FEDERAL,aE,pORTER., ,vol.
59.
a{ the !t;loat was one, an(l a favorable one ,not at while so heading, in the boat .was movingaltttle, aIJd the b.ow possibly Some motion in the water is to be ex· pectell, aJ;l9W: The floatw.as! takenfrpm the usual slip of and.the pilot of the Havana knew the usages of those' boats in making up their tows at that place. The real fawt was the fault of tlle Havana in the undertaking to pass atsuc;h a. speed, amid more or less shifting waters,in the narrow space ,between the Alaska and the float. A state statute prohibits a steaIller from passing another steamer nearer than 20 yards. The Alaska was estimated by the master to be 40 or 50 feet on the starboard side,. and tlJe available space on the port side of the Havana was evidently very much less. ,There was abundant room for the Havana had she chosen to keep astern of the Alaska until she :float, or had she chosen to go to starboard of the had. passed Alaska in mid river. The unnecessary attempt to go between the Alaska and thetloat, which was practically stationary, though probably not entirely so, was at the Havana's risk. The Senator D. O. Ohase, 46 Fed. 874; The City of Chester, 24 Fed. 91. The tug and float were not under way. The Dorothy was not required to make any response to ,the Havana's aignals, which were given to her only very shortly before collision; nor was there anything that the Dorothy could have done, in the short interval after the signals were given, that would have been of any use in avoiding collision. The libel mUl!1t therefore be with costs.
anll'th,e therefpr.: u
SCOTT T. OORNELL STEAMBOAT CO. (District Court, S.D. New York. January 22, 1894.) LIABILITY COLLISION-TuGS AND Tows - CANAL BOAT FILLED WITH WATER 01' TUGS-DUTY TO RAISE SUNKEN BOAT.
One of a large fiotilla of canal boats, while towing, began to take in water, until her decks were almost submerged. Although her condition was known to the tugs in .charge of the tow, the towage continued, at the request of the master of the canal boat, until she broke in two, thereby injuring libelant's canal bdat, F., which was astern of the broken bOat. It being found that the F. was leaklng, she was beached, and afterwards removed by respondent to fiats, where she remained until sold by her owner for a nominal sum.. Held, that it was Improper to continue towing, in a fiotilla, a boat filled with water, after her condition was known, and that such towing was at the risk of the tug owner, and not of the other boats of the tow; that, after the canal boat was temporarily beached, her owner was bound to take charge of her within a reasonable time, and was liable for any damage which may have accrued after the lapse of such reasonable time: that the tug .boat owner was liable for some of the damage to the canal boat's cargo; and that, Ulliess the value of the canal boat, as an old boat, was small, libelant was negligent in making no attempt to ralse or repa!r her.
SOOTT fl. CORNELL STEAMBOAT CO.
639
In Admiralty. Libel for· collision. .Decree for libelant. Goodrich, Deady & Goodrich, for libelant. Benedict & Benedict, for respondents. BROWN, District Judge. The above libel was filed to recovel' damages caused by an alleged collision about 8 or 9 o'clock A. M. on Sunday, the 18th of June, 1893, between the libelant's canal boat Favorite and the canal boat Petrie, both loaded with ice, and both a part of a flotilla of boats in tow of the respondents' tugs, coming down the Hudson river. Both boats were outside boatA, on the port side of the third and fourth tiers, the Petrie being about 12 feet ahead of the Favorite. These boats had been taken into the tow on Saturday, the day, previous. During the following night the Petrie, which was an old boat, had gradually filled with water, so that by 6 o'clock. in the morning of Sunday, her decks were. level with the water. Her condition at that hour, or previous, was known to the pilots in charge of the respondents' tugs. The Petrie's captain, however, desired that she should continue in the tow until it arrived at Rondout, about 15 miles below the place where the tow was at 6 A. M., and be run upon the fiats at Rondout. The towing continued until between 8 and 9 o'clock; when only about six miles above Rondout, the Petrie broke in two. 'fhe forward part of her deck came off (Cornwall v. The New York, 38 Fed. 710, affirmed), probably from the lift of the ice beneath, combined with the weakness of the boat, and the strain of the hawser upon the bitts attached to the deck, so that the lower part of the Petrie drifted back, and her stern struck the Favorite's bow, the Petrie's bow at the same time plunging down. The Favorite and the Petrie thereupon broke away from the rest of the tow, and drifted astern. The Favorite was soon picked up by one of the helper tugs and brought again to the tow; but before she was fully made fast to it, she was found to be rapidly filling, having then some three feet of water in her, and she was consequently immediately detached from the tow and taken to the bulkhead at the Ulster ice dock landing. She was so deep in the water that she touched bottom before she got quite alongside the bulkhead; but she was made fast thereto by lines, and by 1 o'clock of that day was filled with water. Her captain remained with her until Tuesday, when he went to Rondont to request the respondents to put her in a more comfortable position, as she was affected at the ice dock by the swell of passing steamboats, and on Tuesday morning had pulled down some spiles of the bulkhead to which her bow was fastened. She was thereupon removed by the respondents, either on Tuesday or Wednesday, first to the breakwater near Rondout, and afterwards to the flats, a mile or two below, at Port Ewen, wherp. she remained several months, and in September was sold by the libelant for $25. About that time a hole some six inches in diameter was found on the bilge of her starboard bow, and a slanting spile fast in the mud was near the position of the hole.
'640
FEDERAL REPORTER,
vol. 59.
