The City of Paris. THE CITY OF PARIS. A., the master and owner of the canal boat M., filed a libel in rem, in Admiralty, in the District Court, against the screw steamer C., for himself and for an insurance company, alleging that the company was the insurer of the cargo of the M., and that the M., and her cargo, had been damaged by a collision between the M. and the C., through the fault of the C. The libel did not allege that the cargo was owned by an innocent party, nor that the insurance company had paid the loss. The collision occurred in a slip, as the C. was moving out. The District Court held that the C. was in fault for allowing herself to be drawn over toward the M., by a stern line fastened to the opposite pier, which was not cast off in time; and that the M. was in fault for being insufficiently fastened, so that she was drawn over towards the C. by the suction caused by the screw of the C. On appeal by both parties, this Court held, for the same reasons, that both vessels were in fault, and made a decree holding the C. liable for only one-half of the damages sustained by both the M. and her cargo. After the decision of this Court was announced, the insurance company moved (1) that it might be allowed to prosecute the suit for its own interest; (2) that it might be made a party libellant, and allowed to prove that the cargo on board the M. was owned by an innocent party, that it was insured against loss by the company, and that the loss had been paid in full; (3) that the record brought up on appeal might be amended by inserting in the apostles the minutes o. the Commissioner, on the reference in the District Court to ascertain the amount of damages; and (4) that a decree might be entered against the C., and in favor of the insurance company, for the full amount of the damages to the cargo: Held, (1.) That the company might, if necessary, be admitted as a party, in order to settle its rights to its share of the recovery, as against the libellant, but only to that extent; (2.) That, as the M. was sold three times between the time of the collision and the time of the decree of the District Court, and as the remedy over against the M., in favor of the C., had been lost by the delay, the company could not now be allowed to make proof of the innocent ownership of the cargo, so as to charge the C. with the entire damage to the cargo, under the rule established in The Atlas, (93 U. S., 302,) although the decision in The Atlas was not made until after the libellant had appealed; (3.) That, as the report of the Commissioner was not excepted to, it was not necessary that his minutes of testimony should be brought up; (4.) That there could not be a decree against the C. for the full amount of the damages to the cargo. (Before WAITE, Ch. J., Southern District of New York, June 21st, 1878.) The City of Paris. In this case, there were appeals by both parties from a decree of the District Court, in a suit in rem, in Admiralty, in a cause of collision, finding both vessels to have been in fault, and dividing the damages. Robert D. Benedict, for the libellant. James W. Gerard, for the claimants. WAITE, Ch. J. The libellant was, at the time of the occurrence hereinafter mentioned, the master and owner of the canal-boat Montana, having on board a cargo of wheat, taken in at Oswego, New York, to be transported to New York city, and there delivered to Tompkins & Co., consignees. Between two and three o'clock in the afternoon of November 11th, 1871, the boat, with her cargo, was moved into the slip between piers 44 and 45 North river, in New York city, for the purpose of having her cargo transferred to the steam-ship Erin, then moored along the North side of pier 44. The Erin was a sea-going steamer, 370 feet long and 41 feet wide, lying with her bow towards the river, and her stern near to an L, on pier 44, forty-seven feet wide, and extending one hundred and thirty feet from the bulkhead of the slip at the street. The Montana was ninety-six feet long and seventeen feet six inches wide. Soon after her arrival in the slip, she was moored along side of the lighter Fret, twenty-three feet wide, and from sixty to seventy feet long, which lighter was made fast to the Erin, opposite the after hatch of that vessel, with her bow towards the bulkhead, by lines leading from her deck, bow and stern, to the deck of the Erin. The deck of the Erin was much higher out of water than that of the Fret. The Montana, with her bow also toward the bulkhead, was made fast to the Fret by lines from her stern and middle cleats, which latter cleat was about her midships, to the bow and stern of the Fret. The decks of these two boats were about equal distances above the water. The bow of the Montana extended from twenty-five to thirty feet beyond that of the Fret, and there was no line from it either to the Erin The City of Paris. or the pier. A floating elevator, twenty-four feet wide, and one hundred feet long, was made fast to the Erin at her middle hatch, between the Montana and the river. Outside of, and made fast to, this elevator, was a grain barge seventeen feet six inches wide, and one hundred feet long. The slip was one hundred and sixty feet wide at the river, and varied from that to 163 feet, until it reached the L. From there to the bulkhead, it was 115 or 116 feet wide, and, alongside the L, in the narrow part of the slip, two coal barges were moored side by side. The depth of the water in the part of the slip where the steamer laid, varied from 18 to 22 feet. The steam-ship City of Paris, 416 feet long, and forty feet six inches wide, was lying in the slip along side of pier 45, when the Montana came in. Her bow was towards the river, and