NEALL V. CUHRAN.
to,the harvester were subsequently improved. We think that Fowler's invention was probably in the Appleby machine as and when it was tried in June, 1876; but it is unnecessary to analyze the testimony with the' closest care, and to decide the question of the priority of the patents upon which have now expired, for the case Of the co'p:ipl;linant is so defective by re;ason of the laches of himself and his co-owners that the decree of the circuit court must be affirmed', wit.h costs. '
NEALL v. CURRAN et at (District Court, D. Massachusetts.
ADMIRAI,TV PLEADING JOINDER, DISCRETION OF COURT MULTIFARIOUSNESS AND MIS-
April 21, 1899.)
, . ':I'here'is no rule of admiralty pleading which renders a libel by a vessel owner, to recover freight earned subject to exception for multifariousness and misjoinder because it joins the charterer and another, to whom the bill of lading had been transferred, and asks recovery in the alternative against one or the other, alleging that, by reaS<ln of certain facts set out, the libelant is unable to say which is llable; and the court has discretionto permit such joinder, where it will conduce to its own convenience In the, trial of ,the claims, and will result in no injustice to the parties.
In Admiralty. On exception to libel' Oarver & B.lodgett, fpr libelant. Henry: .M. Rogers, for LOWEtL,District Judge. The libel in this case was brought by the owner of the barge Felix against Ourran & Burton and the Delaware Insllrance Company. It sets out that the Felix was chartered to Curran & Burton to carry a cargo of coal; that she was loaded, and a bill' oflading given to her master, in which Curran & Burton were designated as consignees i that she was wrecked while on her voyage, raised, and a large part of her cargo delivered according to the of the charter and the bill of lading; that. the insurance company had issued a policy of insurance to Curran & Burton on the cargo, had paid to them a total loss, had received the bill of lading, duly indorsed by Ourran & Burton to the insurance company, and had become subrogated to the rights of Ourran & Burton, and subject to their liabilities all consignees and shippers; that the cargo was received by Ourran & Burton, on behalf of the insurance company, without notice to the libelant; that freight was earned thereon, and was demanded both from Curran &. Burton and from the insurance company, and that each of the claimants alleged that the said freight should be paid by the other; "that the said freight as aforesaid is due to your libelant from the said Ourran & Burton, as the persons making the contract of charter and the receivers of the same, and ill also due from the said Delaware Insurance Oompany, as the holders of the bill of lading, and persons receiving the property, they afterwards having sold it." The claimants duly excepted upon the
93 FIiJDE;RAL REPORTER.
misjoinder, and alleJibelwe,re . and . and. because. the lIbelant was bound to elect w)iichof he would seek to hold liable; :ind to disc6ndnue the other. ... ' ,,' . .' As the case ",as presented in the lire! !Lnd at the argument, it is out of a g,iven charter party, which Cl3.1m,he 'alleges, is valid against both the claimants, or, at the least, against one of them; but, if against only one, then, by reason of a doubt concerning law or fact, he is ignorant which defendant is liable. The libelant, in substance, says: "As the result of a certain transaction, A: and B. are lilible to me,-one or both,-I do not know which; and therefore I proceed against both of them in the same suit, seeking to recover against one or both according as my right shall appear." It should be added that the libelant has dis<;losed .the circumstances of his claim as fully as he can, and that the claimants do not contend that he has concealed anything, or that they will be taken by surprise. If this were a declaration at ,common law, it,' would be demurrable, and so it would very possibly be if it were ,a bill in equity. No case has been pointed out in which a plaintiff was permitted to sue A. and B. in one action, alleging that one of the two was liable,-he did not know whieh. This is a libel in admiralty, and the libelant contends that i'Ii admiralty the rule is different. There is no doubt that the rules of pleading in admiralt,Y are more liberal than at law or in equity. Multifariousness and misjoinder are to some extent technical defenses. Their validity as defenses is largely determined by historical cOBsideraHons and by early precedents in pleading. .The substantial reason why two controversies closely related to each other may not, iIi a given case, be determined in one action, is that from their joinder' and from their trial together there would result either inconvenience to the court or injustice to a party. In the case at bar the convenience of the court makes for joinder and a trial of the plaintiff's claims at the same time, and sllcha trial will do no injQ:Stice to either of the claitnants. If the faetsi;n this wereW be investigated by a jury; the [might well ;be ll; joint tria'! of the claims agamst as the Jllry mlghtlIastIly mfer that. one, of the two daimams' m,llst be liable, but be,fore a judge no h!LI'm' will ensue. With r111es'ofpleadingsoelastic as those in admiralty, much must be lefttothfdiscretion of the c,ourt; and it may be that, in sOme cases in parties, in the alternative, arising the same transacti'6,n; cannot properly be joined and tried togetMr'.', In this' case I think justice and convenience unite to niake asihg'le actiOIi luid a single tldvisable. Exceptions overruled. '
(Circuit Court of Appeals, Second Circuit. No. 125.
TUG AND Tow-LIABILITY OF TUG FOR INJURY TO Tow.
April 4, 1899.)
Where the presence of a number of vessels, moored alongside of each other in Harlem river, made it necessary for tugs with a tow, in passing down, to keep well to the opposite side. of the channel, but they kept within the limits where the water was of sufficient depth, as shown by the government charts, they cannot be held liable for an injury to the tow caused by her striking a sunken rock, which was not shown Oil the charts or known to navigators.
Appeal from the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from a decree of the district court, Southern district of New York, dismissing the libel. 89 Fed. 879. The suit was brought to recover damages alleged to have been caused by the said tugs in negligently towing the libelant's barge, Joseph H. Rose, upon a rock in the Harlem river, on September 4, 1897. George B. Adams, for appellant. Peter Alexander, for appellee. Before WALLACE, LACOMBE, and Circuit Judgt-g. PER CURIAM. The barge was being towed from the entrance of Spuyten Duyvil creek, down the Harlem river, bound for 138th'street. She drew 8! feet, the rock was about 5t feet under water at low tide, and the ordinary rise and fall of the tide was about 5 feet. The tide had been flood for about an hour and a half in the Hudson river when the tow started. The flood tide flows from the Hudson river down the Harlem. There seems to be no dispute, upon the evidence, that the existence of the rock was not known to navigators. Upon the charts of soundings made by the government, incident to the improvements being made on the Harlem river, its presence was not indicated. These improvements had effected changes in the channel, but the dredging had not been continued quite as far down the river. It stopped about 15 feet short of the rock. As the tow approached Morris' dock, it was found that a number of boats were made fast there, alongside of each other, so as to occupy 150 feet of the channel,-a most reprehensible practice in such a restricted water way. In order to pass it was necessary to keep the tow well over to· the westward. There is a sharp conflict of evidence as to the precise location of the rock. Claimant's witnesses place it nearly opposite )lorris' Dock. The libelant's Witness, Taylor, a civil engineer of 20 years' experience, and who had been employed for 11 years by the government as engineer in charge of the work on Harlem river, places it a little below the line of the dock, and further to the westward. He located. the rock by actual SUITey with a sextant, using the triangulation stations already fixed as part of the survey work done by the government