73 F. 226 | 9th Cir. | 1896
Lead Opinion
The motion to dismiss the appeal is first to he disposed of. The contention in support of this motion, which was sustained by this court on the former hearing of this cause, is based upon the theory that the decree entered in the court below is a joint decree, in which all of the respondents there have a common interest, and that, as two of them, namely, William Boyce and Anna C. Larson, did not join in the apx>eal, and no request was made of them to join therein, and no order of severance was made by the court below, and no notice of appeal was served on them, the appeal must he dismissed.
By the amendatory act of congress of June 19, 1886 (24 Stat. 79, 80), the provisions of what is commonly known as the “Limited Liability Act,” originally enacted March 3, 1851 (9 Stat. 635), and the provisions of which have been substantially incorporated into Rev. St. §§ 4282-4290, are made applicable to all vessels used on lakes, rivers, or in inland navigation, including canal boats, barges, and lighters. Sections 4283 and 4284 of the Revised Statutes are as follows:
“Sec. 4283. The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing', lost (loss), damage, or forfeiture, done, occasioned, or incurred, without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.
“Sec. 4284. Whenever any such embezzlement, loss or destruction is suffered by several freighters or owners of goods, wares, merchandise, or any property whatever, on the same voyage, and the whole value of the vessel, and her freight for the voyage, is not sufficient to make compensation to each of 1hem, they shall receive compensation from the owner of the vessel in proportion to their respective losses; and for that purpose the freighters and (owner) (owners) ol' the property, and the owner of the vessel, or any of them, may take the appropriate proceedings in any court, for the purpose of apportioning the sum for which the owner of the vessel may be liable among the parties entitled thereto."
To facilitate and further the proceedings authorized by the act of March 3, 1851, the supreme court promulgated certain supplemental rules of practice in admiralty, numbered, respectively, 54, 55, 56, and 57, which are found in 13 Wall, xii., xiii., and the validity of
They commenced the proceedings by the filing in the district court for the district of Oregon of a petition by the Oregon Railway & Navigation Company and the Oregon Short Line & Utah Northern Railway Company, which set forth, among other things, the ownership by the Oregon Railway & Navigation Company of a certain barge known as the Columbia, used and operated upon the Columbia and Willamette rivers, and that the Oregon Short Line & Utah Northern Railway Company is engaged in operating steamboats and other vessels, and in owning and operating lighters and barges between Portland and Astoria, in the state of Oregon, and elsewhere, and during the times mentioned in the petition was lessee, from the Oregon Railway & Navigation Company, for a period of 99 years, from the 1st day of January, 1887, of the barge Columbia, and was at all the times mentioned in the petition operating that barge under the terms and provisions of the lease, and had the sole possession and control thereof; that on or about October 21, 1892, the barge Columbia left Portland with a cargo of wheat, for transportation to Astoria, the wheat being part of the cargo of the British ship Westgate, and destined to be transported by means of the barge Columbia and the ship West-gate from Portland, Or., to Liverpool, England; that the barge was seaworthy, and that the wheat was properly loaded thereon, and that all went well until the barge, on the night of the 21st of October, 1892, reached Astoria, at which point the barge intended to tie up alongside the dock of the Oregon Railway & Navigation Company; that, lying in front of the dock, and floating nearly level with the water, and designed for the purpose of preventing ships from chafing against the timbers of the dock, was a pontoon, consisting of 12x12-inch timbers, securely fastened together, and being 60 feet long, 1 foot thick, and 4 feet wide; that the barge was towed by the steamboat Ocklahama, and that the darkness of the night rendered it impossible for the crew and captain in charge of the Columbia to see the pontoon, and, in attempting to make a landing at the dock, the barge ran against the pontoon with sufficient force to break the stem and forefoot of the barge, and to start her timbers to such an extent that she commenced leaking; that those in charge of the barge deemed it necessary and advisable to remove her into shallower water, in order that the barge and her cargo might be more conveniently saved, and thereupon the barge was taken behind the dock, and placed alongside the rear portion thereof; that, after an examination had been made by the men in charge of the barge, it was found that she would probably float if the pumps were used, and thereupon the men in charge of her commenced using the pumps, and kept the leak
