 tons was chartered to the respondents to load a cargo of sugar, to be delivered in some port of the United States north of Hatteras. Fully loaded, she drew about 18 feet. On account of the shoal water in the harbor, the port regulations prohibited loading beyond 16 feet 3 inches draft. When loaded to that draft the Oneco proceeded, in charge ofagovernment pilot, about 9 miles to the outer anchorage. She came to anchor on the 10th of April, as the log of that date states, "in 20 ft. of water, 35 fms. of ohain, the cayo bearing S. E. by E. and the light W. by N." On the three following days her loading was completed.On the morning of the 14th, a-strong wind and sea getting up, at 7 A. M.- 'another anchor was let go. There iano evidence that she dragged herarichors, but in the boisterous weather she struck heavily upon the bottom, breaking the rudder and damaging the keel. The
: SNOW . .,. PERKINS.
pumps 'Were.ttlanned and signals of.p.istress were keptfiying, but nQhelp was obtained,and at the end .oftheday 36 inches of water was in the well. On the morning ofWednesdaYuthe 15tll, the captain returned. to Sagua:, and came back on Thursday, the 16th, with three surveyors and a lighter. The surveyors recommended beaching the vessel for the preservation of the cargo, so far as possible, which was immediately done. The cargo was thereafter unladen, the vessel stripped, and the wreck sold. The cargo was unloaded under a salvage contract made at Sagua by the master with one Garcia, bearing date the 15th, allowing the salvQr 50 per cent. This contract recites that the Oneco was then stranded, and believed to be a total loss. This contract is also certified by the United States commercial agent under that date. During the master's absence on the 15th assistance in pumping had been obtained from the gun-boat Telegrama; but the water bad gained on the pumps, and on the master's return the bark had 8! feet of water in her hold. The surveyors were sent by request of the resident American commercial agent upon the master's application for a survey, two of whom have testified in the cause. Upon the considerable evidence on this branch of the case there seem to me to be grave doubts whether the beaching of the vessel was for the best interests of the ship and cargo, or was reasonably justified by the circumstances of the situation. The salvage contract with Garcia having been made the day before the survey, the surve)' can be regarded only as called to justify a foregone conclusion. But no further comment will be made on this part of the case, as I am satisfied that upon other grounds a general average charge cannot be sustained, for the reason that the pounding on the bottom, and conseljuent leaking of the ship, which was the occasion of the voluntary stranding, arose through negligence on the part of the ship. It is one of the commonly accepted rules in the law of general average that the party whose negligence has made the sacrifice necessary rannot claim contribution. Lown. Gen. Av. c, 1, § 4; Gourl. Gen. Av. 15, and cases there cited; The Ettrick, L .. R. 6 Probe Div. 127, 135; Robinson v. Price, L. .R. 2 Q. B. Div. 91; The Ontario, 37 Fed. Rep. 220, 222, and cases there cited; Ralli v. Troop, Id. 888, 890. Such is the express provision, also, of several of the continental Codes. Germany, § 704; Italy,§ 643; The Netherlands, 700; Spain, § 820; Belgium, § 103. In France the law is the same, without any express provision of the Code. 5 Valroger, Droit Mar. §§ 2001, 2087. The charter in the present case does not adopt the York-Antwerp rules. Taking all the circumstances into consideration, I cannot find that the vessel was anchored in deep water, as the master testifies, but must hold that she was improperly and negligently anchored in shoal water, (20 feet, as the log states,) and negligently allowed to remain there after her loading was completed until she pounded on the bottom in the rough I'ea that arose on the 14th. The master testifies, indeed, that he repeatedly sounded about the ship, both before and after the and thatthere was from 16 to. 20 fathoms of water all around the vtllilbd, !lui t.hat the entry of "20 ft." iu the log is a mistake
for 20fathoms. But the sameentty in the log merttions both feet and fathoms; The entry reads: "Came to anchor in 20 ft. of water, 35 fms. chain, at 4 P. M." It is difficult to believe that the two ,forms of viation would have been used if fathoms had been meant in both cases. But there are many circumstances that sustain the log, and I have sought in vain for anything to confirm the master's testimony. The protest made soon after and signed by the master, first and second mates, and two seamen, repeats the same statement of the log, the words "feet" and "fathoms" being written out in full. No other witness from the ship, and neither of the surveyors, two of whom were sworn, were examined as to the depth of water where the ship lay. Capt. Keen, one of the surveyors, speaks of the place as a "shoal" which he had found out, and he anchored his vessel a reasonable distance off to keep clear of it. Capt. Charleson speaks of the Oneco as aground. The master, in his application on the 15th to the United States commercial agent for a survey, states that tbe Oneco had "struck upon a rock or reef." In his testimony he intimates that, though the ship lay