888
FEDERAL REPORTER.
And this practice seems to be approved by Curtis, J., in the case of The Enterprise, 2 Curt. 817, 819. Such an amendment could not, however, be aJ.lowed in cases whEJre, under the admiralty rules, both remedies could not be conjoined in the same libel, (The Zodiac, 5 FED. REP. 220, 228;) nor where the subject-matter of the original libel is wholly beyond the jurisdiction of the admiralty. The S. q. [ves, Newb. 205, 214; Ward v. Thomplion, ld. 95; 22 How. 880. The practice above indicated by Judge Betts is not inharmonious with the decisions in the cases of The Hope and The Volant, above cited. It does not permit judgment in personam upon a mere citation in rem, but it permits an amendment to the libel by adding a prayer for judgment against a contesting owner, and it preserves the proofs already taken for subsequent use in the cause. This m1ty often be a consideration of great importance to the parties, and should lead the court to preserve this practice in cases where circumstances make it desirable. This libel should, therefore, be dismissed as against the vessel, but without costs, as the objection to the want of any lien should have been taken 'at the outset of the action, (Wms. & Br. Adm. Pro 67,) and the sureties upon the bond given upon her release should be discharged; but without prejudice to any by the libellant, within 10 days, to amend the libel by prayingj'udgment against the owner, who has heretofore appeared and answered herein, and for the usual citation against him; and after due service thereof, or his voluntary appearance, the cause to be heard upon the proofs already taken, and such additional proofs as either party may desire to add. See The Alida, post, 343.
THE MILLIGAN.THE BRAZIL.-
.District Oourt, B. D. penrMlIlfJania. February 17, 1882.) ADMIRALTY:-:COLLIBION-ANCHORING IN CHANNEL-MuTUAL FAULT.
A sloop anchored I).ear the range of range lights, and in a narrow channel, leaving only about 80 .feet' for passing vessels. A bark, in tow of a tug, while endeavoring' tb pass, collided with the sloop. Held, that the sloop was negligent in anchOring in the channel, but that, as it appeared that the bark could have pasaed,in s3fetyby the exercise of proper care, the damages should be equally divided. *Reported by P. Pricbard. Esq., of tbe Pblladelphia bar.
THE HILLIGAN.
339
Two libels by the owner of the sloop Na.nticoke-one against the bark Milligan and the other against the tug Brazil-to recover damages for injury by collision. The testimony disclosed the following. facts: On March 8, 1881, the sloop was bound up the Delaware river, and when Ilear Chester, the tide being ebb and the wind having died out, she came to anchor in a narrow channel and close to the range of the range lights. While she was in this position the tug Brazil, having in tow by a hawser the bark Milligan, came down the river. The tug passed safely to the eastward, but the bark collided with the sloop, causing the damage for which these libels were filed. The witnesses for libellant testified that the sloop was compelled account of the failure of the wind; that she was to anchor at this point not in the centre of the channel, but a little to the westward; that the channel was 300 or 400 yards wide; and that the collision was caused by the bad steering of the pilot in charge of the b,ark in not shaping his course until within a short distance of the sloop. The testimony of respondents' witnesses was to the effect the channel was not over 150 feet wide for large vessels; that the sloop was directly in the centre of it; that she had been previously warned, from a passing vessel, to change her position; that such change could readily have been made by drifting with the tide 500 feet further down; that from the time the sloop first came in sight the collision was inevitable, owing to the size of the channel and the position of the sloop. The court propounded certain interrogatories to nautical assessors, thereto, were as follows: which, with the
First. Was the anchorage selected by the sloop Nanticoke-very ,near the centre of the channel at " Schooner Ledge Shoals"-a safe and proper. one? Could she have safely floated back towards the side of the channel below, when the tide changed? Answer. The anchorage selected by the sloop, as stated in this interrogatory, was neither a llafe nor proper one to make, as her position in such a narrow channel would make it difficult for vessels to pass with safety, and extremely so for' those of heavy draught, such as our European steamers and vessels of that class. ' When the tide commenced to run she could have tripped her anchor and drok'ped below or into shallow water, where she would have been safe and out ol the way of passing vessels. Second. Supposing the sloop to have beeen a little to one side of the centre of the channel, westward, leaving 80 feet clear, eastward, should the tug and bark have passed safely? If you answer they should, please read the testimony of the pilot and master in charge, and say wherein they failed in care and duty, I enclose this testimony. Answer. A passage of 80 feet, to the eastward of the sloop, allowed ample room for the tug and bal'kto passin safety, if the proper careilindjudgment were used that is necessary in navigating such channels.
