THE HARRY BROWN.
137
produced and sold under it; and thereby the value to manufacturers of the reputation of the name used by them as a trade-mark would be destroyed. There will be the usual decree for an injunction and an account· ing. THE HARRY BROWN. THE BEAVER. THE HARRY BROWN et at v. MOREN et al. (Circuit Court of Appeals, Third Circuit. No. 13. ADMIRALTY-()OLLISION BETWEEN
October 15, 1894.)
Tows IN MISSISSIPPI RIVER. The steamers R and H., each having in tow several coal barges, were proceeding down the Mississippi river. The B., which was ahead, tied up at S. landing. but lower down than, as claimed by the B.. she should have done in pursuance of an ag-reement alleged to have been made between them. When the R passed the point where the B. claimed she should have tied up, the H. was a mile or more further up the river, saw the R's movements, and had ample room to avoid her, but instead, followed the B.'s course so closely that, after the latter was tied up, the tows collided, and two barges of the B.'s tow and one of the B.'s were sunk. Held that, assuming the agreement as to the place for the B.'s tying up to be proved, the B.'s violation of it did not contribute to the collision, and that the B. alone was in fault.
Appeal from the Distriot Court of the United States for the Western District of Pennsylvania. This was a libel by John Moren and Michael Munhall, owners of two coal boats, against the steamer Harry Brown, for damages sustained in a collision. A petition was filed by Harry Brown and Samuel S. Brown, copartners trading as W. H. Brown Sons, claimants of the steamer Harry Brown, against the steamer Beaver, charging the latter with responsibility for damage to the coal boats and also to the steamer Harry Brown. The district court rendered a decree for libelants, apportioning the damages between the two steamers. The claimants of the steamer Harry Brown, and William J. Wood, Thomas J. Wood, Harry McDonald, and the Lysle Coal Company, claimants of the steamer Beaver, appe.al. George C. Burgwin, for the Harry Brown. W. B. Rodgers, for the Beaver. George C. Wilson, for appellees. Before AOHESON and DALLAS. Circuit Judges, and BUTLER, District Judge. BUTLER,District Judge. The suit is for damages resulting from a collision between tows of coal barges, in the Mississippi river, one of which was in charge of the Brown and the other of the Beaver. The district court having found the respondents jointly liable and decreed accordingly, each appealed, and assigned as error the failure to find and hold the other alone responsible.
lS8 ,
FEDERAL REPORTER, .vol.
64.
li"ih.eJrlfLis! DO ·doulitofr[Moren's'atl:d !'Iunhall's. right,t9' .recover.; tn'e)'question is, who dEl1rel!lponsible fE)J.> the collisionL,TJie libtYlants supposed the Brown was, and accordingly She the Bellver with causiJ;lg the and had her summoned to answer not only for Moren's and Munhall's loss but also for loss' suffered by herself-the Brown. The contest is therefore between the Brown and Beaver. 'l'he dIstrict court found the former in fanlt for running too near to observe an agreement the latter:. and the latter in. faultfor to "tie up' at a particular Point in the dver; which failure the court thought contdbuted to the collision. 'rith the court findiIlg the Brown in fault. Was the We Beaver 'aI'so 1n fault? A.ssuming that the alleged agreement existed, dqes it appear that the Beaver failed to observe it? In substance it was tbatsbe.should "tie up" for the nightas near the upper' end of Sweet Homelanding,{wbich extends a considerable · rivel') 'as was reasonably practicable and safe, m water. No 'exact or C()ulll necessadly.left to t4e'Beaver. She · tiedat,the'designated landing. But'did she tie ashigb up as was safe? "The disagree. abont. it. Those .. who hadexpe.rience · as high up as he Gould,.-,as high as tow could ,get in, and :find opportunity. It is difficult his to see a. motive to do otherwise. He .had nothing to gain· by going he l'an, the near.er he to SWIft wAter. If there was a proper place to he four hunup, it seemsreasQnable to believe the haveti¢d there. She saw the Beaver go by, and to provide for goIng In. There was no reason was ful' go below the Beaverin pursuance Of the alleged agreemell't,Jt,.the lJeaver failed to observe it. Her pilot was unable did:b.