THE INTREPID.
185
"If an action should be brought in a state court, the ship-owner should file a libel in admiralty. with a like surrender or deposit of the fund, and either court, or procure an order from the district plead the fact in bar in the court to restrain the further prosecution of the suit."
The right of the district court, after it has in its possession the fund to be distributed, to issue an injunction, can, I think, also be supported upon the principle recognized in Dietzsch v. Huidekoper, 103 U. S. 494. The distri9t court has possession of the only fund to which the claimants have a right to resort 'for the payment of their claim. It is the only court competent to settle, by a decree binding upon all parties interested, the question of the right of the ship-owner to have his liability limited. The injunction would, therefore, appear to be, as in the case of Dietzsch v. Huidekoper, ancillary to its administration of that fund, and necessary to prevent its judgment and its proceeding from being nugatory. The issuing of such an injunction was, after careful consideration, sanctioned in the Providence & N. Y. S. S. Co. Case, 6 Ben. 124; and in the Long Island Transp. Co. Case, 5 Fed. Rep. which was followed in The Amsterdam, 23 Fed. Rep. 112. This proceeding is not a case of admiralty and maritime jurisdiction in which the right of a common-law remedy is expressly saved to suitors where the common law is competent to give it, because, as has been decided in the cases above cited, the common law is not competent to administer this maritime rule of limited liability where the vessel, or the fund representing it, is surrendered into the admiralty court by the owner.
THE INTREPID. J WRIGHT
et al.
'V. THE IN"TREPID.
(District Court, E. D. NcwYork. March 26, 1800·. 1. 2. COLLISION-,-PRACTICE-ExCEPTIONS TO ANSWER-8PECIFICATIONS.
When exceptioDs to a pleading are drawn with severa! specificationll, the fallure to sustain any specification is fatal to the exception. Exceptions to pleadings in collision cases are permitted only when made in good faith, for the sole purpose of obtaining the full statement of facts which the law requires.
SAr,fE-EXCEPTIONS-WHEN ALLOWED.
In Admiralty. On exceptions to answer. The libel in this case set forth a case of collision by night in the East river, New York, between the steam-boat Morrisania, belonging to the libelants, bound up stream from Fulton street, New York, to Astoria, Long island, and a car-float in tow of the steam-tug Intrepid, bound down the river. The answer of the ovyner of the Intrepid consisted of 11 lReported by Edward G. Benedict, Esq., of the New York bar.
186f
FEDERAL REPORTE:g \.
vol. 42.
articles. The first 8 articles admitted 01' traversed or denied any, knowl. edge aato the allegations of the libeL Article 10 set forth the faults charged by the Intrepid ohthe Morrisania. Article 9 was as follows: "Ninth·.Tbe claimant is acorp()r\'ltion created under the laws of the state engaged in tpe"transportation of cargo and cars between New and Wilson's Point, Conn., and is tbe sole owner of the steam.tug In. trepid, which is a new, large, and staunch 110 feet long on the keel; 22' feet beam, supplied and furnished with powerful engines for the transportation of car-.floats. On Thursday, Decemblir 19, 1889, the said steam.tug Intrepid left Wilson's Point, Conn., with the car·float No.1, with thereou, securely lashed. on the starboard side. of said tug, the bound for New York. After reaching the East river, the wind was light from the nOl'th..we!lt, the weather was clear starlight, and the tide wasthl'n;and at the time of the collision hereinafter mentioned, running strong flood. An experienced pilot and tug-boatcaptaiu was in charge in the pilot"house of the Intrepid, standing on the starboard side of. the wheel; another pilot was on the. port side,. assisting in the steering. The regulation towing lights were carried at the tug's flag.staff, aft, one above the other, a!ld. ohe white light forWard, with the red and green side lights on the top of th'e'pilot-house, properly screened. Two white lights were also on the car·float on her fiag-staff, with the red and green lights upon tbe pilot-bouse of t1'le Cl\r..float, properly screened, togetber with a white light on tbe forward end of.the:lloat. '.cbelllasterofthe car-float was in command, and in the pilot .house of the float att,en4ing to ber steering, and' a licensed pilot was for· 'Wll;rd 01',1 car·float,. W,here' he was devoting his undivided attention to his dutie1J as lookout. When the tug and had passed along the north side of Man O'War rock, they headed down in the middle of the river, steering a course rather towards the Brooklyn shore. When heading on that course, and proceeuing slowly about two or three miles an hour. two steamboats, the Cape Charles and the Maine, were sighted down tbe river, below Tenth street, and showing all their lights, which bore on the Intrepid's starboard bow. The Intrepid blew two blasts of her Whistle to signify that she would pass between the boats and th.e Brooklyn shore. 