34:0
The testimony of the pilot and master in charge of the bark shows a want of proper care and judgment in not deciding and shaping her course to the eastward before getting to within 75 or 100 feet of the sloop, although she was seen when a half a mile or more away.
J. WaT1'en Coulston, for the Nanticoke. C. Gibbons, Jr., for the Milligan. Henry Flanders, for the Bra.zil.
BUTLER, D. J. These cases arise out of one transaction,-involve the same facts,-and will be disposed of together. That each party was in fault, I have no doubt-the sloop for lying at anchor where she did, the bark and tug for failing to keep off. While the sloop was not lying upon the range of lights, she was dangerously near it,subjecting passing vessels to the exercise of unusual care. The position was not forced upon her; she might have anchored lower down, (before reaching it, or by floating back when the tide turned.) She would thus have been out of the way, and' out, of danger. Her anchorage so near the centre of a narrow ch!tnnel was inexcusable. The suggestion that she could not hack,-that 'the absence of wind' rendered her helpless,-is unsupported by the facts, and' entitled to no Her fault in this respect, however, does not excuse the tug and bark, for running into h,er. They had ample room, with the observance of proper caution, to pass in ably on either side, certainly to the eastward. 'The exact width of the channel cannot be ascertained from, the, testimony; none of the witnesses know it. Those called ,by the sloop suppose it to' be 300 or ,400 feet, while those called by the other side'suppose it to be about 150 feet. The statements of, t4cse witnesses' show that they are simply guessing. While the aCtual width is: dou1:ltless greater, we may safely assume it, to be 150 feet. As, bef9re sta.,ted;.'the'sloop was slightly off the centre, westward; leaving at ,least 80 feet.,clear. That this space was amply sufficient, with the exercise of proper care, toadfuit of safe passage, would seem to be j;Ha:il1;arid' IS Bostated by the assessors, (whose answers are attached':r' The collision was, result of carelessnel:\s, onbcith sides. Tha,t the sloop was at anchor may possibly ,not hall'e been, discoverable at any great distance. It was known, however, that she was virtua.lly beca.lmed and motionless, from the time she came in view. 'That there was not 'Wind sufficient to propel her the witnesses all agree: 'fhe answers of the assessors render it unnecessary to' say more.' Half da.mages, and half oosts will be allowed by the libella.nt, in each case.
BARK SAN FERNANDO V. JAOKSON.
BARK SAN FERNANDO V. JAOKSON
&
MANSON.-
(Circuit Oourt, E. D. Louisiana. Marehla,1882.) 1. ADMIRALTY JURISDICTION.
Admiralty courts have jurisdiction in all cases of maritime obligations. Ins. Co. v. Dunham, 11 Wall. 1. 2. GENERAL AVERAGE.
General average comes under the head of maritime obligations, and in sucb a case, wbere tbe consignee bas received his goods and given a general average bond, the United States admiralty court has jurisdiction of an action upon such bond, notwithstanding the opinion of the supreme court of tbe United States in Outle:r v. Rae, 7 How. 729, undertbe authority of tbe lattJ decision of that tribunal.
Admiralty Appeal. George L. Bright, for Thos. Gilnwre t1 Sons, for defendants. . PARDJiJE, C; J. This suit is brought by a libel in to cover the share due by defendants in a case of general average. record shows a proper case for general average, and that on the arrival of the hark this port the cargo delivered on an average bond. The only questions raised in the case ai'e f (1) As to _ the jurisdiction of the court; and (2) as to the amounfdue. Ihave held the case for some for consideration of the question of jurisdiction. Since the. decision in Ina. 00. v. Dunham, 11 Wall. 1, there seems to be no doubt that the admiralty courts have in all cases of maritime obligations. And that general average comes under the head of maritimeobligationl:! there 'cannot be muyu tion. In fact, ther<ds no doubt that the claim for general avera;ge is a lien enforcea.ble in' admiralty on the cargo saved until the. delivery of the and the teal question is 'whether thejurisdi'ction remains after the lien is lost by delivery,_ sO.that the claim, ¥lay be enforced in persOnam against"tqe eonsignees.' , The obligation of the cargo'io'contHbute,ina proper ca,se,of genbound, eral average, IS a m{ttit'it?-e obligatidn}or .which the but not the When the <largo is delivered 'there is :m implied obligation; ot,'if a bond is 'taken; an express obligation, Oil the part of theconsignees' to Qonti-ibiite thesbare' due by the cargo 80 received by them. Is this ilist oblig'ation a maritime obligatiim?
at
*Rcported by Joseph P.Hornor, Esq., of the New Orleans bar.,