!EDERAJ. REPORTlj:R,
vol. 41.
THE DORIS ECKHOFF.
(Dtstrict Oou'rt, S.D. New York. February 21,1890.) . Where several vessels8re all in fault for collision, the damages should be divided between them pro rata, .u.bject to the limitation of liability prescribed by section 4288 of the ltevised If the amo)1nt recoverable from either vessel is len than 'her share of the loss of the cargo, such amount should be first applied on ac· count of .the cargo; and. the other vessels or their owners are chargeable pro rata, U,p to their limit of liability, for the balanc.e of the whole loss ,of cargo belonging to third persons not in fault,and for 'Proportion of t':1e loss of any other vessel; but the latter, to make goOd the loss of cargo, must apply thereto any moneys coming to her for her own loss, so far as necessary to make good her share of the cargo loss. Either vessel thus paying more than her share of the whole loss is entitled . to the. benefit of the judgment agaiDl.t a,ny other party, up to the limit of hisliabil. ity, for any ,excess paid in the first insta!1C6 on his account. OF LOSS'-cARGO.
In Admiralty. Settlement of decree·· George A. Black, for libelants. ' Goodrich Deady, for the Eckhoff. Jamea W. Osborne, for Hughes and Sherman.
J. By the collision between the bark Doris Eckhoff Rnd the schooner Flint, the Flint and her cargo were sunk and damaged. The. damages have been ascertained as follows: Damage to the Flint, $4,665; damage to the cargo, $8,205.26; master's personal effects, $118.97; damages to the Eckhoff, $939,74. The ,Flint was in tow of the. tug Stevens; the Doris Eckhoff was in tow of the tug Carter. All four were found in fault. 'l'he,re was no damage except to the Flint and her carg6, and $333. 74 damages to the Eckhoff'; and the damages were ordered to be apportioned. The tugs, being in custody in the eal3ternqistript, werenot joined in this libel with the Eckhoff; but their owners, Hughes and Sherman, were afterwards made co-respondents, under the fifty-ninth rule. All claim the benefit of the. limitat.ion of liabilitypro,vided by section 4283, Rev. St. ,D. . The owners of the Eckhoff and the Carter, not being privyto the faults of those vessels, are entitled to that limitation, namely, to the extent of their interest in those vessels. It is not necessary that they should pay the money into court, or make any surrender of the vessels, having set up the defense by answer. 'l'he Scotland, 105 U. S. 24,33, 34; The Great Western, 118 U. S. 526, 6 Sup. Ct. Rep. 1172. The value of the Eckhoff, as determineg, is $7,666.26. The value of the Carter is fixed at $2,430, of which Hughes' five-eighths interest is $1,518.75, and Sherman's threeeighths interest is $911.25. Hughes is also entitled to a similar limitation of his liability in respect to the Stevens, whose value is $505. His half interest in her is $252.50. Sherman, the owner of the other half interest in the Stevens, was master of her at t.he time of the collision, and chargeable with her fault; and he therefore is not entitled to any limitation of his liability under the statute, as respects her share of the loss. In the apportionment of damages, under these circumstances, and in the
THE DORISECKHOFJ'.
151
adju$tment of the claims of the parties inter 8e86, the following principles must be kept in mind: 1. The cargo owners, not being in fault, are entitled to be first paid in full. All the vessels and their owners are ultimately jointly and severally li!lble in solido for this claim, (The AtlaB, 93 U. S. 302,) subject only to the statutory limitation of liability as respects each vessel, so far as applicable. 2. All four being in fault, each tug and tow, for the purposes of apportiol}ment, may be, treatedltS a single vessel, chargeable with half the en;' tire loss; .or the Eckhoff and the Flint, the two colliding vessels, may ejl,ch be cOI).sideredas chargeable with one-half the damages, with a right in .both cases by each vessel to a pro rata contribution from the several tugs. If. all were responsible, and there was no limitation of liabilitYfi the result would be that each of the four vessels would be chargeable with one-fourth of the total damage, i. e., viz., $3,330.83, and interest. In consequence of the statutory limitation, however, the owners of the Carter are liable as respects her only for $2,430 and interest, and a part of the othe,r f?hares may not be collectible. In either case the remaining vessels or their owners must make up pro rata any such deficiencies from the other vessels or owners, not exceeding, however, the statutory limitation. Whf\tever portion of the one-fourth payable by each is not available by reas,on of inability to collect it, or by reason of limitation of liability, must be borne pro rata by the remaining vessels or their owners, and so on. Interest should be continued from the date of the commissioner'S report, computed upon the principal sums only, (see decree in The City of New York, filEld Feb. 24, 1886;)l and the owners who limit their liability aJ:e chargeable with interest from, March 8, 1886, the date of , , ,3. Upon further evidence, taken before me since the assessment of dap:lages,it appears that the libelants, in a suitin rem in the eastern district lj.gainst the tugs Carter and Stevens, have recovered by default a dethe Carter,,}lnder which they received,on January 10,1890, th,e ofthe proceeds of sa,le of that tug, viz., the sum of$2,004.24, to $1,629.46, besides their taxable costs ofaction. ,'l'hat sum is as of March 8, 1886, the !;late of the collision. Of-this sum, five-eighths, or $1,018.41, inures as a credit to Hughes, and the rest, viz., $611.05, to the of Sherman. As respects the Stevens, no decree has yet been entered in that action, nor any collections made from her; and I have,therefQre, nothing at present to do with the proceeds of the Ste.registry of the district, not as yet adjudicated. The vens in decree under which the proceeds of the Carter were obtained did n.ot dirl::ct any particular application ofthe money. The evidence on tbelibele.nt.s' part. before me shows that the recovery of that fund was the.resuH ()fthreeyears' litigation,in which the reasonable yalue of the legalservipes,!tn9.; the necessary legalexpenses over the taJl:able costs, were $1,200. .The libelants claim to Nocoun,ter-testimony was offe.red on that ;1
i
fl"
": .
