The Mercedes

108 F. 559 | S.D.N.Y. | 1901

BROWN District Judge.

The libel excepted to alleges that tlve fug Morrales of which the libelant was master, had in tow alongside on the 1st day of April, 1901, a barge called the Sampson, and that while towing her in (lie harbor of New York in the usual channel towards Forty-First street;, South Brooklyn, the barge was run into by the steamship Buena Ventura solely through the negligence and fault of the latter; that the barge and cargo were thereby totally lost, and that the owners have sustained damages thereby to the amount of $9,000, for which judgment is asked. Exceptions to the libel are filed by the claimant of the Buena Ventura on the ground that the libelant as master does not state what interest he has in the barge or cargo, if any, or whether he is attorney for either.

Although a tug in the fulfillment of a towage contract, is not subject to the liability of a common carrier, but is responsible only for nautical skill and diligence, the master of the tug.is in charge of the tow, and as such is a common-law bailee of the tow and her cargo with a lien for the services rendered. In the character of bailee he is entitled to maintain an action against a wrongdoer who destroys the property, and in such action to recover its whole value; and after deducting whatever may be his own loss under his contract for towage or other lawful charges, he will hold the residue in trust for the owner. The precise question arose in the casé of The Jersey City, 2 C. C. A. 365, 51 Fed. 527, in which, upon appeal, the decree below was affirmed, without reference to any question of subrogation considered in the court below, upon the ground that the libelant, the Cornell Steamboat Company, as bailee, was entitled to maintain the action and to recover full damáges for the loss of the tow. That decision is binding on this court. The general doctrine in this regard is reviewed more at length in Knight v. Carriage Co., 18 C. C. A. 287, 71 Fed. 662.

In Story, Bailm. § 94,.the general rule is stated:

“That either the hailor or the. bailee may, in such a case,' maintain a suit for redress; and a recovery of damages by either of them will he a full satisfaction, and. may be pleaded in bar of any subsequent suit by the other.”

In, admiralty practice the owners of the barge and cargo may, if they choose, at any time intervene as co-libelants for the protection of their interests, and on discharge of the master’s claims, if any, take upon themselves the sole prosecution of the suit.

On thé other hand, the claimant of the Buena Ventura upon petition under the fifty-ninth rule, showing that the Mercedes yvas in. fault, might bring the latter vessel into the suit as co-defendant, and in that case a substitution of the owner of the tow and cargo as libel-ant would be the proper course. The Beaconsfield, 158 U. S. 303, 309, 310, 15 Sup. Ct. 860, 39 L. Ed. 993. If no fault of the Mercedes should be claimed by the Buena Ventura, it is a matter of indifference to- her owners whether the libel is by the master or by the owner of the tug and tow, since in no event could more than one satisfaction be had.

The other exceptions to the libel are plainly insufficient. Exceptions overruled.