Where a libel was filed by the owners of a steamer against the
owners of a propeller for a collision, and there was an agreement
between the parties in the court below that the answer of the
respondents should operate as a cross-libel, the mode of proceeding
does not meet the approval of this Court, and ought not to be drawn
into precedent. The respondents should file their cross-libel, take
out process, and have it served in the usual way.
The decision in the preceding case again affirmed.
This was in fact a cross-appeal in the preceding case, although
there was no cross-libel filed. Being a branch of same case, it was
argued by the same counsel.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
This is an appeal in admiralty from a decree of the Circuit
Court of the United States for the Southern District of Ohio. The
appellants in this suit were the libellants in the case of
Chamberlain v. Ward, decided at the present term, and the
questions to be determined have respect to the same subject matter
which was in controversy in that case, and come before the Court
upon the same pleadings and testimony. In that case, Ward
et
al., as owners of the steamer
Atlantic, filed their
libel in the district court against Chamberlain, as
Page 62 U. S. 573
owners of the propeller
Ogdensburgh, to recover the
damage sustained by the steamer in a collision which occurred
between those vessels on the 20th day of August, 1852, while
navigating on the waters of Lake Erie. After the process was
served, Chamberlain
et al. appeared and filed their answer
to the libel. In the answer, after setting up several defenses,
they alleged, among other things not necessary to be noticed, that
the collision was not occasioned by the negligence, inattention, or
want of proper care and skill on the part of the master or crew of
the propeller, but wholly through the fault, neglect, and
unskillfulness, of the master and crew of the steamer, and set
forth the grounds on which those allegations were based, and prayed
that their answer to the libel might also be taken as a cross-libel
in their behalf against Ward, to recover the damage which the
propeller sustained by the collision.
On the twenty-sixth day of April, 1853, the parties entered into
an agreement, which is a part of this record, that the answer of
the respondents should operate as a cross-libel and that the claims
of both parties should be considered by the court in weighing the
evidence, and be adjudicated upon in the final decree. Afterwards,
at the final hearing in the district court on the merits of the
case, the libel was dismissed upon the ground that the steamer was
wholly in fault, and under the agreement of the parties that the
answer should operate as a cross-libel, a decree was entered in
favor of Chamberlain for the amount of the damage occasioned to the
propeller. Ward
et al., as owners of the Atlantic,
appealed to the circuit court, where the decree of the district
court dismissing the libel and awarding damages to the propeller,
as upon a cross-libel, was in all things reversed. That reversal
was made upon the ground that the collision was the result of
mutual fault, and that the damages and costs ought to be equally
divided. Injuries had been sustained by the propeller to the amount
of three thousand dollars, and the agreed value of the steamer at
the time of her loss was seventy-five thousand dollars, and
accordingly a decree was entered in favor of Ward
et al.
for the sum of thirty-six thousand dollars, together with a moiety
of the costs in both courts. From that decree
Page 62 U. S. 574
Chamberlain
et al. appealed to this Court, and the
appeal was regularly docketed, and the case has been heard and
decided by the court, upon the libel, answer, and proofs, as
exhibited in the transcript. At the same time, Ward
et
al., the present appellants, also appealed from so much of the
decree of the circuit court as found the
Atlantic in
fault, and directed that the damages should be divided. They
appealed as respondents in the cross-libel, and under the agreement
before referred to, as sanctioned in the district court, filed a
separate copy of the record, and regularly docketed the appeal, as
in the case of a cross-libel, the answer in the other record
constituting the libel in this case.
We have been thus particular in adverting to these proceedings
in order that the relation which the respective parties bear to
this controversy, and the State of the pleadings, may be fully and
clearly understood, and for the purpose of remarking that they are
unusual, and do not meet the approval of this Court, and ought not
to be drawn into precedent. Respondents in a pending libel have the
right, in a proper case, to institute a cross-libel to recover
damages against the libellants in the primary suit, but they should
file their libel, take out process, and have it served in the usual
way, and when that is done, the libellants in the first suit
regularly become respondents in the cross-libel, and as such they
must answer or stand the consequences of default. Regularity in
pleading is both convenient and essential in judicial
investigations, and such departures from the usual practice as are
exhibited in this record ought not to receive countenance. This
appeal was taken and has been prosecuted upon the ground that the
circuit court erred in coming to the conclusion that the
Atlantic was in fault. That question we have already
considered and decided in the other appeal, and the conclusions
there stated, and the reasons for them, are applicable to this
case. As before remarked, both appeals were taken from the same
decree, and the questions presented for the decision of the court
are in all respects the same, and depend upon the same testimony.
In that case, the court held that the
Atlantic was
chargeable with fault upon three grounds:
Page 62 U. S. 575
1. Because the officer in charge of her deck did not exercise
proper vigilance to ascertain the character of the approaching
vessel after he discovered the white lights, which subsequently
proved to be the white lights of the propeller.
2. That she was also in fault because the officer of her deck
did not seasonably and effectually change the course of the vessel,
or slow or stop her engines, after he discovered those lights, so
as to prevent a collision.
3. That she was also in fault because she did not have a
vigilant and sufficient lookout.
Our reasons for these conclusions are fully stated in the former
case, and need not be repeated. Having already decided that the
propeller also was in fault, the necessary result is that the
decision of the circuit court was correct.
The decree of the circuit court, therefore, is affirmed,
without costs.
MR. JUSTICE DANIEL and MR. JUSTICE GRIER dissented.
See dissent in the preceding case.