28 F. Cas. 961 | S.D.N.Y. | 1879
In the first ease, the district court decreed against the respondents, November 10th. 1866, $27,-747.82 damages and $276.76 costs. In the second case, the district court dismissed the libel, May 17th, 1864, with $420.96 costs. In the libel in the first case the claim was $100,-000. In the libel in the second case, the claim was “at least” $75,000, "with interest.” [Cases unreported.] The respondents in the first case appealed from the whole of said decree therein, on the ground that the libel therein ought to have been dismissed. The libellants in the second ease appealed from the whole of said decree therein, on the ground that they were entitled to recover their damages. This court made a decree in each case, on said appeal therein, reversing the decree therein, and ordering that the damages sustained by the respective parties by the collision be apportioned. [See Case No. 10.330.] The damages sustained by the li-bellants in the second suit were not ascertained in the district court. This court or
Repairs to the North Star, the vessel of the libellants in the first suit . $ 5,141 43
Interest thereon for 4 years, to March 13th, 1866, the date of the commissioner’s report in that suit, in the district court. 1,083 90
$6,225 33
Deterioration in the value of the North Star . 6,000 00
Demurrage, 17 days, at $900 per day . 15,300 00
$27,525 33
The district court, on the exception by the respondents in the first suit to the item of $6,000 for deterioration, reduced it to $5,000, thus deducting ..'.. 1,000 00
$26,525 33
Interest on $26,525.33 from March 13th. 1866 (the date of the commissioner's report}, to November 10th, 1866 (the date of the decree) 1,222 49
$27,747 82
The Ella Warley, the vessel of the respondents in the first suit and the libellants in the second suit, was. with her outfit and stores, totally lost by the collision, on the 9th of February, 1863. This court has fixed her value, at the time she was lost, at $40,000, and the value of her outfit and stores lost, at that time, at $7,675.00.
The costs of the several parties, other than as above specified, have been taxed as follows: Costs of the respondents in the first suit, in the district court, $58.40, and in this court, $31.50; costs of the libellants in the second suit, in the district court, $496.44, and in this court. $1,129.83; costs of the libel-lants in the first suit, in this court, $577.12; costs of the claimants in the second suit, in this court, $123.85.
The counsel for the owners of the North Star asks that the costs of all parties, in both courts, be apportioned, as well as the damages. The counsel for the owners of the Ella Warley asks that they recover their costs of the district court and of this court.
The North Star recovered in the district court, as damages, as follows: Repairs, $5,-141.43; deterioration, $5,000; demurrage, $15,-300; total, $25,441.43. In this court it has recovered only one-half of that sum, which reduction has been effected by the appeal of the respondents in the first suit. In the district court the Ella Warley recovered nothing. In this court it has recovered the one-half of $47,675.90. which recovery has been effected by the appeal of the libellants in the second suit. Throwing out interest, the North Star recovers $12,720.72, and the Ella Warley recovers $23,837.95, leaving a balance of recovery in favor of the Ella Warley, of $11,117.23.
