'with liens created by tlie general admiralty law, must be treated as composing a part of the second class of claims. (4) Claims for materials and labor in the building of the boat. (5) Mortgage claims. (6) Cll1;ims for borrowed money for those purposes to which no liens attach in admiralty.
THE MECHANW." THE FREE STATE.-
(District Court, E. D. PennsyZfJania. November 9, 1881.)
ADMIRALTY-TuG AND Tow-TEMPORARY ABSENCE OF TUG··-MoORING OF Tow -EXTRAORDINARY STORM.
A tow of canal barges was left by the tugs having them in charge in an apparently safe harbor, moored to a wharf and floating platform"the tugs proceeding , in search of another tow whose arrival was expected. During the absence of the tugs an extraordinary storm arose, and the barges were swept away. Their owners claimed that the loss was due to the absence of the tugs, and the de, fective condition of the platform to which the tow was moored. Ileld, that the' temporary absence of the tugs, in of uniform custom, did not constitute negligence. Ileld, further, that the evidimce failed to sustain the 'allegation that the loss was due to defects in the platform.
'Libel in personam by the owners of two canal barges against the ,owners of two tugs, to recover damages for injuries to the barges alleged to have been caused by the negligence of the tugs. The facts were as follows:
On Octolwr 4, 1877, the barges Mechanic and l'ree State, loaded with coal, ,were, with other barges, taken in tow by the tugs Sherman and Sawtelle, 'belonging to respondents, at Fairmount dam, on the river Schuylkill, for a voyage to Bordentown, New Jersey. About 6 o'clock P. M. they reached a point on the Schuylkill below Gray'a ferry bridge, and were there moored to a .wharf and floating platform of logs, leased by respondents, and used for moor'ing boats. '.rhe platform consisted of logs running from the wharf up the river parallel with the ,Qank, joined together by transverse hoards, and fa:>telled to the wharf and to trees' on the bank. On the inner log were cleats used for "fastening boats by their hawsers. The tow, consisting' of five tiers of four barges each, and one tier of barges, was made fast to this platform' by lines from the inside boats to these cleats. The two tugs left the tow after it had been moored and proceeded down the river to meet an expected incom. ing tow. Not meeting this tow, the tugs turned back, but before reaching their own, tow put in and moored at anothflr landing. ,During the evening an extraordinary storm arose, accompanied, by a freshet;., the tow, w.as swept from its moorings, and the :Mechanic and Free state About the time the barges: were set adrift the tugs came to their ltdsistancc, but were unable to save them, and were themselves driven ashore. Libellants'testimony \\:as
'*Reporte,l by Frank P. Prichard, Esq, ot the Philadelphia bar.
to the effect that the tugs could safelyhaye,returlled. tp'the tpw ,before.
storm reached its height; that on the platform were insufficient, defective, and rotten; and that the breaking of these cleats caused the loss, Respondents' testimony was to the effect that the violence of the storm was such as to prevent the tugs from immediately returning to the tow; that the cleats were properly constructed and in good condition, and had been recently inspected; and that the loss was due to the extraordinary violence of the storm.
Edward F. Pugh, for libellants. Alfred Driver, Henry R. Edmunds, and J. TVa1.,.en Coulston, for f3spondents. BUTLER, D. J. The storm and flood in which the boats were lost are, of themselves, quite sufficient .to fortha disaster. The loss must, therefore, be assigned to this cause. alone, unless can. tributary negligence be shown. The libellants charge such negli. gence, and specify three distinct instances in which they' say it ensted: First,in making up the tow,; second, in being absent from it when danger threatened; and. third, in mooring the tow to afloat in imperfect condition. The burden of proof is on the libella.nts. I find nothing to justify the first specification; the tow wltsmade up according to common usage. 'l'hispoint. indeed, was virtually abandoned on the argument. Nor do I· find anything to justify the second specification. The. boats were securely nwored in 'a, safe harbor,-where no danger had ever been experienced, and where,. therefOl;e, none could reasonably be expected. The respondents, having oocasion to betempQrarily absent, left the tow, in pursuance of u,niform custom. When the storm came,or increased in violence, and the water rose, so as to create apprehension of danger,it was their duty to return, and make all proper effOl'ts ·tQsave the boats. The evidence, however, justifies a ,belief that to return at this time The suddenness and violence of the was virtually storm,and the darkness of the night, rendered such an effort unnec·. essarily haza.rdous, if not futile. Although the evidence .isnot har. monious, its preponderating weight sustains this view. I am by no means satisfied, however, that the respondents'absence contributed to the disaster. It seems quite probable that the resulLwouldhave been the Bame if they had been present. The libellants, who were on the boats, saw no cause of alarm until the crisis was imminent, when nothing effective could be done. An increase of attachments to the float would probably have been useless. If the attachments had held fast it is reasonable to believe-Cas the libellants' witness asserts) that the force of the wind, and current in the river,
