When cases arise which have .not been provided for in the rules prescribed by the supreme court, the district courts, as the only courts of original jurisdiction in admiralty, have the power, and are bound, to devise modes of proceeding which shall enable them to carr)' into effectual execution any law which they are called to administer." ' II: ...
.
The case of The Hudson, supra, and the fifty-ninth rule in admiralty, though not literally applicable, furnish also an analogy for this order. A similar practice has been occasionally followed, where necessary, in cases not literally within the rule. TIw Oity of Lincoln, 25 Fed. Rep. 835; The John Cottrell, 34 Fed. Rep. 907; The DoriJJ Eckhoff, 32 Fed. Rep. 555; Joice v. Oanal-Boats, Id. 553. This case is one in which the libelants may proceed in rem and in personam in the same action, under the long-standing practice of. this circuit. The Monte A., 12 Fed. Rep. 336, 337, and cases there cited; Joice v. Canal-Boats, 32 Fed. Rep. 554. He might, therefore, originally have made both the ship and the charterers' defendants. He should not be suffered to proceed capriciouly against. one only; to the certain prejudice of the other. This can be remedied by the joinder of the charterers as defendants now; and this will 'create no material embarrassment or inconvenience to the libelant. It is the oharterers who have brought the ship into this situation. It is their contract that is sued on. It is they who have the means of defense,' if there· is any defense; and it is they who ought to pay, if there is anything to be paid. I have no doubt of the authority of the court to bring in the charterers as defendants. To refuse to do 80, under such circumstances, would, it seems to me, be a denial of justice. The motion to set aside the additional process is therefore denied. The process should require the defendant to answer the libel and petition, and the petition should set forth all that is needed in connection with the libel to constitute a cause of action against the'charterers.
BOUKER. tI. SMITH,
(two cases.)
(Dlstrict Court, S. D. Nuw York. December 31, 1889., L TOWAGB-STRANDING-IMPRUDENT START-INCOMPETENT HELMSMAN.
. The respondent bired the libelants' scows to be used in movin/r the Rockaway life-saving 8tation about two and a half miles to the eastward. along the beach. Tn coming out from the inlet into the open sea, the tug grounded on a falling tidehand. could not be got olf; and before the next tide the scows, with the house upon t em, haVing been anchored in the inlet, were driven by a storm on t,he ahore, and were lost. The start was made about 5 P. M., the water being smooth at the time; but the wind fOr some time' previous had been to the north-east, and there were other indications of a coming 8torm. The tug, incoming out of the inlet, the immediate charge of a helmsman who was not acquainted with the handling of tugs, had not to steer' her before that day. Held that, the navigation out , of the inlet witI/.. such a tow being l\ttended with .known difficulties, and with liability to stranding, it was negligence in the rellpondent's agents to start on the eve of an approacihing storm, which.would prevent'extricating the tow inoase of stranding; that. ,helmsman was iI\competent at the tjme of grounding; and that for ' both reasons the respondent was answerable for the loss·of the scows.
840 9. SAME-W
FEDERAL REPORTER, .OF . SEAWORTHINESB OF
vol. 40.
she sprang so as to sink in the sand, and not rise with the rising tide; thus preventing the possible e"trication of the stranded boats. The scow was sufficient for navigation in ordinary weather, and for the purposes for which it was let. Held., that the letting imported no warranty of her sUfficiency to withStand the stranding without leakage. '
In consequence of the 'pounding of one of the scoW's after they were driven ashore
Tow.
In Admiralty. Libels by Dewitt C. Bouker and George A. Bouker against Francis H. Smith, for wreckage. Wing, Sh01.tdy & Putnam, for libelants. ' Moore & Wallace, for respondent. BROWN,
J.
