and negligencein the towing, whereby an injury was done to the canal· boat and her cargo; and it claimed damages for the loss sustained. Mr. Justice DAVIS, speaking for the court, in the course of his opinion said:
"The libel was not filed to recover damages for a breach of a contract, as is conteuded, but to obtain compensation for the commission of a tort. It is true, it asserts a contract of towage, but this done by way of inducement to the real grievance complained of, which is the wrong suffered by the libelant in the destruction of his boat by the carelessness and mismanagement of the captain of the Quickstep."
The claims, then, being ex delicto and not ex contractu, they have a higher rank, and should be paid before the claims for repairs and supplies. I think this is a settled doctrine in the American as well as the English admiralty, notwithstanding some recent attempts to call it in question. In Abb. Shipp. 533, (10th Eng. Ed.,) it is said:
"The maritime lien of damages, originating in the wrong of the master and crew of the vessel in fault, and founded on considerations of piIblic policy for the prevention of careless navigation, takes precedence * * * of liens em contractn. It absorbs, in the event of the res proving insufficient to meet all demands, the liens of wages, towage, pilotage, and bottomry, leaving them to be enforced by proceedings against the person of the owners."
And such, I understand, is the opinion of the supreme court in Norwich Co. v. Wright, 13 Wall. 122, where, speaking of claims for damages, it is said that "liens for reparation for wrong done are superior to any prior liens for money borrowed, wages, pilotage," etc. A decree must he entered for the payment of these damages in full, and costs. The remaining claims are for supplies and repairs, and as these all st<1nd in the same grade, though lower than the claims for salvage and for a tort, they are entitled to share pro rata the residue of the fund in the registry.
THE PRES. BRIARLy. l DOUGLAS
THE PRES. BRIARLy.l
(VircuitOourt, E. D. Louisiana. June 10, 1884.)
1. Tow-BOAT AND Tows. H is the duty of a tow-hoat to see that her" tow" is properly made up, and secured with lines of proper strengUI. 2. SA)IE. If a person, in charge of one of the bHl'ges which make up a tow, throw off the lines without authority of the master of the tow-boat, and damage ensue, to that extent the Large is in fault.
lReported by Joseph 'P. Hornor, Esq., ofthe New Orleans bar.
THE PRES. BRlARLY.
her, and that abandonment contributed maLerially to the loss of the barge, it was negligence and fault on the part of the l.>arge.
If a man, in charge of a barge that has broken loose from a .. tow" abandon
Admiralty Appeal. Action for loss of a barge against a tow-boat towing same; barge having broken loose from tow-boat, and afterwards sinking by coming into collision with same. W. S. Benedict and Richard De Gray, for libelant. A. B. Philips and A. G. Brice, for claimants. PARDEE, J. The evidence leaves no doubt that the tug was in fault in several important particulars, to-wit: (1) In not seeing that the tow was properly made up, and secured with lines of proper strength. Half-inch lines, even new, are not sufficient for the securing together of large barges to be towed in the Mississippi river. See The Quickstep, 9 Wall. 665. (2) In not securing the "cabbage" barge with a line from the tug before undertaking to back the tow up the Mississippi river. (3) In not keeping clear of the "cabbage" barge after the same had broken"loose from the tow, but, on the contrary, colliding with her, causing the injuries from which she was filled with water and her cargo lost. The answer of claimants goes no further than a general denial of fault on the part of the tug, except that fault is alleged on the part of libelant as follows:
"But the truth is that the carelessness lies on the officer in charge of said barge, who unloosened the rope that was attached to said cabbage-barge stern, which was attached to the potato barge that said tug had in tow; that he took upon himself to loosen said line without any orders, causing the front line, which was a rotten line belonging to said barge, to break loose from the potato barge; that he never made any attempt to take a skiff to secure the said barge that he had caused to drift."