The petition further alleged, among other things, that the barge was, at the time of the accident, under the sole and exclusive manage-, ment, operation, and control of the Oregon Short Line & Utah Northern Railway Company, and that none of the men on board of the barge were officers, agents, or employés of the Oregon Railway <& Navigation Company;.that the cargo of wheat belonging to Balfour, Guthrie & Co. was being carried by the Oregon Short Line & Utah Northern Railway Company under and by virtue of a bill of lading or shipping receipt issued by that company, and was not being carried, handled, or controlled in any manner by the Oregon Railway & Navigation Company. And the Oregon Short Line & Utah Northern Railway Company allege that the barge was in all respects sound, staunch, and seaworthy, and was properly manned, equipped, and provided for the voyage in which she was engaged, and under the charge and management of proper and suitable officers; that the captain of the barge executed to Balfour, Guthrie & Co. a shipping receipt or bill of lading for the wheat carried upon her, to wit, 8,898 sacks, which receipt contained the following provision, to wit: “In consideration of the reduced rate at which the articles covered by this receipt are carried, it is agreed by the undersigned, for and on behalf of the owner of the property, that the Oregon Short Line & Utah Northern Railway Company shall not be responsible for any injury or damage to the property described in this receipt not caused by the actual negligence of the said company or its agents;” that the agreement so contained in the receipt was signed by Balfour, Guthrie & Go., and that the wheat was being carried under the terms and provisions of that receipt, and not otherwise; that the injury to the wheat did not occur by reason of any negligence on the part of either of the petitioners, or of any ■ of their agents or servants, but was caused solely by a peril over which the petitioners, and each of them, had no control, and which injury could not have been prevented by the exercise of any care on the part of the petitioners, their officers, agents, or employés. The petitioners further alleged that Short, Boyce, and Peterson, and each of them, well knew the danger connected with working in the hold of the barge, and that the danger was one of the risks of their employment, voluntarily assumed by them, and each of them had knowledge of the danger connected therewith, and that the injuries resulting to Boyce and to the estates of Short and Peterson were not caused by any negligence or lack of care or skill on the part of the petitioners, or any of their officers, agents, or employés, but were the results solely of the contributory negligence of Short, Boyce, and Peterson, and each of them, .in entering and remaining in the hold of the barge, well knowing the danger connected with working therein; that the barge has not been libeled or arrested in any court for any of the injuries, loss, or destruction claimed, but the petitioners have been sued in the circuit court of
Upon the filing of the petition an order was made by the court appointing appraisers to appraise the value of the barge, her tackle, apparel, and furniture, as the same was at the end of her voyage at Astoria, on October 22, 1892, and after the injury and damage set forth in the petition, and also to determine the value of her freight then pending, if any. The appraisers, having qualified as such, appraised the barge, her tackle, apparel, and furniture at the sum of $100, and found that the freight, pending was nothing, it not having been delivered according to contract Thereupon the petitioners were authorized to give a stipulation for the value of the barge, her tackle, etc., as fixed in the appraisement, which was done. Whereupon, the court, ordered the issuance and publication of a monition commanding-all persons claiming damages for any loos, destruction, damage, or injuries occasioned by the disaster to the barge Columbia, referred to in the petition, to appear and make due proof of their respective claims on or before a certain fixed day, and naming a commissioner before whom such claims should be presented, and restraining all persons from proceeding further against the petitioners, or in respect to such claims, by any separate or independent suit. Pursuant to this monition, Balfour, Guthrie & Co., Malvina Short, as administratrix of the estate of the deceased Short, Sven Anderson, as administrator of the estate of the deceased Peterson, Anna C. Larson, the mother of the deceased Peterson, and William Boyce, appeared and answered separately, and by different proctors set up separately, and not in connection with each or any other, their own separate and distinct claims f'o\- loss and damage. The claims of Anna O. Larson and Hven Anderson, as administrator, and of Malvina Hhort, as administratrix, were for the death of Peterson and Fheri, respectively;- that of Boyce was for injuries claimed to have been sustained by him, and for wages claimed
In support of these several claims and defenses, the respective claimants filed, as has been said, separate answers, some of which were amended. The answer of Balfour, Guthrie & Co. alleged, among other things, that the barge was not sound, staunch, or seaworthy at the time she was loaded for the voyage in question; that her cargo was carelessly, negligently, and improperly loaded, and was, in fact, overloaded; that the barge was insufficiently manned and equipped; and that her crew was without the necessary skill and experience for the business in which she was engaged; that all these matters were at the time well known to the owners, their officers, agents, and employ és; that both the tug Ocklahama and the barge were so negligently handled at the time of the landing of the barge at the dock at Astoria that her bow was stove in; and that, in removing her to the inside of the dock, petitioners were guilty of negligence and unskillfulness.