in 16 fathoms of water, the rudder and keel struck upon some "lump." But he also testifies that he sounded all about the stern and found no such lump, and he made no furtber effort to find what it was on which the ship pounded. While it is not absolutely impossible that sllch a peak arose from a depth of 100 feet to within 20 feet of the surface, it seems scarcely credible that so unusual and extraordinary a thing, if it existed, should excite no interest, remark, or investigation on the part of either the master himself or the other shipmasters, the surveyors, and the salvor and lightermen, who came out to the ship on the 16th. Had there been so dangerous a rock in that vicinity, in deep water, where vessels were accustomed to lie and complete their loading, it seems incredible that no inquiry or investigation should have been made concerning' it. The evidence even of the master shows no such interest or investigation, and the testimony of the other witnesses gives no intimation of anything unusual, but treats it as any ordinary shoal on which the vessel had grounded. The master, when asked to explain how the ship could thump on the bottom in 100 feet of water, could give no explanation except the suggestion of a "lump" beneath the keel, which he made no special effort to find, and which is not proved to have existed. In the face of the entry in the log, and the language of the protest, that the ship anchored on the 10th in 20 feet Of water, and of the other evidence, intimating nothing unusual, but speaking of the vicinity as a sboal, and the vessel as stranding OIithebottom; I must find the master's testimony insufficient to support his theory. If it was permissible to anchor at all in so shallow water as 20 feet, it was not permissible to remain there when the wind shifted or freshened; and I must hold it negiligence in the ship, if not to have anchored in that depth at all, at least not to have taken care that the ship was hauled out into deeper water before any such change in the wind and sea arose as made her berth palpably dangm:ous,and produced the'injuries on account of which she was stranded. This negligence being the efficient cause of the sacrifice, the libel must be dismissed.
MERCANTILE TRUST CO. v. KANAWHA & O. Ry. CO. et al.
(Circuit Court, D. West Virginia. July 13,1889.;
A suit was brought in the United States circuit court for Ohio for the fore· closure of a mortgage on defendant's railroad, which extends through Ohio and West Virginia. After the appointment of a receiver in that suit, complainant filed a bill termed an "ancillary bill," in the United States circuit court for West Virginia. reciting the proceedings in the first suit. and exhibiting a copy of the bill therein, and praying the court to take" ancillary jurisdiction" and furnish such relief as might be necessary to accomplish the purposes of the first suit, "and for such other and further relief as the nature of the case may require," etc. lIeld, that the bill should be dismissed. If the aid of the court in West Virginia is desired in enforcing the mortgage, it must be invoked by an independent suit.
EQUITY-PI,EADDrG-BILL TO FORECLOSE.
The bill cannot be regarded as an original bill seeking foreclosure, because it contains no sufficient description of the mortgaged premises, nor averment of facts essential to show complainant's right to foreclose, and such defects cannot be supplied merely by reference to the copy filed of the bill in the other suit.
In Equity. On petition for ancillary proceedings. Alexander' & Green, Si'mpson, Thacker & Barnv,m, and John E. Kenna, for complainant. E. B. Knight, for defendant railroad company. J. B. Jackson, for defendant Davis. Before HARLAN, Justice, and JACKSO:O<, J. HARLAN, Justice. The bill filed in this court, May 4, 1889, by the Mercantile Trust Company, and which was spoken of in argument as an "ancillary bill," shows that that corporation has heretofore filed in the circuit court of the United States for the Southern district of Ohio, Eastern division, "a bill of complaint against the Kanawha & Ohio Railway Company, a corporation created and existing under and by virtue of the laws of the states of Ohio and 'Vest Virginia, and having its principal offices at Colum bus, in said state of Ohio, and at Charleston, in said state of West Virginia, seeking for the foreclosure of a certain indenture of mortgage or deed of trust, dated the 1st day of 1886;" and that "a portion of the line of railway and property owned by the said Kanawha & Ohio Railway, and subject to the lien of said mortgage, is situated within the district of West Virginia, and within the jurisdiction of this court." The remaining parts of the bill are in these words: "And your orator respectfully refers' to the said bill of complaint in the circuit court of' the United States for the Southern district of Ohio for a more particular statement of the contents thereof, and for the terms and conditions of said mortgage; and )'our orator files herewith a true copy of said bill of complaint, lj,nd prays that your honors will take the same as a part of this ancillary bill, your orator making all the averments. and showing unto your honors the same facts which are set forth in said bill filed as aforesaid. .. And your orator further shows that all the statements contained in said v.39F.no.6-22