464
DDERAL REPORTER,
vol. 49.
PErrnE m
tI.
BOSTON Tow-BOA.T Co.
(CWcuU CO'lIA't Q/ Appeals, Becona Circmt. December 14, 1891.)
L .
TOWAGB--Loss OP BARGE
. A barge, while being towed through a channel with a hawser 100 fathoms long, sheered from the course of the tug, and struck on submerg"ld rocks, causing her to sink. The pilot of the tug was unfamiliar with the obstructions of the channel, and allowed the tug to go too far to westward of the safe course. HeZd, that the loss of the barge was properly found to be due to the negligence of the tug.
Tow-INOOMPETENOB OP PILOT.
.. BAMB-8ALVAGE-REMISSNESS OPOWNER.
a.
The owner of the barge gave the underwriters notice of abandonment, and that he should claim a total loss. They sent a contracting salvor to the wreck, who made an examination, to ascerJ;aln whether the barge could be raised or her of coal recovered, and reported' that' the barge was not worth raising, and that the expense of recovering the coal would equal its value. HeZd, that the owner of the bar£l'e, in seeking to recover for her loss, was not chargeable with remissness, in making no attempt to ratse the barge or save her cargo.
There having been of the weak condition of the barge in order to induce the towage col1trlUlt, and her loss having been in no wise brought about by that condition, the fact that she was too rotten about the decks to admit of her be ing raised did not affect the owner's right to recover; nor was respondent entitled . ·to anat>portionment of the los. OD the ground but for the weakness of the barge; the loss would have been comparatively smau. S.otiD--FJu.'O'DULENTQVERVALU·...'l'ION--eoSTllo
S.ua:B--WEAXNESS OP LoST Tow-ApPORTIONMENT.
AppeBlfromthe Distritt Court 'of the United States for the Southem DistribtofNew York. In Adiniralty. Libel by Charles A. Pettie against the Boston TowBoat Oompany to recover for the loss of & barge. Decree ior libelant. Respondent, appeals. George Bethune Adams, for appellant. Edward H. Hobb8, for appellee. Before WALLACE and LACOMBE, Circuit Judges. Circuit ·. 'I'he barge Richmond Talbot, while being towed by the tug Joseph Bartram, on & voyage from Stonington to Boston, struck the rocks in Lloyd'schamlel, about three miles out from Stonington, and near the east end of Wicopcsset island, and was so injured that she sank immediately. Her owner filed this libel against the respondent, the owner of the tug, to recover the value of the barge and her cargo, on the theory, that the loss was the consequence of the negligent navigation of the tug. Among other things,the libel alleged that the barge was of the value of $5,500. TheansweI',among other that the accident ,was solely due to the carelessness of those in bharge of the barge, in allowirig her to sheer from the course of the tug. Upon the original hearing in the district court,the questions principally litigated were whether the tug was guilty of negligence in taking & course too near the
PETTIE 'D. BOSTON TOW-BOA.T CO.
466
rocks on the westward side of the channel, and in providing too long a hawser for the proper control of the barge under the conditions of the channel nnd the tide, or of negligence in either respect, or whether the disaster was caused by the improper navigation on the part of the tug. There was an interlocutory decree for the libelant, and a reference to a to ascertain and report the amount of the libelant's damages. ",A protracted hearing took place before the commissioner, and a large amount of testimony was introduced by both parties respecting the value and: ('oudition of the barge at the time of the loss, and upon the question whether the libelant was entitled to recover the whole value of the barge and her cargo, or was negligent in not attempting to raise her or the The libelant testified,.among other things, that he knew the value of such vessels, and that her value was $6,500 at the was started on the trip in question, and that just previous to time gqing o.n.this trip he was offered $5,500 for her by a ship-broker in New York city, whose name he did not remember. Twelve witnesses were introduced by the libelant and thirteen by the respondent, who were exam\Ded solely on the queetion of the condition and value of the barge. The commissioner reported the value of the vessel at the time of her loss at $3,QQQ., and the value of her cargo at $3,315.85; and that the libelwere the whole value of the vessel, $3,000, and the value ant's of her cargo, $3,315.85.' Exceptions were filed by the respondent to this report, and upon the hearing of the exceptions the district court ruled :that the libelant's damages were the whole value of vessel and cargo, although the loss was in part a consequence of the weakness and rottenness of the barge, which rendered raising her impracticable, and she was. so