'rhe Cape Charles, which was ahead, answered with two blasts, and the ferry-boat Maine also blew two blasts. in assent, and appeared to stop lier engines. The Intrepid came on, and, when about abreast (lfthe Tenth·Street bUOy, was passing both of said boats in safety, wIlen just as the Gape Charles was a little past abeam, and the bows of the Maine had !Jeen reached, a steam"boat astern (which turned out to be the Morrisania) out from behind the Maine, directly in front of, tlle Inttepid's' her red light and White light, and at that moment bltlw one blast of be,!! whistle. The Intrepid atonce replied with several short alarm blasts, and backed full speed astern,but the kept on making'a rank'sheer ligbt in front of the intrepid, a col· lision ineYitable, bringing the port side of 'the Morrisania across the front of the car·float, and doing herself serious damage. Said collision occurred about a length below the Tenth-Street buo,)', and nearly abreast of North Fourth street, Brooklyn." of
To the the the following exceptions: , "The libelants except to the answerQf the claimants herein, on the ground of the andl;i,ncertainty thereof, and-First. In that it fails to state: (1) The length of the float; (2) to what part of it the tug was made fast, whether with the tug's'stern 'Projecting aft of the float, or her stem for. ward of tbe float, or whether the stern of the float projected aft of the tug, or her stem forward of said tug, and how tnuqh. BecomJ,. In that it fails to state:
Tall: .INTREPID.
187
(1) Whether the colored and white lights of the tug, or either or both of them, were so ·fixed as to be visible over the tops of the cars on the said float. Third. III that it fails to state: (1) How many cars there were on the said float; (2) what part of her length they covered. Fourth. In that it fails to state: (1) What were the white toWing lights which are described as regula· tion lights, which were carried on the tug's flag-staff aft, and through how lPany points of the compass they were viSible; (2) what was the character of the two white lights which were on the float, and through. how many points of the compass they were visible: (3) how far above the water and the deck the white towing lights of the tug were carried, and the distance of one above the other; (4) how far above the tops of the cars on the float said lights were; (5) whether the towing lights of the tug were aft of the smoke-stack of said tug or forward thereof: (6) how high above the water and the deck the two white lights on the flag-staff of the float were, and how far apart they were; (7) whether they were one above the other or horizontally; (8) Whether they were towing lights or otherwise; (9) what was the character of the white lights carried forward on the tug, and on the forward end of the float; (10) how high above the water and the deck said lights were carried: (11) through how illany points of the compass the same were visible. Fifth. Iq. that it fails to state: (1) At what point or opposite what place the said tug was when the stea.m-boats Cape Charles and Maine were sighted: (2) how far apart they were: (3) how far either of them was from the Brooklyu shore or the 'feuth·Street buoy; (4) in what part of the river they were: (5) how much they bore on the Intrepid's starboard bow; (6) how far off the Intrepid was when she blew the two blasts of her whistle; (7) how far off the Oape Charles was when she answered with two blasts of her whistle: (8) how far off the Maine was when she answered with two blasts of her whistle: (9) how far off she was when she appeared to stop her engine. Sixth. In that it fails to state: (1) On what course, and heading for what point, the Intrepid was when steering her course towards the Brooklyn shore; (2) how much the Intrepid changed hel' course after blowing the. two whistles, if at all: (3) how much the steam-boats Cape Charles and Maine changed their courses: (4) how the Intrepid was heading at the time the Cape Charles was a little past the l>eam. and the bows of the Maine had been nearly reached. Seventh. In that itfails to state: (1) How far off the Morrisania was when her red and white lights were first seen: (2) where the Morrisaniaappeared to be when she was drst seen,-opposite what point she was in the river; (3) how far distant she was from the Intrepid; (4) how far distant she was from the Maine; (5) whoit was on the Intrepid or the. float that first saw the Morrisania, and what report, if any, was made on the said tug or float, as to seeing the Morrisania. Eighth. In that it fails to state: (1) What the speed of the Intrepid was at the time the Morrisania was first seen: (2) what the speed of the flood-tide was, which is stated to run there with great speed; (3) in what direction the dood-tide was running: (4) what justification the Intrepid had for being on that side of the Eastriver."
