US SUPREME COURT DECISIONS

A steamer having a coal barge in tow was navigated so carelessly or unskillfully that the barge was in danger of striking a sloop lying fast at a dock. The sloop, to prevent the collision, put out a fender, by which the barge was so injured that she filled and sunk

Held:

1. That the owner of the barge was entitled to recover from the steamer for the loss of his vessel and cargo.

2. The putting out of the fender for such a purpose was no fault on the part of the sloop.

3. If there had been a fault from the kind of fender used, the steamer would nevertheless be responsible.

4. The rule is that when property is injured by two cooperating causes, though the persons producing them may not be in intentional concert, the owner is entitled to compensation from either or both, according to the circumstances.

5. Especially is the injured party entitled to recover from that one of the two who has undertaken to convey the property with care and skill to a place of destination, but has failed to do so.

Patrick F. Brady filed his libel against the steamer New Philadelphia, her tackle, apparel, and furniture, in the District Court of the United States for the Southern District of New York in a case of collision, civil and maritime, alleging that he, the libellant, was owner of the coal barge Owen Gorman, chanrobles.com-red

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which was taken by the New Philadelphia to be towed to and left at a certain place in New York harbor, but, owing to the unskillfulness with which the steamer was navigated, a collision occurred between the coal barge and a schooner lying at one of the docks by which the barge was sunk.

Process was duly issued, and the New Philadelphia attached. The Camden & Amboy Railroad & Transportation company intervened and made claim to the vessel as owners thereof. The proper stipulation being filed on the same day, the vessel was discharged and the claimants put in an answer denying the material facts set forth in the libel.

The district court, after hearing a great number of witnesses, dismissed the libel for the following reasons, given by Betts, J.:

"The steam tug New Philadelphia, employed in towing barges and vessels of various classes between New Brunswick and New York, through the Raritan River and across New York Bay, had in towage the barge Owen Gorman, loaded with coal, to be taken from New Brunswick and landed at the foot of 26th Street on the East River. She had nine other vessels in the same tow, which were destined to different landing points on the North and East Rivers and also at docks and piers on the Brooklyn side. The Owen Gorman was to be left by the tug at Washington Street, Brooklyn (Williamsburg). In making the course round from the North River, the tug stopped and landed a barge at the Atlantic docks, Brooklyn shore, and in so doing the Owen Gorman was brought against a small sloop moored at that dock. So soon as that barge was discharged, the tow proceeded to Washington Street, where within an hour the Owen Gorman was brought up to a pier by the tug, and was there cast off and left, the tug proceeding immediately after to her place of destination. After she was discharged and the tug was clear of her, and on her way to 26th street, the barge was found leaking rapidly, and during the effort made by those in charge of her to haul her into the slip and prevent her from sinking, she filled by water running through holes or breaks in her starboard side, and went down in deep water, and was afterwards raised, with considerable

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cost and loss to the libellant both in respect to vessel and cargo."

"This action charges the damages the owner incurred to the fault of the tug in causing the Owen Gorman to be brought into collision with the sloop at the Atlantic docks, at the time of landing a barge at that place in her transit round to Washington Street. The injury was not discovered until she had been left at the latter place and the men were endeavoring to haul her in."

"The testimony fastens no blame upon the tug in the manner the landing of the barge was effected at Washington Street. The allegations of tort in the tug by the libel and the evidence in the support of the charge all rest upon the assumption that the wrongful act and collision committed by the tug consisted in bringing the Owen Gorman against the side of the sloop at the Atlantic dock, and if that charge is not supported, the libellant has no ground of action before the court."

"It is unnecessary to go into a detail of the particulars of that transaction or the representations of the various witnesses in respect to it, as in my opinion the evidence does not justify imputing to that cause the injury which the barge received, and which led to her sinking. Over twenty witnesses were examined and reexamined with great fullness as to the facts and circumstances attendant upon the transaction, and in my judgment the clear weight of proof is that the damage to the barge which caused her sinking and all subsequent expenses was received after she left charge of the tug at Washington Street, and that it does not come within the scope of the present complaint. A minute collation and review of this mass of evidence would be a profitless labor, as no legal principle or doubt is involved in its admissibility or import. It is solely a question as to which class of witnesses had the best means of knowing the facts, and under all the circumstances is most to be relied upon in their statements."

"My opinion is that the claimants have succeeded in showing that the tug was not the culpable agent of the damages sustained by the libellant, and the libel must accordingly be dismissed with costs. "

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From this decision of the district court an appeal was taken to the circuit court, where it was reversed, and a decree made that the libellant recover. It was referred to a commissioner, who reported the amount of the damages suffered by the libellant to be $3,159.34. To this report various exceptions were taken, some of which were sustained and others overruled, so that the damages were reduced to $2,898.84, for which latter sum it was decreed the libellant should have execution. The claimants then took their appeal to this Court. chanrobles.com-red

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