if an independent action against the libelant alone would not be maintainable upon the facts .:ted;neitlier.can,tbirfspecial defense, which is in reality a cross-demand, and the same as another action, be maintained in this case,rFor these tworeasons,therefote,viz.,that the contract was not pleaded, and that the facts stated do not constitute a cause of ,action I decliIlEltO,'consider the defense made upon the testImonyj' and! the libelant having established his demand, a decree .costs. willbe teU-dered in his favor for the sum . sued for,"-$205, -and ..... . " ..
(Oi:rcl#t cowrt. E. D.
ToWAGB-NBGLIGENCB OF TuG. ,
. tow aheavily loaded barge, Collided with It,the recausiD,g some of its· seams to ppen. and handled it in a reckless mabner, against
, Where at tug, in attaching to its
m Oll-strance of .the master, 9f. the barge, it is liable for the damages l'esulting there. , f rom.
PARDEE,J. This cause came on to be heard upon the transcript of record and the evidence; and was argued by Mr. Richard De Gray, proctor for libelant, and MI'. Charles S. Rice, proctor for claimant. Upon c<;msideration whereof the court finds, on undisputed evidence, that the barge, loaded with libelant'llbrick and lumber; did not leak before the tug Wood took:her in tow;' that the said barge took in water over the gunnels, and also began leaking after being taken in tow by the said tug; that the ,leaking of said barge was serious in character, hecause the barge ooritinued to settle in the water after being placed in still water at the wharf of the oil':company. And the c6urt finds by the preponderanceof evidence that when the tug Wood hitched onto the barge in Diamond Eddy there was a collision between the two, which probably resulted. in opening some of the Beams of the barge, causing the barge to leakj that the handling of the barge by the officers and crew of the tug Wood: wag, 'reckless, and unnecessarily exposed the barge to danger, particularly if it be tFue, as stated by them, that the barge was overloaded; that the master ·of the said tug exhibited reckless obstinacy in refusing to land-the barge at' the originally intended; and that the said barge was not overloaded. Wherefore it is ordered, adjudged, and decreed that the libelantrO. V.Wagner, do have and recover from the Charlie Wood Transportation Company, claimant and owner of the tug W. M.Wood, and from:P. M. Schn'eidau, surety on the release bond, en solido, the sum of $594;75 damages, and all costs of the district and circuit courts tc:>be taxed, for whichqexe<)ution may issue in five days after the final signing of this decree." " "
(DfBt7ict COurt, E. D. New York.
CoLLIIlION-A'1"l'IIlJlPl' TO PASS VEIlSEL AHEAD-NEGLIGENT' SHEER.
The steam-boat M., going at night with a strong flood-tide up the East river, overtook two Ilteam.boats, 801110 going np stream. When in a narrow part of the river, the steam-boats ahead gave two Whistles, and stopped to await· the passing of the tug I., which, with a car-float along-side, was coming down stream near the Brooklyn shore. The ltI., witbout stopping, ported; around the boats:ahead, and· discovered· the tng and car-float;· 80 near that it was lmpossible.to escape collision. BeZd, that the cause of the collision was the improper sheer 01 the ltI.. nnder the stern of the boats ahead.
In Admiralty. The steam-boat at I1ight with a strong flood-tide up the East river; overtook two steam"boats, also going up stream. When about off Ninth or Tenth streets, New York, in a nanow part of the river, the steam-boats ahead gave two whistles, and stopped to await the passing of the tug Intrepid, which, with a car-float along-side, was cqming down stream near the Brooklyn shore. The Morrisiana, without stopping, ported, to pass around the boats ahead, and discovered the tug and carfloat so near that it was impossible to escape collision. Wing, SlunMly &- Putnam, for claimant. George A. Black, for libelant. BENEDICT, J. In my opinion the cause of the collision whicp.,gave rise to this action was a sudden sheer of the taken under the stern of the ferry-boat ahead of her, and when. the Intrepid was so near .that it was impossible to escape cpHision. An effort bas been made to locate the pla,ce of this sheer at a great distance from the ferry-boat, but the effort has failed. It is impossible for the Morrisiana, in my opinion, to escape the effect, of the sworn statement of Capt. Geer, her master, made the next day after the CQllision, wherein he says: "When within about a hundred feet of the stem of the ferry-boat, weporled our helm. As we passed. the stem oftheJe,rryboat, we discovered the tow." The libel m\1st be dismissed, with costs.
. . ".
G.Benedict,J!lsq., of the New York bar; .,