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Opinion of the court.

extent contradictory, in order to vindicate our views concerning it. It would serve no useful purpose to do so, and we shall content ourselves with applying the law to a state of facts which we consider the evidence establishes, without any attempt to discuss it. The libel was not filed to recover damages for the breach of a contract, as is contended, but to obtain compensation for the commission of a tort. It is true it asserts a contract of towage, but this is done by way of inducement to the real grievance complained of, which is the wrong suffered by the libellant in the destruction of his boat by the carelessness and mismanagement of the captain of the Quickstep. It is objected that the libel is too general in its terms, and is defective because it does not state the particular acts of negligence and misconduct on the part of the tug which produced the injury; but if this were necessary, the objection should have been interposed at an earlier stage of the proceedings, and cannot be taken, for the first time, after the cause has reached this court. It is always better to describe the particular circumstances attending the transaction; but in admiralty an omission to state some facts which prove to be material, but which cannot have occasioned any surprise to the opposite party, will not be allowed to work any injury to the libellant, if the court can see there was no design on his part in omitting to state them.*

We now pass to the facts of the case.

The inquiry is, who is to blame for what has happened? Clearly not the Citizen, for it does not appear that her conduct in any way contributed to the accident. If the tug, in constructing the tow, used the lines furnished by the different boats, yet as each boat was independent of the other, no responsibility can attach to either for the breaking of the line, which she did not provide, and had nothing to do with making fast. In this case neither the bridle-line nor the line that first parted were supplied by the Citizen, and she ought not to suffer for their insufficiency. It is well settled that canal-boats and barges in tow are considered as being

* The Clement, 2 Curtis, 369.

Opinion of the court.

under the control of the tug, and the latter is liable for this collision, unless she can show it was not occasioned by her fault.*

It was the duty of the tug, as the captains of the canalboats had no voice in making up the tow, to see that it was properly constructed, and that the lines were sufficient and securely fastened. This was an equal duty, whether she furnished the lines to the boats, or the boats to her. In the nature of the employment, her officers could tell better than the men on the boats what sort of a line was required to secure the boats together, and to keep them in their positions. If she failed in this duty she was guilty of a maritime fault. The parting of the line connecting the boat in the rear on the port side with the fleet, was the commencement of the difficulty that led to this accident. In the effort to recover this boat the consequences followed which produced the collision. If it was good seamanship on the part of the captain of the tug to back in such an emergency, he was required, before undertaking it, at least to know that his bridle-line would hold. And if the sea was in the condition the captain of the tug says it was, it was bad management to back at all. Whether this be so or not, he was bound, in executing a manœuvre to recover the detached boat, to look to it that no other boat in the fleet suffered in consequence of it.

But the claimants of the tug deny that their vessel was in fault, and insist that the disaster occurred by the violence of the storm and gale of wind which prevailed at the time. If this be so, how did it happen that two of the canal-boats that got loose from the fleet survived the perils of that night? One of these boats anchored, and was saved without difficulty; the other, loaded with iron, drifted about and was picked up the next morning without having sustained any damage. The fact that these boats did not experience any bad effects from the severity of this storm explodes the theory advanced by the claimants on the subject.

* The Express, 1 Blatchford, 365; Steamboat New York v. Rea, 18 Howarl, 223.

Statement of the case in the opinion.

In our opinion the tug was clearly in fault, and the courts below, in dividing the damages, doubtless came to the conclusion that the men on board the Citizen were also to blame for deserting their boat sooner than good seamanship under the circumstances required. As the libellant did not appeal, and can, therefore, only be heard in support of the decree, we are not required to consider whether the evidence convicts the canal-boat of fault.* The appellants have no right to complain, for in any aspect of the case they cannot escape without paying at least half the loss.

JUDGMENT Affirmed.

THE SYRACUSE.

A large steamer, without tows or other incumbrance, approaching near to smaller ones with tows, under circumstances where collision is liable to occur, is bound to move with caution. She is mistress of her course and motions, and stands in a position of advantage over the others. These have not full power over themselves. Seventeen miles an hour, in such a situation, is too great a rate of speed for the larger and freer vessel to be moving at among vessels having tows.

THIS was an appeal in admiralty from the decree of the Circuit Court for the Southern District of New York, which, on a libel filed by the owners of the steamer Rip Van Winkle, against the steam tow-boat Syracuse, for a collision, had held the complaining boat itself in fault, and the tug-boat not liable.

Messrs. McMahon and Hoar, for the appellant; Mr. Benedict, contra.

Mr. Justice SWAYNE stated the facts and delivered the opinion of the court. Both will be better understood by reference to a diagram by the reporter on the next page. The steamer Rip Van Winkle, a freight and passenger

The William Bagaley, 5 Wallace, 412.

Statement of the case in the opinion.

boat, left New York for Troy, heavily laden, on the evening of the 15th of May, 1866. About 2 o'clock the next morning she reached a point in the river opposite to Brandow's Hollow. There, three boats above were plainly in view to her, and she was as plainly in view to them. They were all tow-boats with barges attached, and were the Johnson, the Arnold, and the Syracuse. The Arnold was on the east side of the river, and going up. The Johnson was on the west

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side, going down, and was as near to the flats as it was safe for her to go. The Syracuse was on the west side, and also descending. She had in tow, lashed to her, on the port side, the heavy ice barge Colgate. The Roberts, a light barge, was attached to her in like manner on the starboard side. The speed of the Johnson was less than that of the Syracuse. The Johnson had nine tows, attached by a hawser about

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Statement of the case in the opinion.

four hundred and fifty feet long. The Syracuse made a sheer and passed the hawser-tier of the Johnson, and lapped her about fifteen feet on the east side. About this time the Rip Van Winkle blew a long whistle as a signal that she intended to pass them to the eastward. They blew their whistles in response and assent. The speed of the steamer was seventeen miles an hour. The distance of the Syracuse and the steamer from each other when their whistles blew was probably about half a mile. The usual course of ascending steamers at that point, and the one which the Rip Van Winkle proposed to pursue, was diagonally across the river from the west to the east side. Teason was the pilot in charge of the steamer, and we give the occurrences which grew out of this movement as he states them. He says:

"We passed the Johnson, and on her starboard side was the Arnold, bound up with a tow. I went close to his hawser-tier, and probably within fifty or seventy-five feet. The tide being flood-tide, and the wind southeast, he was working to the windward, and the tier tailed off from him, so that I did not go as close to the Arnold as I did to his hawser-tier. I went off from the Arnold probably one hundred and fifty feet, may be not as far as that, and just as I got abreast, or just before I got abreast of the Arnold, the steamer Syracuse, bound down, on our larboard hand, altered her course before I got to the Arnold, and came right head towards us. I didn't slow the boat nor I didn't stop her. . . . I let her keep her regular gait. . . . I thought I could outrun her when I saw her coming. I thought, in the position she was, I could get by her, and I hove my wheel over aport, and that took us hard off more to the eastward. I thought I would let her get as far to the eastward as I could, and did so. Then the Syracuse hit us . . . on the starboard side, just aft of the forward gangway. It was the barge that she had alongside that hit us-hit us with the bluff of her bow, right on the turn of her bow. We were heading to the east, and she struck us right aft of the forward gangway, and forward of the paddle-box, and after she struck us it carried away our deck-beams, and side-house, and water-wheel, and the like of that; that disabled our engine, and then we drifted, till in time we drifted ashore, or we let our anchor go before we got

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