The answer of Boyce, as amended, among other things, denied that the barge was seaworthy or in good order or condition, or that her cargo was properly loaded, or that all went well with her until the night of the 21st of October, 1892, or that the accident was at all due to the perils of the sea; but, on the contrary, alleged that the barge was lashed to the side of the steam tug Ocklahama, and, under its control, was under such headway and high rate of speed, that the Ocklahama ran the bow of the barge under the'dock, striking the; same and cutting off several of the piles, and by which the anchor was thrust through the side of the barge; that the damage, injury, and loss mentioned in the petition were caused wholly by the negligent manner in which the Ocklahama ran the barge into the dock, and not by the careless manner in which the barge was overloaded or otherwise; that he (Boyce) was employed as a deck hand on board the Ocklahama, and was ordered by her captain to go in the hold of the barge, and that, while engaged in building the bulkhead therein, as ordered by the captain of the Ocklahama, the barge listed and started to turn over, when he (Boyce) undertook to escape from the hold, and was greatly injured by the falling of the wheat. In a cross libel filed by Boyce, he set up, among other things, the same matters alleged in his answer, and also that he was employed as a deck hand on the Ocklahama, at the monthly wages of $40, with board and lodging; that, in approaching the dock at Astoria, the captain of the Ocklahama, having in tow the barge, did not use due care or caution, but that the Ocklahama was so improperly and unskillfully managed and navigated that she was driven upon and into the wharf with such force as to drive one fluke of the anchor through the bottom of the barge, making a hole therein and letting the water into the hold thereof; that, while the steam tug and barge were under the full control of the master of the tug, he (Boyce) in obedience to the orders of the master, went from the tug Ocklahama to and upon the barge, and into her hold, to assist in repairing the leak, and, being in the performance of his duty, and in obedience to the orders of the master
The answer of Malvina Short, as administratrix of the estate of the deceased Short, as also the answer of Sven Anderson as administrator of the estafe of the deceased Peterson, alleged the saíne matters of negligence set out in the answer of Balfour, Guthrie & Co., except as to the alleged insufficiency and unskillfuluess of the crew of the barge, and except, also, as to the allegation of negligence in making the landing at Astoria, and in moving the barge to the inside of the dock. They also allege that the barge was improperly constructed, in having a round, instead of a fiat, bottom, and that there was negligence on the part of the petitioners in not having provided suitable pumps and pumping apparatus.