would have Bwept the float, and everything connected with it, away. That a few boats remained fast, does not tend to prove that the entire tow might thus have been saved. The enormous strain of BO many loaded boats, under the force of the storm and flood, must have been virtually irresistible. Nor is it probable the tugs could have held them, or rendered any essential aid, Ily taking the hawsers. The attempt made by this means, directly after the attachments to the float gave way, failed. The tugs could do little more than sa.ve themselves. As respects the third specification, (principally relied upon by the libellants,) the witnesses who speak directly to the point are in serious conflict,;.....;.those called by the libellants saying that the logs and cleats were rotten and unsafe, and those called by the respondents saying they were sound and secure. View-edin the light of this direct testimony alone, the fact would be in doubt. Considering the opportunity of the several witnesses to see and judge, it could not be said that the weight otevidence is with the libellants. Viewed in the light of surrounding circumstances, also,'-the overhauling of the float some months before the accident, and the slight repairs required after this event, and the more significant fact that the tow was held fora considerable time under great pressure, and broke away only when the storm and flood had reached their height,-the decided weight of the evidence seems to be with the respondents. No debatable question of law is involved in the case. The respondents were bound to the observance of such vigilance and care as the safety of the boats called for, under existing circumstances. They could not anticipate such a contingency as arose, and were not, therefore, required to prepare for it. It was not only extraordinary, but, so far as the witnesses know, unprecedented. Under ordinary circumstances,-in such weather as the respondents were justified in expecting,-the boats would have been entirely secure. When the extraordinary emergency arose no adequate provision for it was prac\. ticable. Unfortunate as the libellants have been, they have no just claim on the respondents for compensation. The libels must, therefore, be dismissed, with costs.
ONION INS. CO. V. GLOVER.
(Oircuit Oourt, D. Maine. September, 1881.) L
EQUITABLE ASSIGNMENTS-BILL OF INTERPLEADER.
An assignment of a part only of a particular fund is valid in equity. After a loss occurred, the holder of a policy of insurance gave an order on the company for a specific sum, which was less than the total amount of the policy and less also than the amount due from the company to the assured on this loss. '1'he party named in the order b.fought· an ac.tiiln against the company in a state court in the name of the assured, and the assuredsubsequently brought a similar suit in this court. While both actions were pending, the insurance company filed a bill of interpleader against the parties to these suits, to have their rights as to the amount due on the policy ascertaiJied. lIeld, that the court can determine the rights of the parties; and, further, that the order constituted an equitable assignment of the amount named in it.
In Equity·. A. P. Gould, for E. K. Glover. A. A. Strout and W. Gilbert, for C. C. Glover. F. A. for the In.surance Company. Fox, D. J. On the twentieth day of April, 1878, the complainant, by policy No. 6,305, insured the sum of $2,500 on brig J. M. Wiswell for one year; loss payable to C. C. Glover, who was the master and owner of nine-sixteenths of the brig.
Within the year the vessel met with disaster in the English channel, and, for the benefit of all concerned, was beached near Dartmouth. She was SUbsequently taken to that port and there sold. Controversies in relation to the general average arose between the master and the owners ofber cargo, which are, it is stated, still pending in the courts of England. In May, 1879, C. C. Glover returned to Hocklalld, in this state, where his brothers, E. K. and W. H. Glover reside, each of whom ownedone-eighth of said brig. In July, Charles was desirous of obtaining funds with which to return to England, as he claimed, to pay bills there incurred about tl).e general average claims. He applied to his brothers to advance him $1,000 on that account. William had always refused to join in the prosecution of the general average claims, and declined to advance funds for that purpose, but was willing to loan Charles $1,000, on receiving as security for its payment an assignment from Charles of the policy of insurance. Such an instrument was drawn in the usual form, July 7th, and a power of attorney was given by Charles to E. K. on the same day, authorizing him to collect the insurance from the company. Charles afterwards refused to execute the assignment of the policy to William, and William declined to loan him the $1,000. , On the ninth day of July, Charles l"eceived from E. .K. Glover $600, which