takblg an ice cargo, andtllat ullSilfe'ty of' berth led diI:eetlyto all the subseqlu!nt loss. I overrule all the respondent's exceptions,';' , , 'The libelants excepted to the assessor's ruling that the damages are to be ascettailied by valuiD.g the vessel before receiving injury and deducting her value in her damaged condition. I think this exception must be sustained, The rule is restitution,-the cost of repairs. The Catherine v. Dickinson, 17 How. 174. FortUliately the assesSor has reported the damages made up according to that rule, and it is not necessary to recommit the case. The other' exception of libelants is overruled. The total, according to Schedule B of the report here approved, is $11,673.55, one half 9f which is $5,836.77, and for the proportion and amount, with interest from tlIe date of filing the libel, a decree is ordered. Question is made respecting costs. In admiralty, costs are under the COlltrol of the court, and do not necessarily follow the rule in cases at law or suits in equity. They are denied in whole or in part to the prevailing party, and sometimes are even allowed to the losing party, as, on: a view of all tlU' particulars, of a case, seems to be proper. ,In this case, the reasoning of Lowell, J., in The Mary Patten, 2 Low. 196, 199, is cogent: "If the loss is all suffered by one vessel, and her owner brings his libel. he will recover half his damages; and there is no reason why he should not, in general, recover his full costs. It is the ordinary case of a prevailing party recovering less than he asks for, and if there has been no tender or offer of amends, and no equity poouliar to the individual case, it is according to the sound and reasonable law of all courts that he should recover costs." '1'he criticism of this reasoning, found in The Pennsylvania, 15 Fed. Rep. 814, does not, in my view, impair its force; nor can I regard the case of The America, 92 U. S. 432, as a binding authority on this point. The question in that case received no discussion, and the CitutiOllS at the conclusion of the opinion are of cases affirming, the rule of: apportionment of damages when· there is mutual fault. In no one of those cases is any reference maue to this subject of costs. Decree, $5,836.77, and interest fl'om date of filing libel, and costs.
Charles P. Stetson, for Union Ice Co. Charles}'. Russell, Jr., and Clarence Hale, for appellants. Before COLT, Circuit Judge, and NELSOK and CARPENTER, District J ullges. PER CURIA}f. We are satisfied with the findings of fact and the conGlusions of law reached by the lear-ned district judge in thL'l case, as expressed in his opinion, and the judgment of the district court is. therefore affirmed.
'1'HE RICHARD S. GARRETT! .McCALDI:\T et at v. 'rITE RICHAHD S. GARRETT. (District Court, S. D. New York. April 1, 1893.)
SALVAGE-BOSSIBIL!'l'Y OF DAMAGE-PROBABLE
Loss 'TO BE CONSIDEHED. \Vhel'e a lug in New Yorkhal'bor was, in consequence of a collision, abandoned ltyhel' erew, and left with her engines still, baeking, anu was immeby another tug, her steaUl shut off, and herself taken to a place of safety, the service lasting some three hours, and no other vessel bdng immediately at hand to render it, and the evidence left it doubtful whether, if assistance nad not been so rendered, she would have sunk, at a damage of $1,500 to $2,000, or backed IIshore at half that damage,
'Reported by E. G. Benedict, Esq., of the New York bar.
THE RICHARD S. GARRETT.
thp court, while inclining to think that she would not have sunk,
yd did not ,,-holly that contingency in fixing the award, and, 1]f'ld that $3;;0 should be allowed the salving tug, ::;5() to her master, who slmt off the steam of the disabled vessf'l, and $75 to another tug, which rendered assistance in. pumping.