The answer of Anna O. Larson, mother of the deceased Peterson, among other things, denied that the barge was seaworthy, or in good order or condition, or that the cargo of wheat was properly loaded thereon, or that the accident occurred without the fault, privity, or knowledge of the petitioners, or was at all due to the perils of the sea, or that the barge was properly manned or equipped for the voyage in which she was engaged, or was under the charge of proper officers. It also alleged that she is the mother and sole surviving parent of the deceased Peterson, who was, at the Lime of the accident, 'in the employment of the petitioners as deck hand on the Ocklahama, and subject to the orders of the captain thereof, who was the deceased íáhort; that, on the afternoon of October 21, 1892, Short, pursuant to the orders of the petitioners, took the barge, which was then old, decayed, leaky, and utterly unsea worthy, and without suitable pumps and pumping apparatus, of all of which the petitioners were aware, and which was negligently and unskillfully overloaded, and by means of the steam tug Ocklahama, towed the barge, having the deceased Peterson on board as a deck hand, from Portland to one of its docks at Astoria; that, on October 22, 1892, at the dock at Astoria, while the barge was still attached to the Ocklahama, and in tow thereof, and in control of the captain of the Ocklahama, the deceased X-V tersen, by the order of the captain of the tug, went from the deck of the Ocklahama, on board the barge, and into her hold, to assist in repairing a leak therein, and, while so engaged, and without any fault or want of due care or caution on his part, but solely by reason of the unsound and unsafe condition of the barge, and of her overloading, and to the carelessness of the petitioners, the barge suddenly turned to one side, and gave way, thereby causing the cargo of wheat to shift, whereby a quantity of water was shipped into the Hold, the deck of the barge broken, the hatchways filled with sacks
The barge Columbia, in respect to which the petitioners sought to limit their liability, not having been surrendered to a trustee, as provided for by section 4285 of the Revised Statutes, the proceeding taken was not a proceeding in rem, but a suit in equity (In re Morrison, 147 U. S. 14-34, 13 Sup. Ct. 246); and a suit in equity, not only for the purpose of limiting the liability of the petitioners, if any liability should be found to exist, but, as has been shown, also to have it judicially determined that no liability at all attached to the petitioners by reason of the injuries, damage, and loss mentioned in the petition. The monition issued and published in pursuance of the petition commanded all persons having claims growing out of the matters therein alleged to appear and intervene pro interesse suo. 13 Wall. 104; 109 U. S. 591, 3 Sup. Ct. 379, 617. All persons having-such a claim dr claims are forced by the provisions of the law into the one suit; but, when they come into it, each is entitled to set up the facts relied upon by him to make good his claim. Obviously, they may, and often do, rest upon separate and distinct grounds: It was so in the present case. All of the parties defendant, it is true, sought to defeat any limitation of liability of the petitioners, and each of the respondents sought to hold the petitioners liable for the full amount of damage sustained; but the ground of each claim, unless it be. the claims of Sven Anderson, as administrator, and Anna C. Larson, was certainly separate and distinct from any other. The claim of Balfour, Guthrie & Co. was for damages for breach of a contract of carriage; that of Malvina Short, as administratrix, was for damages sustained by the death of her husband; of Boyce, for damages for loss of wages and for personal injuries sustained by himself; and those of Sven Anderson, as administrai or, and Anna O. Larson, for damages sustained by the death of Peterson.