weak and rotten about her deck and water-ways she could not lie in a moderate tide, even in mild weather, without partially breaking up. The court sustained the exception of the respondent as to the value of the vessel, and ruled that her value did not exceed the sum of $1,760. Thereupon the respondent moved the court that the libelant be charged with the costs of the hearing before the commissioner, or some part thereof; but the court denied the motion. The final decree of the district court, thereafter entered, awarded the libelant the full amount of the value of the barge, and of her cargo and pending freight, at the time of the loss, and full costs of the action. The respondent has appealed. The assignments of error which raise the question whether the barge was sunk by the negligence of the tug, or in consequence of her own with the learned disnegligence, maybe disposed of briefly. We trict judge that the tug was in fault in going so far to the westward in the channel, and bringing the barge so near the submerged rocks on which she struck; that the barge was not in fault, but was navigated with reasonable care and skill by those in charge; aI;ld that the disaster was solely attributable to the fault of the tug. The pilot, Sheffield, had .never taken a tow through Lloyd's channel, had never but once gone through there,with a steamer, and was not sufficiently familiar with it to undertake to navigate a tug, in an ebb-tide, having in tow a barge v.49F.no.6-30
dr9lwing:19 feet ofwaWr, on a hawser long/" The law impOse8'upon thetowihgvessel the obligation to exercise. reasonable skill and care to avoid bringing the tow into collision with a "well-known obstrUctiOh, and her owner is responsible for the consequences offl disaster resulting from a want of propet knowledge of the perils of the service. When the tug has theeontrol of the navigation or both veslrels, those in charge must know the channel, the depth of the waterj the the tides, and the ascectliined obstructions in the locality where they attempt to go. The Lady Pike, 21 Wall. 1; The Mtrgaret,94U. ,S. 494; The:8ydney, 27 FE'd.Rep. 123. It has been sought ill the present case to shift the responsibility of the tug upon the barge, upon the theory that the pilot in charge of the navigation of the tug was selected by the master of the barge. There is no merit in this contention. The master of the tug requested the master of the barge to assist him in finding a pilot to take the vessels out of Stonington, and the latterwenf\\.;i'th him to find a pilot. The master of the barge took no partin selecting the ,pilot, and ·the evidence does not reasonably indicate that he intended to assume any responsibility in that behalf, or thatthe:ttiasler of the tug expEloUld him to do so; , ," i Although the barge W8S weak 'and rotten about her an.dwateras all iuducement'to the ways,thel'e was no ooncealment towage contract, and it is not shown that she was unfitior the proposed voyage,; If the accident had happened inconsequence ()f the infirmity of the barge, or if her COndition had been in any respect a cOiltributory cause,........s, for instance, if the shock would not have otherwise' caused her to:sink,--it might properly be urged that the damages for the loss shott1d:bedivided. Upon the facts as they are, there is no rOOm for that: contention.' She ,vas laden with nearly 800tons·of coal; and was carried upon the rocksElo that she struck, rebounded, and struck again, at lI'speedof 5 or 6 miles per hour. Othtlr assignments'of ierror raise the question whether the libelant should have been allowed· to recovertbe whole value of the barge and her cargo. ': It appears that he made no 'atternpt to raise the barge or save any part of her cargo. On the day of the accident he gave notice totna: underwriters of abandonment, and that he should claim a total loSs 'under his policy, bywhich he was'insured for $3,000 on the barge; The next day, at the instance of the underwriters, the wreck was visited by ll. contracting salvor, with a diver, men, and equipment, and an exalllination made to see if it was practJcl:lble to raise the vessel or remOve her cargo orcoal. The wreckers had rio facilities for raising the vessel, but were prepared to pump out the 'coal of which her cargo cOhsisted. The contractor reported' to the underwriters that' the' vessel was not worth raising, and that the cost of raising the coal would probably equal itsvalua. : There is DO reason to doubt that this was an honest conclusion, based upon intelligent investigation. Upon these facts it is quite unnecessary to consider, whether it was incumbent upon the libelant to endeavor to raise the vessel or save the cargo. It is: Undoubtedly the duty of the ownerotavessel, which has been sunk by the negligent
PETTIE 11. BOSTON TOW·BOATOO.