In Admiralty. Libel by James McCaldin and others against the steam tug Richard S. Garrett to recover salvage. Decree for libelants. Carpenter & Mosher, fOf'libelants. Stewart & Macklin, for BROWN, District Judge.. This libel was filed to recover salvage compensation for services ill picking up the (illiTett within a few minutes after she had 'been abandoned by her crew in a supposed sinking condition, following a collision about 1 P. M. on the 29th of April, 1892, in front of the South Ferry slip, from 200 to 300 feet off the shore. Owing to a burst in the steam pipe caused by the collision, the engineer had left her immediately with her engines still backing. The McCaldin came up alongside a few minutes afterwards, and after two or three attempts succeeded in uWldng fast; and then her captain, at some personal risk, succeeded in shutting off her steam from the engines. She was then taken to the shoal water little below Ft. 'William by Governor's island, and after being pumped out with the aid of the. Garfield, another tug belonging to the libelants, she was towed to Jersey City. The whole service was about three hours. The amount to be allowed for a salvage service must be in proportion, among other thinf);s, to the probnble los8, in case the service had not been rendered. That question, aside from the wide differences in the estimated value of the Garrett, presents some doubt in the present case. From the evidence it appears that the Garrett would undoubtedly, if she had not been aided by the MeCaldin, have either sunk, or backed upon the rocks at Governor's island. If she had sunk, the damages would probably have been at least from $1,500 to $2,000. Had she not sunk, but only run upon the rocks, the damages would probably have been not half so much. There does not appear to have been any other tug except the libelants' boats that could have rendered her efficient service in time to prevent one or the other of those damages. When she was abandoned it was supposed she would sink at once; and although upon the whole evidence I am inclined to think the probabilities are that she would not have sunk, yet as this is not certain, that contingency should not be wholly excluded in fixing a compensation. A fair award in the present case will be, I think, (1) $50 to Capt. Barker of the McCaldin for his personal exposure; (2) $350 to the McCaldin; (3) $75 to the Garfield. Of the two latter items two thirds will go to the owners, and the remaining one third to be divided among the mast officers and crew of each boat respectively, r, .according to their wages. Decree accordingly, with costs.
MILLARD v. THE BARNEGAT AND TH,E MONTANA, (two cases.)l (mstrict Court, S. D. New York. April 3, 1893.)
SALv AGE-FIRE--BuRNING LIGHTER-PUMPING-FmE DEPARTMENT.
A tug which first began to play water upon a cotton lighter, on fire in a slip in the harbor of New York, and which assisted the city fire boats in getting to the fire and which played water upon a side of the cotton could not reach, and which continued her which the fire service for 12 hours, was hdd entitled to an award of' $1,000 on a salvage of $28,000, though the major part of the work of extinguishing the fire was performed by the city fire boats and the land fire department, which arrived at the fire shortly after the tug began her work.
In Admiralty. Libel by Edwin E. Millard against the tugs Barnegat and :Montana and their cargoes. Decrees for libelant. Wilcox, Adams & Green, for libelant. Robinson, Biddle & Ward, for claimants. BROWN, District Judge. Considering that of the $30,000, the value of the Barnegat and her cargo at the time when the fire on her broke out, $28,000 was saved, the salvage services were unusually successful for. a cotton fire. The major part of the service, however, was performed by the city fire boats Ffavemeyer, and the New York, and by the land fire department; although the Adelaide probably had her two streams pla.ying upon the fire sonw two or three minutes before the hose of the land denartment wa::; played. It was necessary also that the Barnegat be reo moved, and that other boats which obstructed the approach of the Havemeyershould be pulled aside, to permit her to come in near where the Barnegat lay. The services of the Adelaide were im· portant, both from her getting into action first, and because she was able to play upon the side of the cotton which the fire department on shore could not reach; also for her prompt assist:mce in aiding the Havemeyer to come in as soon as possible. These were, doubtless, the most importaut parts of her special service. After the barge was pqlled out into the stream by the Havemeyer, there was in reality a sufficient force without the Adelaide's help. '('he Adelaide, nevertheless, continued her service along with the very much more powerful fire boats until the arrival at the Erie basin, when she was put in charge by the fire boats, which then left; and the Adelaide remained until about 11 o'clock the following day, making a continual service of nearly 12 hours in all. The arrival, however, of ,such abundant means of relief, within 10 or 15 minutes at most after the Adelaide began her work, prevents any very large allowance to the Adelaide. She did not incur any material danger, nor was the service one of any special risk or difficulty to those engalTed in it. But the of prompt assist'Reported by E. G. Benedict, Esq" of the New York bar.