As has been shown, the purpose of the proceedings on the part of the petitioners was not only the limitation of their liability, but to obtain a decree that they are not liable at all by reason of any of the matters or things alleged in the petition. The subject of the suit, therefore, goes far beyond the value of the barge Columbia, for which the petitioners gave a stipulation, and involves subject-matters in which the various claimants have no common interest. What interest has Malvina Short, as administratrix, or Sven Anderson, as administrator, or Boyce, or Anna C. Larson, in the wheat of Balfour, Guthrie & Co. that was lost? What interest has that company in the death of Short, or of Peterson, or in the injuries and damage sustained by Boyce? And what interest has Malvina Short, as administratrix, in the death of Peterson, or in any of the injuries or damage sustained by Boyce? Or Anderson, as administrator, or Anna C. Larson, in the death of Short, or in the injuries and damage sustained by Boyce? Or Boyce, in the death of Short or Peterson? Obviously, none. These causes of action are the subject-matters of the suit, in which the interests are manifestly separate and distinct. In no respect does the stipu
The proceedings here in question are quite analogous to joint suits for seamen’s wages, and to the practice in case of salvage. In Oliver v. Alexander, 6 Pet. 143, which was a libel bv officers and seamen for ilieir wage's, and in which proceeding a separate decree was t-nrered by the trial court for each libelant, for the amount found due him, and apportioning pro rata the payment of the same out of the funds in court and decreeing the deiieit to be paid by the owners of ihe ship, the sums so decreed to the libelants, respectively, in no case exceeded $900. Prom the separate decrees so rendered, an appeal was taken to the supreme court, the appellant giving several appeal bonds upon Mu' appeal from each decree, as well as a joint appeal bond for ihe whole. A motion was made to dismiss the appeal upon the ground ihat 1he sum in controversy in each decree was less than $2,000. and, as such, insufficient to give the supreme court appellate jurisdiction. The motion was resisted upon the ground that the aggregate in controversy under the whole ol the decrees, taken logad her, greatly exceeded Ihat value. The court granted the motion, and dismissed the appeal for want of jurisdiction, and in the course of its opinion said:
“It is well known that every seaman has a right to sue severally for his own wages in tlie courts of common law, and that a. joint action cannot he maintained in such conns, h.v any number of seamen, for wages accruing under the same shipping ai líeles for the same voyage. The reason is that the common law will noi tolerate a joint action, except by persons who have a joint interest and upon a joint contract. If the cause of action be several, the suit ¡mise be several also. Bur a different course of practice has prevailed for ages ill the court of admiralty in regard to suits for seamen’s wages. It is a special favor, and a ¡•eeuliiir privilege allowed to them, and to them only, and is eoniined strictly to demands for wages. The reason upon which the privilege is founded is equally wise and humane. It is. to save the parties from oppressive costs and expenses, and to enable speedy justice to be administered to all who stand in a similar predicament, -in the expressive km gitago of the maritime law, ‘volis levatis.’ And the benefit is equally as great, to the shipowner as to the seamen, though the burden would otherwise fall upon the latter, from their general improvidoneo and poverty, with a far heavier weight. A, joint libel may, therefore, always bo fill'd in the admiralty by all tise seamen who claim wages for services rendered in the same voyage undw the same shipping articles. But. although the libel is thus in form joint, the ¡vntrae) is always treated in the admiralty, according to the truth of the ease, as a several and distinct cemraci with each seaman, lía eh is to stand or fail by ¡he merits of his own claim, and is unaffected b.i those of his colibelanls. The defense which is good against one seaman may be wholly inapplicable to ' another. One may have been paid, another may nut have performed the serv*236 ice, and another may have forfeited, in whole or in part, his claim to wages. But no decree whatsoever which is made in regard to such claim can possibly avail to the prejudice of the merits of others which do not fall within the same predicament. And wherever, from the nature of the defense, it is inapplicable to the whole crew, the answer invariably contains separate averments, and is applied to each claim according to its own peculiar circumstances. The decree follows the same rule, and assigns to each seaman severally the amount to which he is entitled, and dismisses the libel as to those, and those only, who have maintained no right to the interposition of the court in their favor. The whole proceeding, therefore, from the beginning to the end of the suit, though it assumes the form of a joint suit, is in reality a mere joinder of distinct causes of action, by distinct parties, growing out of the same contract, and bears some analogy to the known practice at the common law of consolidating actions against different underwriters, founded upon the same policy of insurance. Be this as it may, it is the established practice of the admiralty. The act of congress, already referred to, adopts and sanctions the practice; and it enacts that, in proceedings in rem against the ship for mariner’s wages, ‘all the seamen or mariners having cause of complaint of the like kind against the same shúp or vessel, shall be joined as complainants.’ Act 1790, c. 29, § 6. It thus converts what by the admiralty law is a privilege into a positive obligation where the seamen commence a suit at the same time in the same court by a proceeding in rem for their wages. And it further directs that ‘the suit shall be proceeded on in the said court, and final judgment be given, according to the course of admiralty courts in such cases used.’ Act 1790, c. 29, § (5. From this summary view of the nature and operation of the proceedings in the admiralty, in cases of joint libels for wages, it is obvious that the claim of each seaman is distmct and several, and the decree upon each claim is, in like manner, distinct and several. One seaman cannot appeal from the decree made in regard to the claim of another, for he has no interest in it and cannot be aggrieved by it. The controversy, so far as he is concerned, is confined solely to his own claim: and the matter of dispute between him and the owners or other respondents is the sum or value of his own claim, without any reference to the claims of others.”