In Hay v. Le Neve, 2 Shaw, 395, in 1824, both vessels were held in fault, one only suing, and the house of lords awarded to the vessel suing one-half of her damage, and ordered that each party bear his own costs. The court referred to a case before Sir James Marriott, in 1789, where it was found that both ships were to blame, but one the most, and the loss was apportioned, and it was ordered that the costs of both parties be brought together and divided and borne equally by the parties; and remarked, that “it would, perhaps, be more equitable to say they should each pay their-own expenses.” In the eases of The Monarch. 1 W. Rob. Adm. 21; The Oratava, 5 Month. Law Mag., Notes of Cases, 45; and The De Cock, Id. 303,—all in 1839,— Dr. Lushington, on the authority of Hay v. Le Neve, ordered that each party should pay his own costs, the damages being apportioned:. In The Washington. 5 Jur. 1067, in 1841, where both vessels were held to blame, in cross actions. Dr. Lushington is reported as -saying: “I decree the damages, costs and expenses of both parties to be thrown together, and to be equally divided, according to the precedent of Hay v. Le Neve, in the house of lords.” But this report must be incorrect. In the case of Vaux v. Sheffer, 8 Moore, P. C. 75, in 1852, there being cross suits, Dr. Lushington had held one vessel only in fault. She appealed. The privy council held both vessels in fault, and divided the damages,- and-said: “There will be no costs.” In The James, Swab. 55, in 1856, one party only suing, Dr. Lushington found both vessels in fault, and pronounced for one-half of 'the damage proceeded for, “but made no order as to costs.” The claimants of the vessel sued appealed, and the privy council reversed the decree below, and held that the suit could not be maintained, but allowed no costs of the appeal. In The Dumfries, Swab. 125, in 1856, the owners of a vessel totally lost by a collision sued the Dumfries, which was injured also. Dr. Lushington condemned the Dumfries. She appealed. The privy council held the Dumfries not to be in fault and the other vessel wholly to blame, and reversed the decree, and said: “But, as one vessel was wholly lost, and the other sustained much injury, and as the case is attended with many difficulties, they are of opinion that no costs ought to be allowed, either in this court or the court below.” In the Fyenoord, Swab. 374, in 1858, one vessel suing, Dr. Lushington held the vessel sued wholly in fault. She appealed. The privy council held both vessels in fault, and divided the damage, and said: “The appellants to have their costs of appeal.” In The Hibernia, 5 Ir. Jur. (N. S.) 366, in 1860, in the Irish court of admiralty, one vessel suing, the court held both vessels in fault, and divided the damage, “each party paying his own costs.” In Maddox v. Fisher [The Independence], 1 Lush. 270. and 14 Moore, P. C. 103, in 1861, there being cross suits, Dr. Lushington held one
The English rule, applied to the presen! •case, would require, therefore, that each party should bear his own costs, both in this •court and in the court below. In this country, the rule has not been uniform. In The Rival [Case No. 11,867], in 1S46, in the district court for Massachusetts, both vessels were held to blame, and the damages were equally divided, but all the costs were imposed on the vessel which was held to be most in fault. But, in Lenox v. Winisimmet Co. [Id. 8,248], the same court, in 1S48, holding both vessels in fault, divided the aggregate damages equally, and decreed that each party pay one-half of the costs. In The Bay State [Id. 1,148], in 1848, in the district court for this district, one vessel suing, both vessels were held in fault, and the libellants were awarded one-half of their damages, and no costs were allowed to either party against .the other. In The Catharine v. Dickinson, 17 How. [58 U. S.] 170, in 1854, the supreme court, for the first time, decided, that the proper rule of damages, where both vessels were in fault, was to divide the loss, but nothing was said about costs. In The Nautilus [Case No. 10,058], in 1854, the district court for Maine, finding both vessels in fault, divided the whole damage to both between them by moieties, and ordered that each party pay his own costs. In Lucas v. The Thomas Swann [Id. 8,588], in 1854, the district court for Ohio found both vessels in fault, and divided the loss, and ordered that the costs “be paid equally.” In Foster v. The Miranda [Id. 4,977], in 1854, the district court for Illinois held both vessels in fault, and divided the aggregate damage equally between both parties, and ordered that each party pay his own costs, although one recovered $150. In the St. Charles, 19 How. [60 U. S.] 109, in 1856, the district court had held one vessel wholly in fault, and the circuit court had held the other vessel wholly in fault and dismissed the libel. The libellants appealed to the supreme court, and that court found both vessels in fault, and apportioned the loss, and gave to the appellants their costs of appeal in the supreme court. In Chamberlain v. Ward, 21 How. [62 U. S.] 548, in 1858, there being cross-libels, the district, court