Brist&I,En*land, her departure; She violated the laW, 1!he rules and regulation provided for by it. It follows that the decree of the district court for the district of Maryland.·musf;,berev.ersed,.and the causert!manded to said court for such as may be prbver; anditis.so ordered.
THE EMP)DROR. THEHOWARDOARROLL. KNIOKERBOCKtllR STEAM TOWAGE 00. v. THE EMPEROR and THE HOWARD OARROLL. (District
June 18, 1894.)
A barge having· run. aground while in tow of two tugs, her owner both tugS to recover the damage. The defense brought this was that high lower t1J,an usual, and that t1J,e draught of the when she in fact drew barge had been represented as being but 20 more. The evidence did not satisfactorily show any misrepresentation as to the draught of the barge, and it did appear that the barge grounded forward, where. her' draught was not ever 19 feet 6 inches. The chart showed sufflc1ent channel way for the barge, even with an abatement of a foot or two In the USU!!.! height of the flood tide. Held, that the tugs did not take the best water, and that this was the true cause of the grounding, .and rendered the tugs liable. Where two independent tugs were employed to tow· a barge, and during the towing the barge was run aground, Mld, that both tugs were Hable, although it appeared that the pilot of one was taking the direction of the navigation In the shallow waters when the barge struck.
2. Sum-Two INDEPENDIllNTTuGs-ONE DIRECTING NAVIIUTION -
In Admiralty. ' This was a libel by the Knickerbocker Steam Towage Company, owners of the barge Andrew Jackson, against the steam tugs Emperor and Howard Carroll, for grounding the barge while in tow of the tugs. Wing, Shoudy & Putnam, for libelant. Samuel Park, for the Emperor. Hyland & Zabriskie, for the Howard CarrolL District, Judge. In the attempt of the tugs Emperor and Carroll to land the barge Andrew Jackson at Fourteenth street, East river, at about high tide, the barge was run aground twice, nearly abreast of Seventeenth street, while hea:ding down; and, afterwards, when allowed to drop up river with the flood tide, she again struck the bottom off Twenty-Fifth street. The defense on the part of the tugs is, that high water on that day was much below the usu!ll mark, on account of previous n(l)rthwest winds, and that the draught of the barge had been represented as being only 20 feet. The actual draught is proved to have been 19 feet 6 inches forward and 20 feet 10· inches aft.
· THE EM,PEROR.
I do not think that the defense is sufficiently made out. The evidence shows that the libelant's agent, in giving the order for the tugs to :Mr. Eldridge, said in answer to an inquiry by telephone as to the draught: "Oh, I don't lrnow,-about 20 feet;" no other representation as to the draught was made by the libelant. Eldridge. p'l"epared a brief card, such as is used in towing orders, for the purpose of finding tugs to fill the order, and his employe states that the card had on it the statement of "20 feet," as the draught- The masters of the tugs say that the same statement was to them. The card was given to the captain of the Emperor, .who undertook the direction of the navigation, as the captain of the Oarroll had not before undertaken to land any deep draught barges at Fourteenth street. The card, however, was not preserved, and the witnesses as to its contents testified in their own exculpation. In the absence of the card itself, I am not at all satisfied that the on the card was not "about 20 feet," instead of "20 feet." To establish so slight a difference, the card should be pro· duced, or the secondary evidence be free from suspicious circumstances. Here, that is not the case. :Mr. Eldridge, who wrote the card, has no recollection of writing the draught, or what, if anything, was stated about it. The water was known to be shallow. Mr. Eldridge would not be likely to misstate the representations made to him. The captain of the Emperor, who had possession of the card, testifies that when the barge struck the third time, he inquired of a person on board the barge if the draught was not ,over 20 feet, thinking that it must be greater than he understood it to be; and that he was told in reply that the draught was over "21 feet." Not only is this reply denied, but it is highly improbable; and had the card stated "20 feet" only, it seems to me very improbable also that the card would not have been retained by the captain of the Emperor for his own defense. The failure to preserve and produce the card is but one step short of the voluntary destruction of evidence. The captain of the Oarroll, moreover, says that immediately after the barge struck first, he inquired the draught of the man on the barge, and was told it was over 21 feet; but that he said nothing about this to the captain of the Emperor, who had charge of the navigation. It seems to me extremely improbable that he would not have stated this to the Emperor's pilot immediately, if the previous statement of the draught had been "20 feet," rather than "about 20 feet." In the absence of the card, therefore, I do not place any reliance on the evidence of "20 feet" as an exact statement of the draught represented to the tugs, rather than "about 20 feet," as stated to l\fr. Eldridge. The average draught was in fact only 20 feet 2 inches. The load-line figures forward and aft indicated exactly the draught of the barge at each end; and if the tugs did not notice and knllW the draught, it was by their own negligence. It is probable from the testimony that the high tide was somewhat lower than usual that day; but without more definite evidence than that presented, no precise difference can be deemed
