The Propeller Commerce 8212

• Decision Date: 01 December 1861
• Citation: 17 L.Ed. 107,66 U.S. 574,1 Black 574
• Parties: THE PROPELLER COMMERCE— Transportation Company, Claimant; Fitzhugh et al., Libellants
• Court: U.S. Supreme Court

66 U.S. 574

1 Black 574

17 L.Ed. 107

THE PROPELLER COMMERCE—Transportation Company,

Claimant; Fitzhugh et al., Libellants

December Term, 1861

Appeal from the Circuit Court of the United States for the southern district of New York.

This was a libel filed in the District Court by Henry Fitzhugh, De Witt C. Little, John Peck, and James Peck, against the steam propeller Commerce, (claimed by the Commercial Transportation Company as owners,) averring a collision on the Hudson river with the libellants' lake boat, the Isabella, by which the latter vessel was sunk, causing an injury to boat and cargo of $17,000. The cargo, it seems, did not belong to the libellants, but was in their custody as common carriers.

The allegations of the libel, the defence set up in the answer, the facts of the case as they appeared in evidence, and the points of law raised in the argument, are stated in so much fulness by Mr. Justice Clifford, that they need not be repeated here.

The libel was dismissed by the District Court; but on appeal to the Circuit Court, a decree was passed in favor of the libellants for $11,443 15, and thereupon the claimants appealed to this court.

Mr. Benedict, of New York, for claimants.

Mr. Grant, of New York, for libellants.

Mr. Justice CLIFFORD.

This was a libel in admiralty in a cause of collision, civil and maritime, and the case comes before the court on appeal from the decree of the Circuit Court of the United States for the southern district of New York.

Recurring to the transcript, it will be seen that the libel was in rem against the steam propeller 'Commerce,' and that the suit was instituted by the appellees, as the owners of the lake boat Isabella; but the record shows, that after the process was issued, and the vessel was taken into custody, the appellants, on motion, had leave to appear, and having waived publication of notice and entered into stipulation, with sureties, both for costs and value, the vessel was discharged by consent, the stipulators agreeing, that in case of default or contumacy of the claimants, execution might issue for the amount of the stipulation against their goods, chattels, and lands. No change, however, was made in the form of the libel, and the whole proceedings in the suit were as in rem against the vessel. Reference will only be made to such portions of the pleadings as seem to be indispensable to a full understanding of the several questions presented for decision. Among other things, the libellants alleged, that the Isabella left the port of New York on the nineteenth day of August, 1852, for the port of Albany, fully laden with merchandise; that she, with certain other boats and barges, was in tow of the steam-tug Indiana during the voyage, and at the time the collision occurred; that the steam-tug was well manned, tackled, apparelled, and furnished, and in all respects competent for the business in which she was engaged; and that the craft composing the tow had on board the proper complement of officers and men for their protection and management. Two of the barges were attached to the steam-tug, one on the larboard and the other on the starboard side; and to show that there was no fault in the arrangement of the tow, they alleged that the Isabella was securely attached to the larboard side of another barge, and that both were towed astern of the steam-tug, at the usual and proper distance, by means of a hawser; and, in respect to the immediate circumstances of the collision they alleged that the Isabella, in the evening of the following day, while ascending the river, in tow of the steam-tug as aforesaid, and when about ten or eleven miles below the port of her destination, was met by the propeller, coming down the river, and bound on a voyage from the port of Albany to the port of Philadelphia; and they aver, that at the time of such meeting, the steam-tug, with all the boats and barges in tow of her, was on the eastern side of the channel, and in the usual and proper place for such craft when so ascending the river; but that the propeller, after she had passed the steam-tug in perfect safety, suddenly and improperly sheered to the eastward, and, through the negligence of those in charge of her, ran against the larboard bow of the Isabella, stove the bow from the stem, broke all the lines by which she was attached to the barge, and so damaged her that, in a few minutes, she sunk in the river, with all her cargo on board. As alleged in the libel, her cargo consisted of groceries and other merchandise, together with a steam-engine; and the libellants alleged, that the whole amount of the loss, including the damage to the cargo, was seventeen thousand dollars. When the libel was filed, the propeller was in the port of New York, and, as the libellants alleged, within the jurisdiction of the District Court. Accordingly, they prayed process, in due form of law, as in cases of admiralty and maritime jurisdiction, and it was issued and duly served upon the vessel. On the other hand, the claimants denied the allegation that the steam-tug was well manned and equipped, or that the boats and barges in tow of her had a full complement of officers and men for their protection and management, or that the tow was properly made up, and especially that the Isabella was at no greater distance astern of the steam-tug than was usual and proper. They admitted, however, that the propeller passed the steam-tug in safety, and met the Isabella at the time alleged, but denied that the steam-tug, or the boats and barges in tow of her, were on the eastern side of the channel, or in a proper place for such craft when ascending the river.

Their theory was, that the lower barge, with the boat of the libellants attached, was on the western side of the channel and they accordingly alleged that the tow was out of the usual and proper place; and they expressly denied that the propeller, after passing the steam-tug, sheered at all, or so moved towards the eastern side of the channel as to cause the collision. Witnesses were examined on both sides in the District Court, and, after a full hearing, a decree was entered dismissing the libel, and the libellants appealed to the Circuit Court. Additional testimony was taken on the appeal, and the Circuit Court reversed the decree of the District Court, and entered a decree in favor of the libellants. Whereupon the claimants appealed to this court, and now seek to reverse the last named decree.

It appears from the evidence that the steam-tug, when she started from New York, had seven boats and barges in tow, but the number, although she left one at Kingston, was increased to ten in the early part of the trip. On arriving at Athens, the master, as he had been accustomed to do, rearranged the tow, in order to make it narrower for the residue of the voyage. Briefly stated, the arrangement was as follows: Two of the craft were lashed,...