bark which she struck was made to bear half the damage for not blowing a fog-horn.1

Judgment against the owner for collision, cannot exceed the value of the ship, if he has abandoned her to the libellants." Even if he has not abandoned, he is not liable beyond his interest in ship and cargo, for any loss occasioned without his privity. 3

The libellee cannot, in the Supreme Court, set up, against the libellant, damages incurred from the latter, by way of recouping, when such pleading had not been made in the lower courts, though the libellant has been allowed to urge grounds not alleged in his libel.5

4

$ 520. Defenses, Etc. Payment of total loss by underwriters to the libellants, is not a good defense to an action for collision."

A defense to a libel for collision, "that the injured vessel lay in an improper manner and in an improper place," is too indefinite." An action in rem for collision cannot be successfully defended by the claimant's proving the damage to have occurred when the vessel at fault was under charge of a pilot in conformity with statute.8

Negligence cannot be inferred from the fact that a vessel was on fire: it must be proved. It is no defense that the collision was caused by a hurricane, if it could have been avoided. 10

The Supreme Court presume in favor of a decree in an admiralty case, in which both the lower courts have concurred. 11 The finding of facts by the Circuit Court, in an admiralty case, is conclusive upon the Supreme Court, since May 1, 1875, when the act of Congress so providing, went into effect; this

1 The Pennsylvania, 19 Wall. 125. 2 Norwich Co. v. Wright, 13 Wall. 104; Act March 3, 1851, (9 Stat. at L., 635,) §§ 1, 3, 4, 6.

The Atlas, (3 Otto,) 93 U. S. 302; The Benefactor, 103 U. S. 239; Rev. Stat. § 4283.

The Sapphire, 18 Wall. 51.

5 The Steamer Syracuse, 12 Wall. 167.

The Monticello, 17 How. 152.

43.

7 The Commander-in-Chief, 1 Wall.

8 The Merrimac, 14 Wall. 199. The Buckeye, 7 Bissell, 23. 10 The Thule, 3 Woods, 670; The Louisiana, 3 Wall. 164; The Merrimac, 14 Id. 199. But, see The Morning Light, 2 Wall. 550; The James Gray, 21 How. 184.

"The Wheeler, 20 Wall. 385.

rule was applied in a case where the facts showed a steamer at fault when colliding with two schooners.1

The Supreme Court have gone outside of the libel to find the immediate cause of action. And they have allowed a steamtug to appeal from the Circuit Court, from a decree against her in which she had acquiesced by not appealing from the District Court to the Circuit Court. "Objection is made," Mr. Justice CLIFFORD said, "that the owners of the steam-tug could not properly appeal to this court, as they did not formally appeal from the District Court to the Circuit Court, but it is not necessary to decide that question, as it is quite clear that the decree must be affirmed against the tug as well as the tow. Nor is the court prepared to admit the validity of the objection, as the record shows that the owners of the tow signed a written stipulation before the decretal order was entered in the District Court, that they, as the owners of the ship, [the tow,] would assume the entire conduct of the defense, and that they would answer and pay whatever sum the libellants should recover in the case against both vessels. Undoubtedly, the general rule is, that a party who does not appeal cannot be heard in opposition to the decree. Still, it appears in this case that an appeal from the District Court to the Circuit Court, was taken from the entire decree, and by a party who represented the entire interest of the losing party in the suit. Well founded doubt, may, perhaps, arise as to the regularity of the proceeding, but it is not necessary to solve that doubt in the present case. Suppose the appeal is correctly here, we are all of the opinion that the decree of the court below was correct."3

But, suppose the judges had been all of the opinion that the decree was wrong: could they have reversed it so far as concerns its final judgment against the tug? Could the tug delegate its defense and appeal to a co-defendant, from the District to the Circuit Court, and then resume the litigous character at the following stage? Are we to understand, in this case, the Su

1 The Abbottsford, (8 Otto,) 98 U. S. 440; The Adriatic, 103 U. S. 730.

2 The Steamer Syracuse, 12 Wall.

167.