plffi'E'd. No: specilUobservationwas made,· a:iltlthe!teti'denee,:on tbispdint is of the loosest and least persuasivechata'cfer the fact was, the owners and masters of tnetugswere aWkl'e'ofit at the time, and evidently had no doubt that a barge of. 'at least 20 feet draught could be ·landed without danger. Yet the·evidence shows that the barge was run aground forwatd, though her draft forward was not over 19 feet 6 inches, and a.midships she could only have drawn 20 feet 2 inches. The chart in evidence ,shows sufficient channel way for the barge as she was, even with :pi abatementofa foot or two in the usual height of the 1Iood tide; 'and the fact that she struck twice forward with only 19i feet dralight forme that the pilots did not take the best water, and that this was the true and only cause of the grounding. As between the Emperor and the Carroll, although the navigation in the vicinity of Seventeenth street was directed by the master of the Emperor, I do not think that the relation of the Carroll in the matter ,was that of a mere helper and servant of the Emperor. Mr. Pastor, the employe of Mr. Eldridge, says that he engaged the Carroll as one of the tugs employed, two being required. The Carroll was, in fact, first on the ground, and she first commenced the towage in the absence of the Emperor.' The Carroll's bill for the towage, as was stated in argument,' andnot denied, was rendered to the libelant, and not' to the Emperor. It was natural,and perhaps even necessary, with two tngs, that the pilot Qfone should, take the direction in shallow waters; ,/tnB I do not think that the legal relation or responsibility of tM' 'Carroll to the libelant was changed by the fact that the Carroll relied upon the superior. familiarity of the Emperor's 'pilot with channel way near. street, and submitted the directiOn of the navigation ,in that region to him. It was a matter of and part of the arrangement, between the'tugs themselves,' not designed to change ,any of the legal relations or responsibilities of either; is, therefore,entitled to a decree against each tug for one-half the damage. ,
CHICAGO, M. & ST. P. BY. CO. fl. WABASH, ST.
&: P. RY. CO.
CHICAGO, M;& ST. P. RY; CO.v. WABASH, ST. L; & P. RY. 00. Court of Appeals, Eighth Circuit. No. 289. L
CONTRACTS-PuBLIC POLICy-POOLING RAILROAD BUSINESS.
May 7, 1894.)
An agreement between railroad companies, by the terms of which all their roads are to be operated, as to through traffic, as if "operated by one corporation which owned all of them," and which provides for an actual division· of such traffic, and, where this is not done, for a division of the gross earnings thereof, the obvious purpose being to suppress or limit competition, and to establish rates without regard to their reasonableness, is contrary to public policy, and void. One party to such illegal agreement, claiming to have performed its part thereof, cannot maintain a suit to enforce division of earnings by another party thereto, the traffic not having been divided. Brooks v. Martin, 2 Wall. 70, distinguished. Central Trust Co. v. Ohio Cent. R. Co., 23 Fed. 306, disapproved.
SAME-ENFORCEMENT OF CONTRACT-PERFORMANCE ON ONE SIDE.
Appeal from the Oircuit Oourt of the United States for the East· ern District of Missouri. This was a suit by the Oentral Trost Oompany of New York against the Wabash, St. Louis & Pacific Railway Company and others to foreclose a mortgage on the property of the railway company. The Ohicago, Milwaukee & St. Paul Railway Oompany filed an intervening petition for a claim under certain traffic contracts. Defendant railway company answered, and, on hearing, the peti· tion was dismissed. The intervener appealed.
On December 5 and December 29, 1883, contracts providing, among things, for a pooling and division of competitive traffic, were entered into by and between seven railroad companies, to wit, the Union Pacific, the Chicago, Rock Island & Pacific, the Chicago, Milwaukee & St. Paul, the Wabash, St.· Louis & Pacific, the Chicago' & Northwestern, the Chicago, St. Paul, Minneapolis & Omaha, and the Missouri Pacific. There were four contracts. The first was between the Union Pacific Railway Company, as party of the first part, and the Chicago, Rock Island & Pacific Railway Company, as party of the second part, and the Chicago, Milwaukee & St. Paul Railway Company, as party of the third part. The other three contracts admitted the other parties into the pool, and made some modifications and extensions of the original contract. The four contracts were in effect one, and will be so treated. The following are some of the material provisions of the contract: The preamble declares the object of the contract to be to "make the railway system of the party of the first part substantially a part of the railway system of each of the other parties hereto, as to westward-bound traffic which will pass through Council Bluffs, in the state of Iowa, and each of the railway systems of the other parties substantially a part of the system of the party of the first part, as to east-bound traffic which will pass through the same place. · · · It is declared to be the purpose of the parties hereto by the execution of these articles, and the performance of the several covenants, promises, and agreements herein set out, to establish and operate through lines of railway, which shall connect, when the same can be done by a reasonably direct line through Council Bluffs, all points on the system of the party of the first part with all points on the several systems of the other parties (excepting the Kansas Division of the party of the first part and Its railroads in the state of Kansas), including all extensions of the main lines, branches, and other railways mentioned In the preamble hereto, and all lines and branches which are now owned, controlled, or operated by either of the parties hereto in connection with any of its railways above mentioned, and which may be added thereto by construction, purchase. lease, or other-