158
vol; 41-
ofthefuhd'tecovered to be in a, suit like this, f6r the reason thM o,fthepropertyof HughesandShem1an, WllO, as the Carter, areehtitleo'fd1a limitation of their'liability auda credit:fdrthe whole' that futIclwas not caused by thelh/,rronvas it for either of them." It was a matter of indifference to theI;l1,so faJ;' fis appears, whether the fund should be on libelabls' lien' 6r drl: the liens against them, thijrefore, the expenses iii securing"the fund are no 'or lien. 'TMyalie 'entitled' to' have the whole amount recovered, Jess the colitS";'lipplied in diminuVon of their statutory limit <>{lilibilitj;and the' Whole niustthereforebe soapplie?, The litof that' fulid was, however, .in part. for the beneigation fot' fit of the Dbns Eckhoff, aswellas'-1:helibelants. :IfHughes and Sherman had been'solvent and responsible, that litigat:"nwould have been of no benefit to 'the Doris Eckhoff; since it would be inimaterial to her whether 'their shares of the 16ss should be collected out of the proceeds ofthe tug, or' uvonexecution against them personally. 'From what has been stated' bycounselbefdreme, I may assume that Hughes is responno evidence -to the contrary, but that Sherman is not. sible, To of Sherman's intere$t, "viz., three-eighths of the Carter, the expenses may be deemed incurh#for the joint benefit of the Doris Eckhoff and the libelants; 'and' therefore shared between them. This can be secured by allowing tpeFlint to' apply three-eighths of the 81,200, viz., 8450 of the amounfrecovetedfrotri the Oarter,to her own loss, after the diVision of damages between her'and the Doris Eckhoff, instead of before. The latter has no equity against this method, and it will satisfy the right of Hughes and Sherman to have all the proceeds, as their prop;. erty, applied upon the d!lmage claims. 8450, received January 10, 1890, is equal $372.36 as of March 8, 1886. The residue of the $1,629.46,'recovered as of that drtte, viz., $1,257.10, must inure equally to the benefit of the Flint and the Doris Eckhoff. If Sherman was re;sponsible, he and the Doris Eckhoff would each only be chargeable with one-third of the general loss, Mte;r erediting the amouiltS collected from Hughes. As he is not responsible; the decree against the Doris Eckhoff may be taken in a different form with the same final result, viz., for half the difference in the total on each side, i. $6,327.94, less one-half ohaid sum of $1,257.10; viz., tl. decree for$5,699.39, with interest from March 8, 1886;'leI38 tlieane-half of any further sums that may be collected from the Stevens, if' any, or from Hughes or Sherman personally, under this decree. As respects Hughes, since he owned five-eighths of the Carter, fiveeighths of the $1,629.46, received by'the libelants from the Carter as of March 8, :1886,8.re applicable towards Hughes' statutory limit of liability of 81,770.62. Applying' upon the latter amount fiv&'eighthsof the former, viz., $1,018.41, there: remahi which stim the libelants are entitled to a decree against Hughes, with interest from March 8, 1886 j and on payment of that 8um, and interest, with his shftre of
e.,
159 the libelants' costs, so far as allowed herein, Hughes is entitled to be exempted from further liability nnder the statute. , As against Sherman, the libelants are entitled to a decree for one-third the total loss, viz., $4,4'40;:09, less the Said sum of$611.05, already received to his credit from Carter, and less, also, one-third of the sum already received from the Carler on account of Hughes, or$339.47j that is, to a decree for·$3,489.27', with interest from March 8,1886, less onethird of any further sum that may be'reco'\7ered from Hughes under this for one-halfof any deficiency uncollected decreej and to a further from the Doris Eckhoff on-her share of the damages under this decree. As the libelants sue for both themselves and the cargo owners, and the latter have not perSdnallyintervened, and as there is no evidence that the libelants are not responsible, and able to pay their share of the whole loss,there cannot be any decree against the Doris Eckhoff in this' suit in favor of the cargo owners,beyond the amount above specified, with inwhioh will be held payable on aecbunt The cargo own.. ei'S 'must look to the libelants for the balance of their claims. No decree can be entered in suit 'in their favor against the libelants personally. A decree may be prepared in accordance herewith, cOlitaininga further provision, also, that the Doris Eckhoff; on paying for any deficiency collected of Hughes arid Sherman under this decree, shall be entitled "pro tanto to the benefit of this decree as against them. The costs up fu the interlocutory decree are divided. The Warren, 25 Fed. Rep. 782. Costs. The libelants are entitled- to recover their
. HOWARD, REDMOND fl. THE HOWARD CARROLL. (Dl.8t7ict Oourt, E. D. New York.
February 8, 1800.)
L CoLLISION-Tow
A tug with a tow, whicb, in a narrow cbannel, takes and maintains a course on the chance that a sailing vessel, beating in plain sight of ber, and which she is
AND
BAILING
VESSEL.
bound and able to avoid, will know her intention, and break her tack on being sig. naled, is in fault if collision ensue.
9.
SAME-SIzE OP TUG.
Tugs which undertake to tow large railroad floats about the harbor of New York must be of sufficient power to handle their floats easily and promptly, and able to avoid Bailing vessels which they may meet in the course of their navigation.
In Admiralty. Action for damages occasioned by collision between the schooner Early Bird and a tow in charge of the steam-tug Howard Carroll. Goodrich, Deady « Goodrich, for libelants. Hy1n.nd « Zabriskie, for claimant. JReported by Edward G. Benedict, Esq., of the New York bar.