467
a(}t of another, to endeavor to raise and repair her and save her cargo, if, under the circumstances of the case, there is a reasonable probability that he can thereby mitigate his los8. The BaUimore, 8 Wall. 377; The OolumbUft, 3 W. Rob. 161; The Falcon, 19 Wan. 75. If. under such circumstances, he does not do so, he will not be permitted to profit by his own remissness. No principle in the law of damages is better established than that indemnity does not include damages which arise in consequence of the inactivity of the complaining party. Bagley v. Rolling-MilU!o., 21 Rep. 159; Warren v. Stoddart, 105 U. S. 224; Wicker v. Hoppock, 6 Wall. 94; Taylor v. Read, 4 Paige, 561. This principle has often been applied in admiralty, and to encourage reasonable endeavor on the part of those who have sustained loss, to mitigate the consequences, the courts have allowed to the owner of a vessel sunk in l\ collision the cost of raising her, besides her value before the wreck, when it was, necessary to raise her to ascertain whether she was worth repairing. 'The Empress Eugenie, Lush, 138. In the present case, howe\'er, it is manifest that, if the libelant had done all in his power to minimize the loSs" nothing would have been accomplished. No part of it, therefore,.is attributable to his own remissness. It has been ingeniously argued that the loss should be apportioned, beca.use it would have been comparatively small except for the weakneS/! of tbe, ,Doubtless the loss would have been laBS if she had been a strong yessel, strong enough to bear sinking without going to pieces. But the libelant is entitled to indemnity for his actual loss. He would not be compensated by indemnity for what he. would have lost if his vessel had been more staunch or had been so strong that she would not have been wounded at all. It might as well be contended that the wrong-doer, who strikes down a cripple or runs over a woman in the family-way, ill only responsible to the same extent as though he had injured a man or woman normally sound or well; or that he who sets fire to another's house is not to 'pay forthe furniture. because, if it had been a stone house instead of a wooden one, the furniture would not have been destroyed. The appellant insists that the libelant should not have been awarded the· costs of·tlle reference before the and urges that he was guilty of oppressive and fraudulent conduct upon the reference. We are a careful examination of the record that the lihelant corruptly attem pted, by his own testimony I and by the testimony of witnesses in his behalf, whose statements he did not himself believe to' be correct, to exaggerate'. the value of the barge, and obtain an inordinate cOlllpensaticn for her '1088. He was an ex,perl, thoroughly qualified to judge of the value of such a vessel. He knew what she had actually cost, and the appraisal placed upon her for ,insurance just before she was lost. His own testimony was false in respect to matters 8fl to which he CQuld not well be mistaken. Among other it had ever received the offer for the barge to which. lie had testified.' His recklessness in disregarding even the appearance of candor is shown by his attempt to prove the the barge at
468
FEDERAL REPORTER,
$6,500 or $7,000, although he had alleged it in the libel-to be but $5,500. It must be' assumed for present purposes that she was worth only $1,750. It would serve no useful purpose to enter upon any recapitulation or analysis of his testimony, and that of his witnesses, before the commissioner. It suffices to say that we are unable to consider his misstatements, and those of several of the witnesses produced by him, as venial errors which can be reconciled with integrity of purpose by attributing them to honest, but mistaken, estimates in matters of opinion. In deciding questions of costs, courts frequently apportion them so as to cause the costs of one part of the suit to fall upon one party"and those relating to another part to fall upon the other. It is the practice of courts of equity and admiralty. where the conduct of the successful party has been improper, to deny him costs, and in some 8 Beav. 439; Fhrcases to impose them upon him. Harvey v. rowv. Rees, 4 Beav. 25; The Marinin, 28 Fed. Rep.' 667. If all the testimony, taken before the commissioner had 'rela:ted only to the question of the value of the barge, we should have no hesitation, in charging tbe libelant with the taxable costs of the respondent upon the reference. As it is, we think it just and salutary that hebe disallowed his costs 'of the reference,' We are, not reviewing as an appellate oourt a question of discretion, but are hearing an appeal which is a; new trial, and muat therefore deal with questions of costs as though they were origin.l questions. The decree is reversed. and the cause remitted, withiinstructions to decree'in conformity with this opinion.
THE
IVANHOE tI. THE CuTLER. 1 THE MASCOT tI. SAME.
(DtstrEct Court. E. D. Pennsylvania. February 9, 1899.) 8.u.VAGB...;..P!:mPING CHARGES.
An ordinary pumping oharge, made by a tug for pumping out, during the time between the night and Q.ay tides. a sinking barge. tnathad been run up in ffontot the flats above Philadelphla, will be allowed wlien the tug could not run the barge suftioiently on the flats tor satetyat the nig-ht tide, and continuous pumping by the tug was necessary to keep the barge a1loat.
In AdIDiralty. Libel by the tugs Ivanhoe and Mascot against the barge Cutter and her cargo to rtlcover compensation for pumping services. Decree for $262.20. John F. Lewi8, for libelants. J. G. Lamb and ThoB. Hart, Jr., {or respondent. District Judge. ,On July 16, 1890, the respondent; while lying' at Port Richmond, on the Delaware, sustained an injury, which I
Reported by Mark WilksCollet, Esq., of the Philadelphia bar.
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