There can be no doubt that, notwithstanding the precarious and shiftless way in which the two barges were lashed together, and to the tug, the difficulty in handling the tow, resulting in the breaking loose of the "cabbage" barge, and her subsequent collision ancl loss, commenced with the throwing off of the new line-bed-cord-which lashecl the sterns of the two boats together. This line was thrown off by the man in charge of the cabbage barge, who abandoned his own boat to accomplish the feat, and the separation of the boats followed so quick as to prevent his return to his own boat. 1' 11e libel alleges that this line ,:as thrown off at tho order of the master of the tug, with the intention of placing the tug between the two barges. The master of the tug denies explicitly giving any such order, and swears to no intimtion, expressed or implied, to place the tug between the two barges. The evidence as to such order on the part of the libelant is the testimony of the man in charge of the cabbage boat, which is too conflicting and confused to be very reliable. In his examination in chief he states that he threw off the line because the master
of the tug ordered him to do so. follows:
On cross-examination he says as
"Qnestion. You say you let this line loose? Answer. When the tug- Q. Just answer my question and nothing more; you have a right, after you answer my question, to make any explanation you wish. Now, what made you let go that line that ran from the potato boat to the cabbage boat? A. I did not want it on there when his line was on it. Q. You <lid not want it there, you say? A. It would have done no good. It was across the tug. What good would it do there? It was not fastened to the tug, and I took the line and threw it off. Q. You had received no orders from the captain of the tug to Jet it loose? A. I don't know that the captain told me to let it loose."
Three days after, on being recalled, he answers to about the same effect. The fact is now conceded that the tug was not placed between the barges, whatever intention the master may have had; and it is clear, from all the testimony on the point, that at the time the line was cast off the master of the tug was 100 feet away, at the bow of the potato boat, looking after the fastenings of a head-line from the tug to the bow of the potato boat. I am satisfied that the man in charge of the cabbage barge threw off the line without authority, and to that extent the barge was in fault. See Dutton v. The Express, 3 Cliff. 462. It also seems to me that, though not pleaded, the court shotlld notice that the abandonment of the cabbage barge by the man in charge was negligent and faulty, and contributed materially to the loss of the barge; at least, to render fruitless efforts to prevent loss. The exceptions and objections to the commissioner's report as to the amount of the damage are not well taken. The commissioner has given the lowest award compatible with the evidence; in fact, if he had been more liberal the court would not have interfered. As both parties were in fault contributing to the loss, the damages, under admiralty rules, must be divided. Let a decree be entered in favor of the libelant for one-half of the damages reported by the commissioner, to-wit, for the sum of $545.75, with 5 per cent. interest from January 15, 1885, and condemning claimant and his surety on the release-bond to pay the same. The costs of the district court, and for all evidence of claiman t offered in this court and not in the district court, to be paid by claimant. The remaining costs of this court, with costs of the transcript of the record for appeal, to be paid by libelant.
THE THOMAS FLETCHER. THE THOMAS FLETCHER.1 Ross v. THE THOMAS FLETCHER, etc. 1
(Oircuit Court, S. D. Georgia. November, 1884.)
CosTs-REV. ST. § 750-REcORDS IN ADMIRALTY ApPEALS. The final record in cases of admiralty appeals must be such as is required by section 750 of the Revised Statutes of the United States, including the" process, pleadings, and decrees," and such record must correspond with the" judg. ment record" of the common law.
Admiralty Appeal. On exception of clerk to report of referees on m.otion to retax costs. Marion Erwin, for the clerk. Hayward c/; Johnson and Garrard d; Meldrim, contra. PARDEE, J. In equity and admiralty causes, "the process, pleadings, and decree" "shall be entered upon the final record," together with "such orders and memorandums as may be necessary to show the jurisdiction of the court and the regularity of the proceedings." Section 750, Rev. St. Said section applies as well to the circuit as to the district court; it is included in chapter 12 of the Revised Statutes, entitled "Provisions common to more than one court or judge," and the record therein prescribed is referred to in section 698, Rev. St., in a way that shows that it does apply to the circuit court. The "Transcript" sent up from. the district court, when filed in the circuit court, becomes and is a part of the proceedings in the circuit court; and as it contains the "libel," the "process," and the "pleadings" in the cause, without which the final record in the circuit court would not "show the jurisdiction of the court, and the regularity of the proceedings," it would seem such pleadings and process must be recorded, by the express provisions of section 750, Rev. St. The referees, in their finding on this point, take the view that as the process and pleadings contained in the "Transcript" were recorded in the court below, there is no necessity for the same to be recorded in the circuit court; and, viewing the matter from the standpoint of economy, they ayoid the provisions of section 750, Rev. St., by interpolating into it the words "originating in said court," so as to make it read, by intendment, "In equity and admiralty causes (pending in any court) only the process, pleadings, and decree, (originating in said court,) etc., shall be entered on the final record." It is clear that no such meaning can be fairly inferred from the words of the statute itself, and the idea of reducing costs is all that can be urged in favor of such a construction. Admiralty causes do not come up to the circuit court as a court of error, but of appeal, and the proceedings are had in the circuit court as if the cause proceeded de novo; the process and pleadings of the
by Joseph P. Hornor, Esq., of the New Orleans bar.