Deems v. Albany & Canal Line

WAITE, Circuit Justice. In my opinion this, case is governed by that of The Syracuse, 12 Wall. [79 U. S.] 167, in which, under a special contract precisely like the one here presented, it was held, that the towing boat was liable, if, through the negligence of those in charge of her, the tow suffered a loss. It is there said, that, “although the policy of the law has not imposed on the towing boat the obligation resting on a common carrier, it does require, on the part of the persons engaged in her management, the exercise of reasonable care, caution and maritime skill, and, if these are neglected, and disaster occurs, the towing boat must be visited with the consequences. * * * It frequently happens, in cases of collision, that the master ol the vessel could not have prevented the accident at the moment it occurred, but this will not excuse him, if, by timely measures of precaution, the danger could have beeu avoided. Applying these .principles to the facts as found, it seems to me that the loss must be charged to the Ohio. Beyond all doubt, the collision occurred by the want of preliminary caution and foresight, on the part of the captain and pilot, first, in changing her course, after they had started to go upon the east side of the City of Brooklyn; and, second, in not going far enough to the westward, after it had been determined to go on that side, before steadying her upon her course down the river. The set of the tide and the power of the boat were known at the time, and there was abundance of room to make a sufficient offing. The facts in this case are, certainly,- as strong against the Ohio as they were against the Syracuse. The objection to the name of the respondents comes too late. They waived process, appeared by the name in which they were sued, and have answered without taking the exception. The only difficulty I have had in the case has been in respect to the exception to the commissioner’s report, for allowing the value of the boat as upon a total loss, but, on the whole, I am satisfied that the report is sustained by the evidence. The boat was loaded with iron, and, in raising her, the bow end, to the extent of about one-third her length, was broken off. She was towed in this condition to the Pavonia flats, and the saved portion of her cargo taken out. She lay there until September 1st, 1871, when she was sold at auction for $18, no formal survey having [350] been made. There can be no doubt her owners supposed she was not worth repairing, and .the evidence, I think, is sufficient to .justify them in not attempting to do so. Although the sale took place in New York, while the wreck remained upon the flats, at a distance from the place of sale, there is nothing to show that she did not bring all she was supposed to be worth. I am satisfied with the disposition of the case made below, and a decree may be prepared accordingly. On the settlement of the decree, the libel-lants asked that the amount decreed to them might be ascertained by adding interest to, the amount awarded by the decree of the district court, including the costs there, from the time of the rendition of such decree, or, in case that could not be done, that the amount reported by the commissioner might be taheñ-as the basis, and interest added to that from the time his report was filed. WAITE,- Circuit Justice. Such I think is not the proper rule. The decree in this court is not one of affirmance or reversal, but is an original decree in the suit The decree below was, in effect, vacated by the appeal. There should, therefore, be no rests in the calculation of the amount due. The damages should be ascertained at the time of the loss and interest added from that date, without rests, until the decree-here. No interest can be allowed upon the costs in the district court until the final decree here. Until the case is finally disposed of in this court, it is to be considered as all the time pending; and, interest on costs is not allowed during the pendency of the suit The damages at the time of the loss, as shown by the commissioner’s report, may be taken as the basis of the calculation in this case, and interest added from the date of the loss until the date of the decree.