George A. Black, for libelant. Wing, Shoudy & Putnam, for claimant. BENEDICT, J. When exceptions to an answer are drawn in the manner adopted in this case, it seems proper to hold the failure to sustain &ny specification to be fatal to the exceptiQn to which such specification is attached. As it is plain that to each of the exceptions a specification has been attached that cannot be upheld, the resultfolJows that all the exceptions must be overruled. Furthermore, if, as contended by the
lSS
FEDERAL REPORTER,
claimant, the exceptions number 38 instead of 8, the fact that 38 exceptions are taken to an answer in a simple collision case, which seems to have been drawn with fullness and care, taken in connection with the character of most of the exceptions, gives to the procf'eding the character of a cross-examination. Exceptions to pleadings in collision cases are permitted only when made in g;ood faith, for the sole purpose of obtaining the full statement of fact!! which the law requires. Exceptionl!i overruled.
THEW
AND THE ANGLIA. 1
(District Court, E. D. New York. April 14, 1890.) CoLLISION-PRACTICE-'-JOINT-DEPENDANTS-CROSs-LIllEL-COSTS.
The owners of tbe steam-ship A. libeled the steam.ship W. for damages by col. lision. The W., by petition under the fifty-ninth rule, made certain tugs co-defendant,s with herself in this suit, and also brought a cross-suit against the A. and the tugs, jointly. Tb.e A. was represented by one proctor; the tugs all appeared by another proctor. On the trial the W. was declared solely in fault for the collision. HeW.., that the tugs, and also the A., were entitled to tax against the W. a single bill of costs in each action.
In Admiralty. On appeal from taxation of costs. Wheeler, Cortis &; Godkin,for the Waverly. Wing, Shoudy &; Putnam, for the Anglia. R.D. Benedict, for the A. C. Cheney and the Goodwin. 'BENEDICT, J. These cases come before the court on a question of costs. The facts are these: The first libel was filed by the owners of the steam-ship 4-nglia against the steam-ship Waverly to recover for the injury to the Anglin in a collision with the Waverly. Into this suit, upon a petition filed by. the Waverly under the fifty-ninth admiralty rule, two tugs that were towing the at the time of the collision were brought as parties defendant. They were owned by different claimants, and interposed separate defenses. A libel was also filed in behalf of the owner of the steam-ship Waverly against the steam-ship Anglia, and the two tugs that had her in tow, to recover damages sustained by the Waverly in the same collision. The causes were heard together. The result was that the Waverly was found solely in fault for the collision. The libel of the Anglia against the Waverly was therefore sustained, and the petition of the Waverly against the tugs, brought into this action, was dismissed. In the second action, the libel of the Waverly against the Anglia and the two tugs, in which each vessel had interposed a separate defense, was dismissed. The two tugs were represented by a single ptoetor{ who now seeks to recover a single bill of costs against the Waverly in the first action, and also a single bill of I
Reporl:.ea by Edward G. Benedict, Esq., of the New Yorll: bar.