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its upper end. That barge was so damaged that it soon sunk. Another of the libellants' barges was very slightly injured. Their entire loss was $2,044.56. By the collision the owners of the Morgan were also sufferers to the extent of $1,600. Three of their barges were injured, of which two eventually sunk. The collision occurred shortly after 5 o'clock
The libellants allege that their loss was occasioned by the "negligent, careless, and unskilful manner in which the said steam-boat L. W. Morgan was navigated and handled ;” and they seek a decree against the vessel. The libel does not specify wherein the alleged negligence, carelesness, and unskilfulness consisted; but the libellants insist that the proof show that it was the duty of the Morgan to have su descended the river in the vicinity of Brunot's island, the bar, and McKee's rocks, as to pass out from McKee's rocks around the bar by "flanking," and not in the manner in which the boat was there run; and that by thus "flanking out" the collision with the libellants' barges would have been avoided. In no other particular has complaint been urged against the Morgan.
The expert witnesses speak of two well-known methods of navigating the river at and out from McKee's rocks by towboats with tows in charge, viz., by “flanking” and by “steering." Perhaps the witness Michaels most clearly explains these methods. He describes "steering out" thus: "When we get to the point [i. e., lower end) of the island you back the stern of the steam-boat up to the land, throw her head away from the head of the shore, swing her out, and drive ahead." The other method he thus describes: "In flanking we commence away above; flank down the island, with the stern of your steam-boat towards the island, till you come down near enough--till you get through to the inside of the bar-and turn the stern of your steam-boat towards the bar and flank out.” The tow-boat ordinarily draws less water than her tow, and this witness states that in flanking as above described the stern of the tow-boat overlays the bar. The evidence clearly establishes that tow-boats with such tows as that of the Morgan pass out from McKee's rocks in both the ways above
described,-sometimes by "flanking," sometimes by "steering,”—and as often by the latter as the former method. There is no fixed rule as to running this place, and on each occasion the pilot exercises his best judgment as to the course he will adopt.
Some of the expert witnesses (but not all) say that flanking out from McKee's rocks is the safest course generally. Most of them, if not all, testify that it was the best and safest course for the libellants' barges, in view of their locality at shore, and the libellants insist that the Morgan is chargeable with negligence in not pursuing that course. But I cannot adopt this conclusion. To pronounce “steering out” from McKee's rocks to be negligence per se would be to condemn the common practice of some of the best of pilots on the river. Was, then, the Morgan censurable in undertaking that mode of navigation on the occasion in question? I think not. When she entered at the head of Brunot's island her pilots did not know, and had no reason to suspect, the state of things existing below. They were not bound to anticipate that they would find the libellants’ barges projecting into the ordinary tow-boat channel, at that stage of water, at McKee's rocks; and when they discovered these barges it was too late to attempt to change the Morgan's stern from the island to the bar. Such a maneuver then—with a huge and unwieldy tow, in a five-mile current, before daylight, with stranded barges on the bar, whose precise location was not known-would have been extremely hazardous, if not inevitably fatal to both parties. To effect a landing at that time and place was impracticable, and the Morgan had not power to back up stream, or even to hold her tow against the current. She could not do otherwise than pursue her descending course. The most that could be done was to check the boat's headway by reversing the engines, and this was done. I am satisfied that, after the danger was perceived, all that was possible to avert the catastrophe was promptly done; and I am of opinion that, from first to last, the Morgan was blameless.
