199 F. 109 | 7th Cir. | 1912
(after stating the facts as above). [1] 1. We are entirely satisfied that the decision appealed from is fully supported by the evidence, and should not be disturbed, so far as the liability of the city is concerned. The ledge was a dangerous obstruction to navigation. Easily remedied by the maintenance of piles, it was the duty of the city to put them there, and there keep them. Failure to do this was negligence, the proximate cause of the injury. The bridge itself was an obstruction to navigation, permitted only to serve the convenience of commerce on land. Clearly it was the duty of the city to make it as safe as was reasonably possible. Clement v. Metropolitan West Side El. R. Co., 123 Fed. 271, 59 C. C. A. 289, and Vessel Owners’ Towing Co. v. Wilson, 63 Fed. 626, 11 C. C. A. 366, both in this circuit; Great Takes Towing Co. v. Kelley Island L. & T. Co., 176 Fed. 492, 100 C. C. A. 108, Fourth Circuit; The Nonpariei (D. C.) 149 Fed. 521. The case of Kelley Island T. & T. Co. v. Cleveland (D. C.) 144 Fed. 207, followed in Munroe v. Chicago (D. C.) 186 Fed. 564, was reversed on appeal, and a decree ordered against both the city and the towing company. 176 Fed. 492, 100 C. C. A. 108, supra.
“The principle seems to be that in such a case the costs will be taxed against the party who renders it necessary that such costs and expenses should be incurred. This seems to be an equitable principle. Applying it to*112 the instant case, the libelant was solely responsible for the costs and expenses incurred by the tug company.. It brought such company into litigation and failed to maintain its contention against it. Why should it not reimburse the innocent party, whom it has brought in and compelled to incur these costs and expenses? Certainly the city of Milwaukee had no responsibility in the premises as between it and the tug company. The costs and expenses of the tug company were largely incurred before the city of Milwaukee was brought into the case, and there would seem to be no equitable ground upon which these costs should be taxed against the city of Milwaukee.
“There is another equitable feature which must not be lost sight of. The libelant, having failed to establish its contention against the tug company, would have gone out of court with empty hands and liable for a full bill of costs in favor of the tug company, had not the tug company caused the city of Milwaukee to be brought in by its petition under the fifty-ninth rule. The tug company was thus instrumental in rendering the libelant’s recovery possible. It seems, therefore, only fair that the libelant should be held responsible for the costs and expenses of the tug company.
“In .admiralty, as in equity, the prevailing party is generally entitled to costs; ■ but they do not necessarily follow the decree, and are always in the exercise of a sound discretion, to be allowed, withheld, or divided according to the equities of the case.”
The court properly applied the general rules governing such cases, and the decree should be affirmed on both appeals.
Affirmed.