her stern was on a line nearly at right angles with the end of the L, on pier 44. She was an ocean steamer, and one of a line of packets plying between New York and Liverpool, and leaving that slip on regular sailing days. When the Montana came in, the steamer had her steam up, and there was every indication that she was about to leave upon her voyage. This was observed and understood by the libellant. Some time before she left, she got out lines from her bow and stern, took them across the slip, and made that from the bow fast. to pier 44, and that from the stern to the L. By these lines she was worked off from pier 45, ten or twelve feet, so as to avoid collision with her own dock and the sheds upon it, as she moved out of the slip. A short time before starting, the usual whistle was blown. The captain, being on the bridge of his vessel, sent aft to inquire whether all was clear, and, receiving an affirmative answer, blew the last whistle and gave orders to go ahead. The lines leading to pier 45 were let go, but both of those leading across the slip, and made fast upon pier 44 and the L, were held on. No special notice was given from the steamer to the boats in the slip, that she was about to leave, but the libellant, standing upon the deck of his boat, saw what was being done, and knew what it meant. He took no additional precautions to protect his boat The City of Paris. against injury by the movement of the steamer, supposing what he had done was sufficient. The officers and men on the steamer were in a situation to see how the Montana was moored and fastened, and did see her when the orders were given to go ahead. The movement of a large steamer like the City of Paris out of her slip necessarily causes a displacement of the water, and the revolution of her propeller has a tendency to suck in under her stern, with great force, everything which comes within its influence. This is a fact well understood by all engaged in that business. The stern line leading from the steamer to the L was not let go until she had gone some distance ahead. This caused her stern to swing over towards the Montana. The suction created by the revolution of the propeller drew the bow of the Montana toward the steamer, and, when the propeller passed by the Montana, one of its flanges struck her under water about twenty feet from her bow, causing a leak and damaging the cargo. The boat herself suffered but slight injury. The second officer of the steamer noticed the Montana moving toward the steamer, and called out to stop the engine, but no attention was paid to him, and the steamer proceeded to sea without any knowledge, on the part of her officers, of what had occurred. Usually, when a steamer goes out under the circumstances which existed at this time, the stern line is let go before she is started ahead. No notice was given to the Montana, that any other than the usual course was to be taken in this case. The swinging of the steamer on her stern line contributed directly to the collision which occurred, but still there would have been no collision if the bow of the Montana had not been drawn toward the steamer. While it is the duty of a large steamer, in leaving her dock, to take care that no unnecessary damage is done to other vessels lying in proximity to her, it is equally the duty of the other vessels to take all reasonable precautions to protect themselves from the dangers to which they will be exposed by her movements. The libellant, in this case, had ample notice that the steamer was about leaving. He saw or could The City of Paris. have seen her lines passing across the slip. He knew, or ought to have known, that, unless his boat was securely fastened, she would be drawn in under the stern of the steamer and exposed to being struck by the propeller as it passed. He also knew, or ought to have known, that, with the Fret lying close to the Erin, fastened only by lines leading up to the deck of that vessel, she could be moved to some extent outwards into the slip. With his own boat fastened only by lines at her stern and midships, it must have been evident to him that her bow could be swung some distance outwards. He also could and did see that the space between him and the steamer was not more than twenty or twenty-five feet. It needed, therefore, but a slight movement of the two vessels toward each other, to bring them together. Under such circumstances, it was clearly his duty to be specially careful that the bow of his boat, which was the first to be exposed to the action of the propeller, was held fast in its position. It is evident that a line from his bow to the Erin, properly fastened, would have prevented the accident. This simple precaution he failed to take. It matters not that neither of the lines by which he was made fast to the Fret was broken. His boat was left so that she could swing to some extent upon her line midships, and she did do so. This, added to the swing of the stern of the steamer, caused the loss. The libellant was, therefore, clearly in fault. But the steamer was equally in fault. If her stern line had been cast off before she started, there is no reason to believe that her stern would have gone over toward the Montana, as it could not but do with the line fast. Thus the injury was caused by the combined fault of the two vessels, That of neither was sufficient alone to produce it. The damages of the parties in fault must, therefore, be divided between them. It is contended, however, that, under the rule as established in the case of The Atlas, (93 U. S., 302,) the owners of the cargo are entitled to their damages in full, as they are innocent parties. The libel is filed by the master and owner |