The Mabey and the Cooper, 14 Wall. 204, 214.

preme Court decision, "Decrees Affirmed," as having reference to the decree of the District Court against the tug from which no appeal had been taken by the tug? More than one decree was affirmed; yet but one had been appealed from the District Court,

CHAPTER XLIX.

OTHER MARINE TORTS.

The Lien Maritime in the Absence of an Admiralty Rule.. 521 State Liens for Marine Torts ... 522 Rank of the Lien...... 523 Various Causes of Action...... 524 Causes "Civil and Maritime,"

Necessarily on the Instance Side of the Admiralty ... 525 Limitation of the Owner's Liability for Torts of the Master and Vessel.

526

S521. The Lien Maritime in the Absence of an Admiralty Rule. In the case of The Panama, in which there was judg ment and exemplary damages, in the sum of fifteen thousand dollars, against that steamship in a proceeding in rem, for the breaking of the libellant's leg, (she being a passenger and hav ing fallen down an open hatchway,) the Supreme Court, (to which the cause had been brought from a territorial court of Washington Territory, sitting in admiralty,) said: "Injuries of the kind alleged give the party a claim for compensation, and the cause of action may be prosecuted by a libel in rem against the ship; and the rule is universal that if the libel is sustained, the decree may be enforced in rem, as in other cases where a maritime lien arises. These principles are so well known and so universally acknowledged that argument in their support is unnecessary."

The case turned upon the jurisdiction of the territorial courts to try admiralty causes; and the court held that it was co-extensive with the District Courts of the United States, when fully conferred by Congress; and added: "Maritime cases, in every form of admiralty proceeding, have been heard and determined in the territorial district courts, and, by appeal, in the supreme courts of the territories. And they cited several

1 The Panama, (11 Otto,) 101 U. S. 453; The Kirkland, 3 Hughes, 641.

territorial decisions in admiralty; and an unreported decision of the United States Supreme Court upon an admiralty decision in a territory.

4

The Supreme Court have thus fully recognized the lien against a vessel for tort as a maritime lien under the general law, for we look in vain in their prescribed rules of admiralty practice, and in the statutes of Congress, to find any special creation of the lien. The only mention in the rules is that which confines one species of action for tort-assault and battery,-to the personal remedy, unless we turn to Rule 23, concerning the titles of causes, in which it is prescribed: "All libels in instance causes, civil or maritime, shall state the nature of the cause; as, for example, that it is a cause civil and maritime, of contract, or of tort or damage, or of salvage, or of possession, or otherwise, as the case may be; and if the libel be in rem, that the property is within the district," etc. Thus, we see— conceding the right to give or withhold maritime remedies by rules that the action in rem for tort is limited to torts other than assaults and beatings; and that it is not at all expressly, but only impliedly recognized by the rules, in such other cases. Were the strict adherence to court rules which is evinced with regard to the action of material men for repairs and supplies to vessels in home ports, maintained with respect to the action of "tort and damage," the latter might possibly be ruled out of court as not authorized by United States maritime law, though fully authorized by unqualified maritime law. Much of the reasoning in the case of the Lottawanna would plausibly apply.

But, so firmly is this remedy intrenched, as concerns the "cause of tort, civil and maritime," that the Supreme Court have pointedly said, (the particular cause of action being that a steamship had broken a lady's leg by reason of having an open hatchway into which the libellant had fallen,) "The rule

1 Cutter v. Steamship, 1 Oregon Rep. 101; Price v. Frankel, 1 Wash. T. 43; The Steamship Northerner, Id. 91; Griffin v. Nichols, Id. 375; The City of Panama, Id. 320. See Brunswick Bank v. Yankton Co., 101 U. S. 129.

2 Steamship Northerner v. Steamtug Resolute, Dec. Term, 1863, U. S. Sup. Ct.

3 Rule 16.

Evidently meaning "civil and maritime."

5 Ante, Chap. xliii.