It however appears that the owners of the Morgan brought
suit against the present libellants in the court of common pleas No. 1, of Allegheny county, to recover damages sustained by them in consequence, as they alleged, of the libellants having negligently and unlawfully obstructed the towboat channel, in which suit there was a verdict for the defendants and a judgment in their favor, which was affirmed by the supreme court of Pennsylvania. And it is claimed that this judgment is conclusive against the owners of the Morgan to the extent of fixing upon them at least contributory negligence. But the verdict in that suit was a general one, and it does not appear upon what ground the jury based their finding. It was contended, on behalf of the defendants there, (the libellants here,) that they were justified in temporarily mooring their barges off McKee's rocks in their then circumstances of distress. That defence was submitted to the jury, as will appear from the following extract from the charge of the learned judge who tried the case: “But if you should think” (he instructed the jury) “that the weight of the evidence does not make out that the defendants, under all the circumstances, were negligent; that, intending to continue their voyage, they did what ordinarily prudent and skilful pilots would do under the circumstances,- you should find for the defendants.” It is highly probable that the jury--taking & charitable view of the conduct of the defendants-found a verdict in their favor based upon the conclusion that in the emergency a reasonable necessity existed for placing their barges where they did. But, assuredly, there was no absolute necessity for so doing; and when the libellants chose to put their barges in a place of manifest danger,-in the way of unmanageable tows which they knew were coming out on that rise with pilots ignorant of the facts,—the libellants must be held to have taken the consequent risks of collisions. Obviously the case is not one for the application of the rule which requires a steamer to steer clear of a vessel at anchor. The Petrel, 18 Law Rep. (8 N. S.) 185. It may be added that it was most unfortunate that the barges were not suffered to remain as at first placed along the shore, two abreast;
for then, it is safe to say, the tow of the Morgan would have passed them without hurt.
Upon the whole case, I am of opinion that the libel should be dismissed, with costs. And now, February 7, 1881, upon consideration, it is ordered, adjudged, and decreed that the libel in this case be dismissed, and that the libellants pay the costs.
THE SCHOONER EDWIN Post.
(District Court, D. Delaware. March 1, 1881.)
Amendments are allowable in admiralty, in the discretion of the
court, at any time until the termination of the cause. 2. MARINER-WAGES—Rev. St. $ $ 4546, 4547.
The proceedings by a mariner to recover his wages, under the provisions of sections 4546 and 4547, U. S. Rev. St., are cumulative in their character, and do not interfere with his rights to recover his wages by a proceeding according to the ancient course of admiralty, as the same existed before the passage of the act of 1790, upon which
the above-named sections are founded. 3. SAME-SAME-SAME.
At most, the effect of the sections above referred to is to restrain & proceeding in rem against the vessel before the expiration of 10 days after the wages are due.
In Admiralty. Libel for Wages.
BRADFORD, D. J. The libellants in this cause filed their libel against said vessel, etc., for wages, alleging their shipment for six months by the master on April 26, 1880, at the wages of $18 a month, and the expiration of their term of service under said contract upon October 26, 1880, and the failure of the master to pay the wages which they had earned and which were due upon the expiration of said contract, upon October 26, 1880, and that they had left said vessel on
January 23, 1881, after she was put into winter quarters, in order to obtain their wages.
The libel in this cause was filed January 25, 1881, nearly three months after the said wages were alleged to be earned. Exceptions were filed by the respondent, master of said schooner, alleging substantially (1) that the libel is irregular, because it does not appear that the court has jurisdiction of the cause in this : First, that it does not appear that ten days had elapsed between the time the seamen were entitled to receive their wages and the time of filing their libel; second, because the preliminary steps pointed out by sections 4546, 4547, U. S. Rev. St., were not taken before suit was commenced in this court by the attachment of the vessel upon libel filed.
Whatever defect there may have been upon the face of the libel which arose from not disclosing the period of time between the earning of the wages and the filing of the libel, has been corrected by the filing of the amendment rectifying that omission, which the court always allows with great liberality in admiralty proceedings. So that the objection to the court exercising jurisdiction in this suit, because it did not appear that 10 days had elapsed between the earning of said wages and the time of fi'ing the libel, is thus disposed of by the amendment.
It remains only to consider the other proposition of the respondent, going to the full length of requiring the proceedings to be taken under said sections 4546, 4547, U. S. Rev. St., as a prerequisite before this court takes jurisdiction of the cause.
We cannot assent to the correctness of this proposition. The practice in this district, and we may say generally, is against it, and the decisions, as opposed to the speculations of eminent law-writers, are against it. This question has been examined at some length by Mr. Sprague, an eminent admiralty judge, who arrives at the conclusion that the acts of congress do not, in all cases, impose a duty on the sailor of proceeding to recover his wages in the manner pointed out in the sections of the Revised Statutes. In fact, he thinks that the statutes did not alter or restrain the