FEDERAL REPORTER. and not otherWise comply with the admiralty rule above cited. SinCe itCQntaiped a prayer for wages only, a matter ofwhich, by \'irtueof the terms of the treaty,' the Italian consul had exclusive jurisdiction t the rule must be d i s c h a r g e d . ' '
THE GALILEO.1 THE EDGAR BAXTER. ,; RmDF..MANN and others
THE GALILEO and another.
OO'Url, 8. D. New York. October 12,1886;)
ADMmALTY-DISTINCTION BETWEEN APPEALS AND WRITS OF ERROR.
In suits against joint tort·feasors, if the defendants answer severally and not jointly, thei,r interests, are severed, and, if a judgment'be recovered against one, he may sue 'out a writ of error without joining the other defendant. The writ ofljrrOf, is, in effect, the foundation of a new suit; and the Ol1-ly questions brought' up for review are those arising between the person who takes out the writ and the opposite par!1.' because the party who is not joined in the writ is no longer in, the case. ;'l'his is 'not so, in admiralty, when the appeal suspends the operation of the decree, and brings up the whole cause for a new hearing. The appellant alone can be heard in support of the appeal, but all parties interested in supporting the decree appealed from are entitled to,be heard.
·· S.um-DECBEEON APPEAL.
The libelants proceeded'against two vessels for damages by collision. The district court dIsmissed the libel, with costs, as to one, and awarded the libelants their whole damages, with costs, against the other. An appeal was taken by the,latter vessel, and also by the libelants. The libelants subse· quently a.bandoned their appeal. Upon the hearing in the circuit court all partiesappeared,and litigated the cause. The decree of the district court was fault. Held, ,that although the libelants w;ere in the, positioll ofnot having appealed, they were entitled to a decree agaInst both vessels, such a decree beIng necessary to protect the ap· pellant and do full justice between all parties; but that the libelants were not entitled to costs of the circuit court. '
COLLISION-,APPEALS-LIBEJ,ANTS NOT JOINING IN ApPEAI.--FORM OF DEOREIll.
When, in a cause of collision, a libel against two vessels has been missed as to one and sustained as to the other. and if therefrom the latter alone appeale,"the libelants, though not appealing, will be entitled to the same though not to costs. form of decree. asif they
28 Fed. Rep.' 4:69.' , H. Putnam, i , Owtm Gray, for .the EdgarBaxter. E,. a. Henders0r" and
Admiralty." ¥qtion,for decr,ee and costs.
For opinion of court, Sea
WALLAClll,J. 'Upon the settlement .of the decree cause,. the fact was first brought to the attention the court that the appeal which
lReported by Theodore M. Etting, Esq., oftbe Philadelphia bar.
had. by the libelants from the' decree of the district court had heen and abandoned, lI.Ild therefore, at the·time of the hearingin this the were in the position ofnot having appealed ,from the decree. The libel was filed against the tug Baxter and the steam-ship Galileo, jointly, to recover damages.:to the bark of the libelants for a collision alleged to have been produced by the negligence of both the Baxter and the Galileo. Separate answers were interposed, each vessel;denying negligence on its own part, and asserting negligence on the part of the other. The district court exonerated the Baxter, and pronoullced the Galileo solely responsible. The decree dismissed the libel as to the Baxter, with costs; and awarded the libelants their whole damages against the Galileo, with costs. The Galileo appealed from this decree, and so did the libelants; but, as now appears, the latter abandoned their appeal. Upon the hearing in this court the owners of the Baxter as well as the libelants appeared, and litigated the cause. This court reversed the decree of the district court, and pronounced both vessels in fault. If the libelants had appealed, they would have been entitled to a decree in the form approved in The Alabama, 92 U. S. E>95; that is, to a primary award against each.vessel of a moiety only of the libelants' damages, with interest and costs, and a further award against each vessel of such part of the moiety of the other as the libelants might be unable to collect of the latter. But.the point is now taken in behalf of the Baxter that, as the libelants 'did not appeal from the decree of the court below dismissing the libel as to her, they cannot be heard, except iii. support of the decree, and can have no decree against her in this court; and it is insisted for the Galileo that, if there can be no recovery for the libelants as against the Baxter, they should not recover against the Galileo more than a moiety of their damages. It is familiar law that a party who does not appeal cannot be heard upon the appeal, except in Iilupportof the decree below. This is the rule, not only in admiralty, ,but also in equity. In suits at law against joint 'tort-feasors, when the defendants answer severally, and not jointly, their interests, are severed, and, if a judgment is recovered against one only, he may sue out a writ of error without joining the other defendant. Thomaa v. Lane, 2 SQm. 1; Cox v. U. S., E> Pet. 172. In such case, the only parties in the appellate court are the one who takes the writ of error ana the opposite party. The writ of error is a new suit in effect, and of course the only qnestions brought up for review are those arising between these parties only, because the party who is not joined in the writ of error is no longer in the case. This is not .so, however, in admiralty or in equity, where the appeal suspends the operation of the decree oelow, and brings up the whole cause for a new hearing. Although a writ of error has been brought from a judgment at law, the judgment is nevertheless a bar and estoppel until reversed. In equity, however, the decree does not have this effect, when an appeal has been taken. See Sharon v. Hill, 2E> Fed. Rep. 337, 345. In suits in equity the real' controversy is often between, parties who
