The Mercedes

• Decision Date: 20 April 1901
• Citation: 108 F. 559
• Parties: THE MERCEDES. THE BUENA VENTURA.
• Court: U.S. District Court — Southern District of New York

108 F. 559

THE MERCEDES. THE BUENA VENTURA.

United States District Court, S.D. New York.

April 20, 1901

Wheeler & Cortis, for libelant.

Peter S. Carter, for claimant.

BROWN District Judge.

The libel excepted to alleges that the tug Mercedes of which the libelant was master, had in tow alongside on the 1st day of April, 1901, a barge called the Sampson, and that while towing her in the harbor of New York in the usual channel towards Forty-first street, South Brooklyn, the barge was run into by the steamship Buena Ventura solely through the negligence and fault of the latter; that the barge and cargo were thereby totally lost, and that the owners have sustained damages thereby to the amount of $9,000, for which judgment is asked. Exceptions to the libel are filed by the claimant of the Buena Ventura on the ground that the libelant as master does not state what interest he has in the barge or cargo, if any, or whether he is attorney for either.

Although a tug in the fulfillment of a towage contract, is not subject to the liability of a common carrier, but is responsible only for nautical skill and diligence, the master of the tug is in charge of the tow, and as such is a common-law bailee of the tow and her cargo with a lien for the services rendered. In the character of bailee he is entitled to maintain an action against a wrongdoer who destroys the property, and in such action to recover its whole value; and after deducting whatever may be his own loss under his contract for towage or other lawful charges, he will hold the residue in trust for the owner. The precise question arose in the case of The Jersey City, 2 C.C.A. 365, 51 F. 527, in which, upon appeal the decree below was affirmed, without reference to any question of subrogation considered in the court below, upon the ground that the libelant, the Cornell Steamboat Company as bailee, was entitled to maintain the action and to recover full damages for the loss of the tow. That decision is binding on this court. The general doctrine in this regard is reviewed more at length in Knight v. Carriage Co., 18 C.C.A. 287, 71 F. 662.

In Story, Bailm. Sec. 94, the general rule is stated:

'That either the bailor or the bailee may, in such a case, maintain a suit for redress; and a recovery of damages by either of them will be a full satisfaction, and may be pleaded in bar of any subsequent suit by the other.'

In admiralty practice the owners...