for the Southern district of Ohio had found one vessel wholly in fault. She appealed to the circuit court. • That court held that each party' must pay one-half of the damages occasioned by the collision, and of the costs in both courts. Both parties appealed to the supreme court, which held that the case was one of mutual fault, and affirmed the decree of the circuit court, without costs in the supreme court to either party. In The Marcia Tribou [Case No. 9,062], in 1858, in the district court for Massachusetts, both vessels were held in fault, and the damages and costs were ordered to be borne by each in equal proportions. In the same court, in O’Neil v. Sears [Id. 10,530], the same ruling was applied. In The Bedford [Id. 1,216], in this court, in 1863, one party alone suing, the district court had decreed for the libellants. The claimants appealed. This court held both vessels in fault, and ordered the libel-lants’ damages to be divided, and allowed no costs to either party in the court.below, but allowed the appellants their costs in this court. In The Austin [Id. 663], in 1868, in the district court for this district, one vessel alone suing, and having been injured, and both vessels being found in fault, the damages were apportioned, and costs were given to the libellants. In the Baltic [Id. 824] and The Paterson [Id. 10,795], both cases in 1869, the same court, under the same circumstances, made the same ruling. In Lane v. The Denike [Id. 8,045], in 1868, there being cross suits, the district court for Massachusetts had held one vessel wholly in fault and awarded full damages and costs to the other. On appeal, the circuit court held both vessels in fault
The counsel for the owners of the North Star asks this court to follow the ruling in the case of The America [supra]. There is no allusion in the opinion of the court in The America to the decision in The Sapphire. In each case only one vessel sued, and there was no allegation of damage to the other vessel, and the supreme court, on an appeal by the vessel sued, reversed the decree of the circuit court, and reduced the libellants’ damages by one-half, because both vessels were held in fault. Yet, in the earlier case, the court held that it would be inequitable not to give to the libellants their costs of the district and circuit courts, and, in the latter case, it apportioned the costs in both of those courts equally between the two vessels. In none of the cases cited by the supreme court in The America, did it apportion the costs of the courts below equally between the parties. In The Catharine and The St. Charles [supra], nothing was said about the costs below, and, in The Maria Martin, the decree of the circuit court, that each should pay his own costs, was affirmed. In Chamberlain v. Ward [supra], the circuit court divided the damages and the costs of the district and circuit courts, and that decree was affirmed by the supreme court. In Chamberlain v. Ward, in Lane v. The Denike, and in The Mary Fatten, there were cross-libels, as in this case, and the costs were divided, as well as the damages. There is no case of cross-libels, which Í have been able to find, in this country, where both vessels have been found in fault, and the costs in the courts inferior to the supreme court have not been divided. In the following eases, the costs of the lower courts, as well as the damages, have been divided, where only one party sued and both were held in fault, viz.: Lenox v. Winisimmet Co., Lucas v. The Thomas Swann, The Marcia Tribou, O’Neil v. Sears, and The America [supra]. In the following cases, where only one party sued, and the damages were divided, each party was' left to pay his own costs of the'lower courts, viz.: The Bay State, The Nautilus, The Miranda, The Bedford, The Maria Martin, The Favorita, and The Empire State [supra]. In the following eases, where only one party sued, and the damages were divided, the libellant- recovering had his costs of the lower courts, viz.: The Austin, The Baltic, The Paterson, The Sapphire, and The City of Hartford [supra]. In The Rival, the damages, one vessel suing, were divided, and the costs were imposed on the vessel most in fault.
In view of the cases in this country, I think that the better rule is. that in a case like the present, of cross-libels and mutual fault, the aggregate costs of both parties in this court and in the district court must be divided equally between the parties. Whether The America is to be regarded as overruling The Sapphire, in a case like The Sapphire, is a question not involved in this ease,
In regard to the damages sustained by the owners of the North Star, interest is not to be added on the $27.747.82, from the time of the decree of the district court, but the item of $5,141.43 is to be taken, and interest paid on it from the time it was paid for repairs. The $5,000 deterioration is to be taken, and interest is to be allowed on it from the date of the commissioners’ report, March 13th, 1S6G. The demurrage, $15,300, is to be taken, and interest is to be allowed on it from the latter date. The interest on the money paid for repairs, may be at the rate of 7 per cent, per annum, and the other