The above libels,werefiled by the owners of two scows,
to recover for their being wrecked through the alleged negligence of the
respondent while they were let out to him, and in his employ. The epondent had undertaken to remove the wooden building usel! as a lifesaving station on Far Rockaway beach, to a point about two and a half miles to the eastward, ,by the use of scows, on which the building was to be placed and transported. The libelants' boats were hired for this purpose in the early part of March, 1889. At the time of the agre6'" ment it was stated that it was desigl1edto transpon the through an inside passagej but liberty was reserved to go outside, in the open seal if the weather were calm and the sea smooth. The two scows were a,.ccordingly sent to Far Rockaway beach by the libelants, and there delivered to the respondent. They were taken a few hundred yards up Rockaway iulet, near to the station building, and the building was moved, and put upon, the two scows, and got .in readiness for transportationby the afternoon of the 14th. !thad been previously ascertained that the inside passage to the eastward· had become so obstructed as to make it unwise to attempt that course. The respondent had previously engaged the small tug-boat Kapella to take the scows with the building in tow by a hawser. The afternoon of the 14th was mild, the wind light, and the sea smooth; but the wind was to the north-eastward, and there were signs of a storm to be expected before !ong. After the tow should get out of the inlet, which was only a!few hundred yards in length, one or two hours would be a sufficient time to take the tow to Debbs' inlet, near its destination. .The respondent's agent in charge of the work, and the officers of the life-saving station, thought it advisable to make the trip that afternoon, at high water, which was from 4 to 5 o'clock; and the tug was accordingly sent for to come from Debbs' inlet, where it had been stationed. It arrived a little before 5 P. M., and proceeded to pull the tow by a hawser out of'Rockaway inlet. Before startin{l; Capt. Jaycox vigorously protested against starting at that time, on account of the signs of a coming storm, declaring that he would.take no responsibility for, the result. The general opinion of the other perthe respohdent's agent required him to prosons present being ceed: When two-thirds out of the irilet,after rounding one of the sharp curves of the channel, in crossihg the outer bar, outside of the line of
BOUKER tl. SMITH.
841
the beach, the Kapella grounded by the stem, the scows drifted past the tug, and hauled her somewhat about. But the tide was already falling, and the tug could not be got off, though she backed strong. After several vain attempts to get the scows back up the same inlet, it was found that the best that could be done was to anchor them there, and wait for the next high tide. During the night the wind increased, especially upon the flood-tide after midnight, when the scows were blown ashore, and one of them, pounding in the rising sea, began to leak. Between 1 and 2 o'clock A. M. they were abandoned by the respondent's men and those belonging to the life-saving service, who up to that time had been on board. The gale proved to be a severe one, and during the following day, in the pounding of the surf, the scows and the building upon them were brokeR apart. One of the scows was carri'3d a long dis.tance up tM beach to the westward, and all proved a total loss. The'respondent was not an insurer, nor a guarantor of the safety M the scows. In letting them out for this service, the libelants took the risk ofall sea perils, and· of all other dangers naturally incident to that service, except in so far as they might be brought about by the negligence and want of proper care and skill of the respondent or his agent, having reference to the nature of the enterprise. For such negligence, or want of due care, the respondent would be answerable; and the question here is whether the loss is fairly attributable to such negligence, or to other caUSes for ·which the respondent is not answerable. The immediate cause of the loss was the storm. The next Rntetior cause Was the grounding of the tug, in coming out of Rockaway inlet, in consequence of which the scows, with their burden, could not be taken to a place of safety. Had the tug n()t grounded, there being, as I think from the weight of evidence, plenty of water in Debbs' inlet, the trip might have been safely made before the storm came on, and before dark, provided that the tug had sufficient power to tow the scowsup Debbs' inlet against the ebb-tide after reaching it. Although a doubt is suggested on this point by Capt. Jaycox, there is no very satisfactory evidence on the stlbject. If the tug had not sufficient power to pull the tow up against the ebb, she would be obliged to wait outside in the open sea till the next flood"tide. That would involve such an unjustifiable exposure of· the tow as to make the respondent answerable for the result; because all agree that, before starting to leave Rockaway inlet. there were signs of an approaching north-east storm, and the tow was only fit for a calm sea. Assuming,however, that the entrance to Debbs' inlet might have been safely effected before dark, but for the grounding of the tug before she got out of Rockaway inlet, the grounding of the tug becomes the causa cuusans of the loss; and the question is whether this is or is not attributable to the negligence of the employes. On this point there is considerable testimony, but it fails to show satisfactorily why the tug should have run aground if properly handled. In fair weather and a calm sea, and in a buoyed channel, stranding presumably occurs only through lack of care of some kind. The burden of proof is upon the defendant to excuse it by'showing that it did not arise through any lack of care, skill, or diligence in