ANDUS V. STEAMBOAT SARATOGA.
731
below the lower bridge at Albany, the steamboat Saratoga, a. large passenger boat, about 300 feet long and 66 feet wide, bound from Troy to New York, was following nearly astern of the tow, being just below the bridge, but having the tow a little on her port bow. The speed of the Saratoga was about six and a half miles an hour, so that she was rapidly overtaking the tow. When she got within about 300 yards of the stern of the tow her pilot determined to pass on the eastward side of the tow-that is, between the tow and the dike, along which the tow was still passing-and he blew two whistles, to indicate to the pilot of the tow that such was his intention. To this signal he got no reply from the tow, but he kept on, putting his wheel to starboard. . The principal question of fact in the case is whether there was room between the tow and the dike, when the Saratoga. made this movement, to justify her in attempting to pass on that side of the tow. The witnesses from the tow, except the pilot of the tug, put the distance at 20 to 30 feet, the pilot of the tug at 50 to 75 feet,and the captain, pilot and wheelsman, ·of the Saratoga at 80 to 100 feet. I am satisfied that the witnesses from the canal boats have underestimated the distance, and that the Saratoga would not have attempted this maneuver if the tow had been within 20 to 30 feet, for it was evident that her pilot could not have expected the tow to get out of the way after he gave the signal and starboarded to get on the eastward side of her; but, on the other hand, it is evident from the testimony of those from the Saratoga that when she got up as she did, lapping the stern boat in the tow by about 40 feet, they found it impossible to clear the tow and pass between her and the dike. The starboard guard of the Saratoga actually came in contact with the stern boat of the tow, while she was thus lapping and backing her engine to get herself out of the way. The witnesses from the Saratoga attempt to explain this by testifying that while she was tpus lyiug still in the water,'with her engine reversed, the tow sagged down with the wind some 40 feet against the Saratoga. This theory has no support except in the imagination of these witnesses. The .proof is
732
FEDERAL REPORTER.
that there was no such wind as would be necessary to make this change in the tow, and if there had been the tow, which kept on all the time, would have grounded or been windbound against the dike long before she reached the end of it. It is evident enough that the reason why, in trying to pass the tail of the tow, the Saratoga came in contact with it, was that there was not space between it and the dike for her to go in there without touching the tow. The evidence is that the water is deep close up to the dike, and if there had been room enough for her to go in there at all she would have left some space between herself and the tow. The steamboat's witnesses also say that there was room enough there, but that when she got there they saw the McMahon change her course to the eastward, and that then, for the :first time, they saw they copld not get by, the difficulty being not that they could not pass the tow, but that if they passed the tow they could not afterwards pass the change McMahon. There is not sufficient proof of the of course on the part of the tug, and if there were, as the same witnesses also say it had not made long enough to affect the course of the tow, it would seem to furnish nO justification for coming in contact with or so close to the stern of the tow, if there was room enough to avoid it. Upon the whole testimony I think there was not room enough to justify the Saratoga in attempting to pass on the port side of the tow, and that she was chargeable with negligence in getting into the position in which she found herself compelled suddenly to reverse her engine and back, while crossing the tail of the tow at a slight angle and close astern of it. The testimony is that at this point the channel is narrow, and the swell from the wheels of a steamer is more dangerous than at points in the river where the channel is less contracted. There was room enough for her to go down on the starboard hand of the tow, as she did after hacking out, leaving a clear space between the1lll0f 30 feet or more. Just below this point, also, the river widens out, so that, if she could not have safely passed on either side, it was her dnty to wait till they reached a point in the river where she could
DUNCAN
V.
THE
C.
H. FOSTER.
733
have safely passed. The effect of her backing, in 80 close proximity to the tow, was to raise a swell which dashed the canal·boats together with such violence that several of them, including the libellant's boat, were seriously damaged. There was no proof to sustain the averments of the answer that libellant's boat was unsound and unseaworthy. The Saratoga is clearly liable !Ol' the damages sustained. The C. H. Northam, 13 Bl. 31. The suggestion that the law of the state required the tow to keep on the western side of the channel is not material in the present case, since. the tow being in the wrong place, if she was so, would not justify the steamboat in violating her plain duty to keep out of her way, having her in full sight, and being able to do so. The position of the tow was not the cause of the injury. Decree for the libellant, with costs, and a reference to compute the damages.
THE C. H. FOSTER (WILLIAM K. DUNCAN v.) GEORGE N. COOMBS V.
WILLIAM K. DUNCAN.
THE C. H. FOSTER (GRANVILLE E. CARLETON v.) (Circuit Court, D. Ma88achU8ett8. Apl'il17,1880.) COLLISION-CONTRIBUTION FOR CARGO OUT OF DAMAGES DUE FOR LoBS OF VESSEIr-PLEADING-AMENDMENT-CONFORfUTlON OF DECREE TO FACTS ARISING AFTER LIBEL lIAS BEEN FILED.
In Admiralty. John C. Dodge and Frederic Dodge, for the C. H. Foster. Frank Goodwin, for the Helen Mar. LOWELL, J. These three cases arose out of a. collision between the schooners Helen Mar and C. H. Foster, by which the Helen Mar and her cargo were totally lost; and some damage was suffered by the C. H. Foster, but none by the· cargo which was on board of that vessel. The cases were tried together, and both vessels were declared blameworthy, and the damages have been assessed. No exception has been taken to any of the findings of law or fact excepting one, which was ruled
\
pro forma in the district court, it being thought more convenient for the parties that I should decide it, as I tried the case when district judge. The owners of the cargo could have proceeded against either vessel; but one having been destroyed, the liability of the owners of that vessel, the Helen Mar, was limited to her value. Rev. St. § 4283. They therefore brought their libel against the C. H. Foster, and have recovered a decree for their whole damage. In the two cases between the vessels a balance is struck, and there is found due to the owners of the Helen Mar a sum, not very large, but somewhat more than half as much as the C. H. Foster has been decreed to pay to the owners of cargo. Under these circumstances, the owners of the C. H. Foster represent that they ought not to be obliged to pay the whole sum decreed to the owners of the Helen Mar, when they will have a right to recover against them one.half of the damages paid on the cargo, which is nearly as large, and these owners are not within this jurisdiction. The first question, then, is whether the owners of the Helen Mar are bound, as between themselves and the owners of the C. H. Foster, to contribute for the cargo out of the damages due them for the loss of their vessel. It seems to me that this question must be answered in the affirmative. As between these parties the damages represent the vessel, and it i!- a question how much each ought to contribute. It is upon this principle that a cross·libel is brought in such cases against tM owners of the lost vessel, not that the libellants expect to recover personal damage, but that the amount may be properly adjusted between the two vessels, so that their own liability may be diminished. Such were the facts in another case, where one of the vessels, which happens to have the same name as the vessel lost here, was a total los8, but it was taken for granted that she was to contribute. The Ontario v. Helen Mar, 2 Lowell, 40; 1 Holmes 467. I have seen a copy of an able opinion of Judge Choate to the same effect. Leonard v. Whitwill, December 12, 1879. The arguments turned chiefly upon the point of pleading whether there is any mode by which the owners of the C. H.