In Thomas v. Lane, 2 Sumn. 1, Fed. Cas. No. 13,902, which, was a cause of salvage, Judge Story said:
“My opinion is that there is no difference as to the right of appeal, whether the respondents sever or join in their answer or pleadings, if the defense is several in its nature. * * * In case of an appeal from a joint decree in chancery against the defendants in the suit all the defendants affected by the decree must join; but this is because they are united in interest. And in suits in admiralty, founded upon contracts, I should have no doubt that the appeal must be by all the respondents charged, either personally or in interest, by the decree. But wherever the case, though joint in form, is in reality several in its character, as in cases of salvage, where distinct owners intervene severally as respondents, each for his own interest, it seems to me that the decree, though in form joint, must be treated as several in its operation, and that each defendant must possess a several right of appeal for his own distinct interest.”
In all of these cases the procedure is, in truth, a joinder of separate and distinct causes of action, the decrees in which, where several in their nature, should be treated as several in their operation even though joint in form. See, also, Hanrick v. Patrick, 119 U. S. 156, 7 Sup. Ct. 147; Russell v. Stansell, 105 U. S. 303; Gray v. Havemeyer, 3 C. C. A. 497, 53 Fed. 174. William Boyce, therefore, not having any interest in the questions at issue between the petition^ ers and the appellants, was not a necessary party to their appeal; and, if it be conceded that Anna G. Larson was a necessary party to the appeal of Sven Anderson, as administrator of the estate of the deceased Peterson, her appearance in this court on the appeal,
All of the respondents and cross libelants not only contended that the barge was, from the inception of the voyage, unseaworthy, but also that the barge and tug were, iu law, one vessel, and that, to avail themselves of the benefit of the limited liability act, the owners must surrender the tug as well as the barge in satisfaction of the loss and damage complained of. The court below found the fact to be that the barge was, at the time of the accident, seaworthy, and, as the evidence in respect to that, question is decidedly conflicting, the finding of the trial court must be accepted ou this appeal as conclusive. The Alejandro, 6 C. C. A. 54, 56 Fed. 621. The court below also found that the master of the barge was negligent in shifting certain portions of her cargo, and that this negligence of the master of the barge was the proximate cause of the sinking of the barge, and of the loss and injuries sustained by the respective claimants, and, holding, as it did, that “the tow service of the tug was ended before the proximate cause of the accident in question was set in motion,” confined (he compensation of the respective claimants to the stipulated value of the barge. Iu (his we think the court below was in error.
The case shows that the wheat in question was destined to be transported from Portland, Or., to Liverpool, England, by means of the barge Columbia and the British ship Westgate. That fact appears, not only from the testimony in the case, but from the petition as well. The Oregon Short Line & Utah Northern Railway Company, lessee of the barge and of the tug Oeldahaina, undertook to transport the wheat from Portland to tin; ship Westgate. The shipping receipt issued by the master of the barge1 to the owner of the wheat was issued on behalf of the owner of the craft. The contract of carriage was the owners’ contract, and the terms of (he contract were that the carrier was only to be liable to the owner of the cargo for negligence. According to the contract, the carrier was liable for negligence. As the wheat was to he carried on board the barge, which had no motive power, of necessity such power had to be supplied by the carrier. This the carrier did, as was its custom, by means of a lug, — - in this instance, the tug Oeklahama, owned by the Oregon Railway & Navigation-Company, and under lease to the Oregon Short Lino & Utah Northern Railway Company, as was the barge Columbia. When the tug made fast and took in tow the barge, to perform the contract of carriage, the two became one vessel for the purpose of that, voyage, — as much so as if she had been taken bodily on board the tug, instead of being made fast thereto by means of lines. The Northern Belle, 9 Wall. 526-529; Sturgis v. Boyer, 24 How. 110-122; The Merrimac, 2 Sawy. 595, Fed. Cas. No. 9,478; The Bordentown, 40 Fed. 686.