Upon all:the:evidence in the ,case, lconie'to thefonoWirig'coriclus i o n s : , .' '.",. . '. . ... ' 1. That the Favorite filled P"Cousequence of the blow she received from the whether the hole on the starmade by the. petrie., or bJ board side Of the bo;W:Was, or any possiple v,nevenness of the bottom at the lee dock, or by the spile at Port Ewen. . .' ' 2. That the FaVorite, though audnot in first-class condition, was reasonably fit for the voyage, and ifil, therefore, not with water. : to be held in fault for 3. That it was improper, and hazardous to the other boats in the tow. to' continue. to toW' snchaboat as the Petrie was known' to be,loaded with ice, and fllled with water, at least 15 miles after her condition Was known at 6 o'clock on Sunday morning; and that the continuedfuwingof the Petrie, instead of detacl1ing her and leaving her at one of several places Where she might have be,en left, was at the risk of the respondents, and not at the risk of the libelant's boat. " 4. Thatthea&cident to the Favorite was such as to break up her voyage, and render the' delivery of tpe boat and cargo of ice at 1'iew York, where she was bound, impracticable.· ' , 5. That the ice dock was a suitable place for the temporary landingof the Favorite, until her owner could take charge of her; that the respondents are answerable for any additional damage which she l1la:y have sustained while lying there' until the lapse of a reasonable time for the owner to take charge of her; and that the owner for any apditional damage after the lapse of such reasonable time. " "', , That some loss on the cargo ot ice: on board the Favorite was a natural result of thecoUision, for which the respondellts are lia1?le; whether partial or total, may re deterrriined on the reference. The New York, 40 Fed. 900.. " 7. The evidence before me indicates that the Favorite could have not justify been raised and repaired at a moderate cost, and the conclusion that she had sustained damages equivalent to it totdl loss at the time when she was landed at the iee-honse dock, or , l\?itlJin a time thereafter for her removal by the libelant, , unless her value, as an old boat, was small, and that, if valuable, the libelant was negligent in practically abandoning the boat and cargo and making no attempt to raise or repaie her. Towboat Co. v, Pettie, 1 U. S. App. 62, 1 C. C. A. 314, and 49 Fed. 464; The Ravilah, 1 U.S. App. 138, 1 C. C. A. 519, and 50 Fed. 333; Railroad Co. v. Washburn, 50 Fed. 336. Decree for libelant, with reference to compute the damages. on above principles.
as
KNAPP t1. KNAPP.
641
KNAPP. v. KNAPP. (DIstrict Court, D. Alaska. June 5, 1893.)
FEDERAL CoURTS-JURISDICTION-ACTION AT LAW ON DECREE 011' DIVORCE.
An action at law will lie in a federal court, upon a decree of divorce rendered by a state court of equity, to recover all alimony accrued at the time of fIllng the complaint.
At Law. Action by Gertrude Knapp against George E. Knapp on a decree of the superior court of the state of Washington, for Skagit county. Heard on demurrer to complaint. Overruled. C. S. Johnson, for plaintiff. Lyman E. Knapp, for defendant. TRUITT, District Judge. This is an action at law for debt, and is based on a decree of said superior court, which is set out in haec verba in the complaint, as follows: "In the Superior Court of the State of Washington for the County of Slregtt. "George E. Knapp, Plaintiff, vs. Gertrude Knapp, Defendant. (No. 1,538.) "Decree. "On this 1st day of February, 1893, this cause having been tried upon the issues raised by the pleadings, and after such trial the court having made and filed its findings of facts and conclusions of law, Whereby it appears: First. That both parties to this cause are entitled to a decree of divorce. Second. That the defendant is entitled to the custody of the child, Matilda, until it should arrive at the age of five (5) years, and thereafter until the further order of the court. Third. That plaintiff assign to the defendant a certain mortgage on land in Lincoln county, 'Vash., and coupon note collateral thereto, guarantied by the Vermont Loan & Trust Company, of the -face value of five hundred dollars, and that the defendant also have decree for an additional sum of three hundred ($300) dollars, and that the plaIntiff pay the sum of ten ($10) dollars per month for the support of said child: Now, therefoce, It Is hereby adjudged and decreed that a divorce from the bonds of matrimony be, and the same hereby is, granted to both parties; and that the marriage contract existing between them be, and the same hereby is, dissolved, as to ooth parties. (2) That the defendant have the care and custody of the child, Matilda, until it shaJI arrive at the age of five (5) years, and thereafter until the further order of the court. (3) It is further decreed that the plaintiff assign to the defendant the coupon note, and collateral mortgage thereto on lands in Lincoln county, Wash., and guarantied by the Vermont Loan & Trust Company, of the face value of five hundred dollal'S. (4) It Is further decreed that the defendant have and recover from the plaintiff an additional sum of three hundred ($300) dollars, and that defendant have execution therefor. (5) It is further decreed that the plaintiff pay the defendant, in monthly installments, and payable on the first of each and every month, the sum of ten ($10.00) dollal'S, for the support and maIntenance of said child, commencing on the 1st day of March next, and that defendant have execution therefor. (6) It Is further decreed that each party pay his or her own costs of this suit. "Henry McBride, Judge."
The complaint, after setting out this decree, then states that the plaintiff has duly complied with the directions thereof as to assigning to defendant the note and mortgage therein mentioned, but has wholly failed and neglected to pay said $300, or any part thereof, to plaintiff, and has failed to pay, or make provision for payment of, said sum of $10 per month, as provided in said decree; that said v.59F.no.6-41