<)t st()P there,but suggested that darkness to There is nothIng in this suggestion. It was as was, light for :1J.¢,i as for the :Beaver, and both "tied up" IjLter, below. It seems to say that the Beaver did not observe But granting she did.:Jlot, her failure is of no consequence unless it contributed to' the collis.ion; and we are unable to see how it did. The Brown was There is no rellSon to believe .her course would have been different if she had known from the be· ginning that the Beaver was going below, or that tliecollision would not ha\(e Qcc·urred'if she had stopped above. She was· more than a mile ahead In plain view, as the pilot and master ofthe Brown ad· mit. They' saw her'pass the point where they say she should have stopped;'j>What excuse,therefore have they for l'Ullning into her? Theycouldha've stQPped! .at this place if it was a suitable one, or If they preferred togo on could have run at a safe distance towards theot1J.er side. The channel was of ample width. The suggestionof,an advel"S current Is unimportant; it did not exist at this point; and would afford no excuse if it did. It was their
THE RESCUE V. THE QEORGE a.ROBERTS.
139
duty to know the dhannel and its currents, and to govern their move- ' mentsacct)rdingly. Intending to pass the Beaver, they should have kept well over, especially in view of the unwieldy tows in charge; but instead of doing so they followed the Beaver's course so nearly, that when the danger became apparent it could not be escaped. They were then probably embarrassed by the adverse current, for which they should have provided higher up. The decree of the district court must be reversed and a decree--entered against the Harl'Y Brown in favor of John Moren and Michael, Munhall for $3,775.41 with interest from October 4, 1890, together with the costs in the district court, and of the several appeals.
THE RESCUE v. THE GEORGE B. ROBERTS, et (District Court, E. D. Pennsylvania. 1. SALVAGE SERVICES-WHAT CONSTITUTE.
at
November 12, 1894.)
Where a barge, which was the only one of a tow of seven not stranded and sunk, was drifting in a severe storm, without motive power of any kind or an anchor suited to the occasion, and it is probable she wouid have sunk had she not been rescued by libelant, and conveyed to harbor, the se,rvice of libelant is a salvage service, though the barge was stanch and well constructed,' and might have survived the storm, and it was possible she would have been picked up by others' if :libelant had not rescued her.
2.
SALVAGE-COMPENSATION.
A tug rescued a barge adrift in a severe storm on Chesapeake Bay, off Ft. Carroll, and conveyed her to Baltimore. .The time occupied was brief, and the expenses to repair the damage sustained in the work were 'small. The value of the barge and cargo was about $3,700. Held, that $800 was a just compensation.
Libel by Vivian Phillips, managing owner of the steam tug Rescue, against the eanal barge George B. Roberts and her cargo of coal. " Curtis Tilton, for the Rescue. John G. Johnson and J. Wilson Bayard,for the George B. Roberts. BUTLER,District Judge. August 12, 1893, the tug "Stella" started with seven barges in tow, the "Roberts" being one, on a voyage from Baltimore to Philadelphia. Encountering a very severe storm, off Ft. Carroll, on Chesapeake Bay, she turned back, and after remaining in harbor at North Point creek during the night, she continued her course to Baltimore. On her way up :five of the barges broke adrift, the Roberts among them, and all save the latter foundered and sank. The tug was unable to afford any aid, all her efforts, being required to take care of herself and the balance of her tow. While the Roberts was helplessly drifting before the wind arid waves, the libelant who was coming up to Baltimore went to her relief, and making fast a hawser, (with some difficulty) conveyed her to that place. The respondent does not deny liability for the service, but', denies that it was a salvage service which sholl1d .be compensated ac-