'have as defendants,'rather than as betweeneither of them .and the plaintiff. An appeal 'by one defendant brings up the whole controversy, so far as it affects him, and all parties interested in supporting the decree appealed from are entitled to be heard, although no party'except the appellant can be' heard in support of the appeal; and, if tbe decree is affirmed,these parties are entitled to costs as against the appellant. Ina case where the plaintiff's bill was filed against two de- . fendants, who separately claimed the same property. and, the plaintiff having obtained a decree, one defendant appealed, the court, being of opinion that the other defendll;nt,was entitled to the property, dismissed the bill on the appeal, as againstboth defendants. Vaughan v. Halliday, L. R. 9 Cb. App. 561; Kent v,Freehold Land &: Brick-making (h., L. R. 3 Ch. App. 493. In the present case the libelants could have proceeded against either vessel, and recovered their whole damages, notwithstanding it might have appeared that the collision was produced by the contributing negligence of both. The Atlas, 93 U. S. 303. It was to obviate the hardship of compelling one vessel to pay the whole damages for a collision in which another vessel, not sued, was equally guilty with the vessel . sued, that led to the adoption of supreme court rule 59, (112 U. S. 743,) by which the claimants of the vessel sued can require another vessel, which contributed to the same collision, to be proceeded against in the same suit. The o'bject of this rule is to prevent l:t libelant from pursuing one vessel alone, when two are equally responsible for the damages Gaused by a collision, and to require both, at the option of either, to be -brought in, that a decree for a moiety of the damages may be made against each, when such a decree will fully protect the libelant. The party most interested insupporling the decree oHhe district court was the Baxter. Her owners were entitled to be heard in support of it on the appeal, and they were hearq.'. If their present contention is correct, either the Galileo bas appealed in vain, because,although she ought 'to be held responsible primarily only for a moiety of the damages, she Iriust now beheld for the whole, or'the libelants, wbohad no reason to be dissatisfied with the decree of the district court, inasmuch as they were awarded their whole damages against the Galileo, must lose a moiety of the damages; because they did not appeal, and further litigate the cause for the ben'efit of the Galileo. The statement of such a proposition is its answer. The decree will follow the form approved in The Alabama. The libelarts are entitled to the costs of the district court, but not to the costs of this court; and the Galileo is entitled to the costs of this court against the Baxter. .
BALL V. BDRWIND.1 LUOKENBACK
E.]). New York. May 27, 1886.)
CoLLISION-SWKEN AND,AJJANDONED WRECK-LIAJJILITY OF FORllER OWNElt.
The canal-boat Eureka No.5, owned by defendants, was sunk in NewY,ork harbor: through no fault of 'her owners, and was abandoned. Libelants' boats thlueafter were damaged, by, running upon the wreck. Held, on suit brought the former of the wreck. that tJ:ey were not liable, !'1though theyhll.d afterwards removed the wreck, on bemgnotified by the pllot commissioDers to do so.
N. Y. 1860. CR. 522. Chapter 522 of the Laws of New York of 1860 provides that, after notification
AND'WATER-COURSES-DUTY OF OWNER TO REMOVE WRECK.....LAWS
from the pilot commissioners to the former owner of a wreck to remove it, if the owner fails to do so, he shall-be liable to pay to the county any sum that the pilot commissioners may have expended in their removal of the wreck; but the law does not create a duty on the part of the owner to remove the wreck.
In Admiralty. Butler, Stillman re Hubbard, for libelants. Beebe re Wilcox, for defendants.
BENEDIOT, J. These actions are brought to recover from the defendants the damage caused to the vessels of the libelants by running upon the ,wreck of the, Eureka No.5, a vessel which, while owned ,by 'the defendants, and through no fault of theirs, had been Bunken in the harbor of New York, and thereupon abandoned by tllem. In,view of the adjudged cases, (King Watts, 2 Esp. 675; White v; Crisp, 10 Exch. 812; Brown v. Mallet,t, 5 C. B. 599; Hancock v. York, N. O. et B. R. 00.,10 C. B. 348;, Taylor v. Atlantic Mut. Ins. Co., 37 N. Y. 279; Winpenny v. Philadelphia, 65 Pa. St. 135; Philadelphia W. re B. R. 00. v. Philadelphia ct H. de G. St. Tow.boat 00.,23 How. 209,) the only ,question that seems open for discussion in this case is whether the statute of the state of New York (Laws 1860, c. 522) created a dut;yupon the part of the defendants to reo move the. Bunken canal.boat from the channel, which duty they failed to discharge, and thereby caused the injury of which libellJ.nt.complains. Upon this question my opinion is with the defendants. The defendants did not obstruct or interrupt the navigation of the port. for the boat was not sunk by any fault or neglect of theirs. When. through. fault of theirs, their boat was sunk, and thereby rendered of no value, they had the right to abandon the possession and contr.ol right they had exercised, and in this way they had their responsibility for the boat before the injury oom-
by R. D.&Wyllys Behedict, Esqs" of the' New York bar.