In the case of The Northern Bello, the supreme court, in speaking of the facts there appearing, said:
*238 “Tlie barges are owned by tbe same persons who own tbe steamboats by which they are propelled, and are generally considered as attached to and making part of the particular boat in connection with which they are used, though quite often an individual or corporation owning several boats running in a particular trade have a large number of barges, which' are taken in tow by whatever boat of the same line may be found most convenient. In every case, however, the barge is considered as belonging to the boat to which she is attached for the purposes of that voyage.”
In The Keokuk, 9 Wall. 519, the court found, from the evidence, that the carrier had made no contract to carry the wheat that had been put in one of the carrier’s barges without its knowledge, and which, therefore, had not been cared for by the carrier and.lost; but the court said:
“It is very clear, had the steamer taken the barge in tow, the lien would have attached, although the bills of lading were not executed, because! the act of towing the barge would be evidence that the grain was received, and that there was a contract to carry, it safely. And the steamer would be equally liable if the barge had be.en left at the landing by tbe fault of the officers of the boat. But the evidence not only fails to prove this, but establishes the contrary conclusion.”
In the present case, the barge and tug had the same owner, and both were operated by the same carrier. In the voyage, both were necessarily- under the control of thé master of the tug. They constituted the instrument of carriage, to which the wheat was liable for The service, and on which the owners of the cargo had a lien for the due performance of the contract of carriage. The case shows that the tug, having the barge loaded with wheat in tow, left Portland about 1 o’clock in the afternoon of October 21, 1892, and reached Astoria about 12 o’clock that night. Notwithstanding there is nothing in the case to show that the contract of carriage contemplated the landing of the wheat at Astoria, or the tying up of the barge at the dock at that place, but, on the contrary, the delivery of the wheat from the barge to the ship Westgate, yet the tug — due, probably, to the late, hour of arrival — undertook to tie up at the dock, and, in doing so, carelessly ran the barge against the piles of the dock, and with such force as to knock a hole in her stem, thereby causing a serious leak. The master of the tug continued, after the accident, to exercise control over the barge, as well as the tug, changed its position, put the engineer of the tug at work with a siphon to pump the water out of the barge, and himself went, with one of the deck hands of the tug, into the hold of the barge for the purpose of building a bulkhead to guard against the water, and was so engaged when, about two hours after the accident, the barge collapsed, causing the death of the master and deck hand of the tug, the injury of Boyce, a deck hand of the barge, and the loss of the wheat of Balfour, Guthrie & Co.
The court below held that the collapsing of the barge was occasioned by the negligent shifting of some sacks of wheat by the master of the barge, and that that act of his was the proximate cause of the loss and damage in question. But no question of proximate cause», we think, arises in the case, for the reason that the tug and barge are, in law, considered one vessel, for the purpose of the voyage in question, and, whether the accident giving rise to the loss and damage
Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.
Dissenting Opinion
(dissenting). I am unable to agree with the majority of the court: in (he conclusions reached on the motion to dismiss the appeal, for the reasons stall'd by Judge HANJfOKD in the opinion of the court at the original hearing, and reported in 67 Fed. 942, 15 O. C. A. 91. Jurisdiction being entertained, I concur in the judgment requiring the surrender of the steamer or tug Ocldahama, as well as of the barge.
