FEDERAL REPORTER,
vol. 42;
SOUTHWESTERN TRANSP.
Co.V.
PITTSBURG COAL CO.
(DistTf.ot Court, E. D. Louisiana. June 8, 1890.) ADMIRALTyPRACTIOE:-CJloss-LIBEL.
In a suit for salvage by the crew and owners of a tug for sa:vlng a fleet of coal barges which had been: loosened fromtheil' moorings and scattered by the wind, a counter-claim for the wrongful mooring of t4e tug to the outer baJ.'ge of the fleet, whereby the accidellt occurred which exposed the barges to the danger from which the tug saved them 'is not the proper subject of a cross-libel. '
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SOUTHWESTERN TRANSP. CO. ". PITTSBURG COAL
co.
921
necessarily because they arise from the saIne cause of action··' The cause of action>in a suit to recover salvage is the saving of pl'operty exposed to danger under such circumstances as entitle a party to compensation. The cause of action in the cross-libel is the destruction of property of the cross-libelant at the same time, and under the sam.e circumstances, i. e'l with the same Jacts, as were the tima l circumstances, and facts in connection with which the alleged saving was effected. The property saved and the property destroyed are not the same. The result would be in favor of the same party in both cases; not because the causes are the same, or spring out of the same cause of action, but because the facts which would disprove meritorious saving of certain property would establish wrongful destruction of other property. When the claim of the libelant and the counterclaim of the cros&olibelant arise out of contract, as for instance, when the origin of each is a contract of affreightment,-one suing for non-delivery and the other suing for the freight money,-it is easy to apply the fiftythird rule. This was done by the court in Vianello v. The Credit Lyemnais,15 Fed. Rep. 637. The cause of action was a commutative con':' tract, different stipulations of which formed the basis of the claim and counter-claim, and these>stipulalionswere parts of a whole. But the basis of the respective ,claims here involve an identity as to time; as to the character of the alleged act of mooring. but they are not identical as to the things themselves which were the objects saved and destroyed. One claim is for a tort. Torts to involve or spring out of the same cause of action must be with reference to the, same wrong. I think rule 53 in admiralty was intended by the supreme court to make a cross-libel in admir(ilty proper in the same class of cases in which a cross-bill. for reJief inequity will lie. The limitations in such cases are stated by the Co.. v. Goodyoor, 9 Wall. 788. At page 809 the court says: . , "A cfOl;ls-bill is brought * * *. or toobtaiu complete relief to all the ,parties a& to the matters charged in the original bill. It should not introduce any distinct miltter. It is the auxiliary to the original suit. and a graft and dependency upon it. lfitspnrpose be different from this. it is not a cross-bill, though it may have a connection with the same general subject." , 'See, Cr088 v. De Valle, 1 Wall. 5, where a bill had been filed to have a conditional devise ,operative because of the alienage of certain parties, and the heirs at law sought bya cross-bill to have their rights determined to the same property, and the court held the cross-bill would not lie. '" , The matters set up in the cross-libel in this case would clearly not be proper mattersfor a cross-bill for relief in equity. In these cross-pleadingsthe courts seem to with absolute uniformity to the principle laid down by Lord COKE: Idem non similis. See The Theresa Wolf, 4 Fed. Rep. 152. . . , " Noris .there a,ny del1ialof a right in requiring the defendant to resort to an onghial libel. After he has instituted his suit, it may for the purposes of trial, at!e/:lskc9,n!lOlidated with
be
Bftl'obtaiiied in botnoases,equity will furrlish a method t09nable pmy'to obtain a ,The onlydisadvantage to the defendant is that hetwilHose t1)eright,to insist upon a bond if his suit is in .per8anam. But this result would be wrought oy a ru1e which was not intended in such a case to secure to a defendant that right. The motion to the !order requiring a bond, and staying libela,nt's is allowed., ,'
THE: STROMA. l ,i
',,, ' ' j',
,
Oourt, S. D. New York. May 15, 1890.) TO VESSEL FROM
A wharfinger is not liable for injuries occasioned to avessel, while mooring, by 'reall!m1i:lfrecent obstructions in the water along-side the ao(lk caused by the 81nk. , !ing" ¢ a ,4redge, the circumstances are: as well known to the agents of the vesse! as, to the wharftllger, and they, and not the wharfinger, undertake to dock the Wip in a manner to avoid the apprehended obstructiolUlo' , 'i"
OFWlIAJU'INGBB.
In Adttliralty. ButZer,Btillman & H1JlJbard, for libelant. C<ntd.erl 'Br08., for respondent.
"'The 'libelant, as owner 'of the steam'ar Stroma, seeks to recover ;diiipages by the steamer while moor,ad" along-side, the respondent'spiei'at Coloa; Panama, on DecemberSl; '18SS. With the fall of the tide the steamer settled upon the point of a spindle, which was the upperen<J of a attached to a sunken: dredge., The spindle steam:er'lfi3lde as her ,to fill with water and sink. been and to the' Gourt, No case {s cited, however, in,'\Yhich aWharfillger :been held un..,. der like nor does the case seem to me to fall on ""h,i?h,wharfingers ,are held They are bound to Care and ,dihgence as to the safety of theIr ships that come to theirwhtirves on theirinvitation shall not be'damaged byunsus'pected obstructibns; and, indase of danger, to give due noticll thereof. In .the present case the dredge had in the slip,severlU 'Qefore. " Mr:Andrews, the ldcal agent of the steamer, 'saw sink., Froili the Strdrriawent along-'side at theph:ir, vesselbad beellpermitted ,by the ent tog6 '1:,6 the pier on that side of the slip. ' Work was ,prpceeding for the removal, of the dredge,.and, several. buoys had been set to' ihdicate plice of its severa] parf.l3. Mr. Andrews' was iii the' 'immediate
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the
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JReported by Edward G.Benedict, Esq., of the' New York bar.