CLIFFORD, Circuit Justice.
Actions pending in a federal court, whether two or more, of like nature, or relative to the same question, may be consolidated if the court deems it reasonable, in order to avoid unnecessary costs, or to prevent delay. [Act of 1813] 3 Stat. 21; Rev. St. § 977; Conk. Pr. (4th Ed.) 363.
Two libels were filed in the district court by the libellant, as the owner of the schooner Alpine, one against the steam-tug Burke, and the other against the steam-tug Glide, each in a cause of collision, in which the libellant claimed damages for the destruction of the schooner, and for the loss of the stores, utensils, and working apparatus which she had on board at the time she sank.
Sufficient appears to show that the schooner was employed in freighting stone for the construction of the sea-wall in Boston harbor, and that prior to the collision, on the morning of the 16th of October, 1876, she had discharged her cargo and hauled out of the dock and come to anchor under the lee of the wall, leaving space enough to allow the next vessel in turn to pass into the vacated berth for the discharge of a similar cargo.
What the libellant alleges, in the case of the Burke, is that while the schooner was thus lying safely at anchor, the steam-tug. without authority, came alongside and made fast to the schooner, and commenced hauling upon her, and continued so to do, until by reason of the injuries so inflicted the schooner sank and became a total loss.
Service was made, and the owners of the steam-tug appeared and filed an answer denying the allegations of the libel. They also set up the defence that the steam-tug was sent to the schooner to remove her from fouling the powder-boat anchored in the harbor for the deposit and safe-keeping of powder; that the schooner was found caught between her rudder and stern-post by the cable or mooring-chain of the powder-boat which was kept moored there to receive deposits of powder manufactured by the powder company; and they also allege that the schooner had drifted from her anchorage while she was abandoned by her officers [738]*738and crew, and that she was without an anchor-watch, in violation of the city ordinance. Under those circumstances, the claimants admit, that the steam-tug made fast to the schooner for the purpose of extricating the vessel from entanglement with the mooring-chain of the powder-boat, but they aver that the steam-tug used all due care and skill in her endeavors to accomplish that purpose; and they also allege that those in charge of the steam-tug were successful in relieving the schooner, and that they used no more force than the peculiar circumstances required.
Charges of a similar character are also made against the steam-tug Glide, to the effect following, that on the succeeding day she steamed up to the schooner and made fast to her without authority, and that she continued to haul upon the schooner until she broke her to pieces, rendering the vessel, her tackle, apparel, and furniture, , valueless, and that she destroyed the stores, utensils, and working apparatus, which the schooner had on board at the time the alleged unlawful acts were committed.
Due service was also made in this suit, and the owners of the steam-tug appeared and filed an answer. They deny the alleged injuries to the schooner, but admit that the steam-tug went to the relief of the schooner to remove her from fouling the powder-boat moored in the harbor, and allege that the schooner was found on her beam-ends mostly under water, so near to the powder-boat that both vessels were in imminent danger; that the schooner was abandoned by her officers and crew, and that those in charge of the steam-tug used due care, skill, and precaution, in their endeavors to relieve the schooner, and that they succeeded in that behalf without doing serious injury to the vessel, or using more force than the circumstances required.
Both cases were heard together in the district court, and the court there entered a decree and order to the effect that both parties in each case were in fault, and that the damages sustained by the libellant in each case should be divided, sending both causes to a master to compute the amount. Prompt report was made by the master, to which the respondents excepted for the reasons stated in the record, but the court overruled the exceptions and entered a final ■decree in the case of the steam-tug Burke, that the libellant do recover the sum of $180.10 damages, and one-fourth of the aggregate of costs in the two cases, amounting to $84.27. Half damages were also recovered by the libellant in the case of the steam-tug Glide, and the court entered a decree in that case at the same time in favor of the libellant for the same amount of damages and costs as m the other case.
Seasonable appeal was taken by the respondents in each case to the circuit court. Separate, hearings in the respective cases were granted here, but inasmuch as the two cases were heard together in the district court, and the exceptions to the master’s report are joint, only one opinion will be given in the two appeals.
Beyond all doubt the two cases might have been consolidated, as the respective causes of action are of a like nature, and involve substantially the same questions, nor have the respondents any right to complain that the master embraced both cases in one report, as the record shows that they joined in their exceptions to the same, without making any objection, in the exceptions, that the two cases had not been separately considered by the master. Coming to the .merits, the evidence shows to the satisfaction of the court that the schooner discharged her cargó as alleged in the respective libels, and that she came to anchor under the lee of the sea-wall, probably within the sweep of the mooring-chains attached to the powder-boat.
Prior to the collision, and during the forenoon of that day, the wind was from the northwest, blowing a fresh breeze, and the evidence is full to the point that the schooner became entangled in the mooring-chain of the powder-boat, or, in other words, the mooring-chain of the powder-boat got between the rudder and the stern-post of the schooner. Differences of opinion exist among the witnesses as to whether the schooner was, or was not, in much danger; nor is it of much importance to ascertain which of the two theories is correct, as all appear to concur that it was quite proper that the schooner should be extricated from her entanglement with the powder-boat’s mooring-chain. When the collision occurred, neither the officers nor the men were on board the schooner, and she was without an anchor-watch on deck, but workmen employed there were in sight of the vessels, and one of them testifies that he instructed some of the men to get lines and go to her relief.
Suffice it to say, in this respect, that the evidence, taken as a whole, shows, beyond all reasonable doubt, that the charge of the libel in the case of the Burke is true; that she went alongside of the schooner, and made fast to her, without authority, and commenced hauling upon her while she was held by the mooring-chain of the powder-boat with which she was caught between her rudder and stern-post, as more fully explained in the record.
Entangled as the schooner was with the mooring-chain of the powder-boat, it was plainly a rash act to undertake to pull her clear of the mooring-chain by swinging her from starboard to port, as the attempt was made, as shown by the evidence. Difficult as the attempt was, still the proofs show that the effort was continued until it was accomplished, but that the schooner immediately sank.
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CLIFFORD, Circuit Justice.
Actions pending in a federal court, whether two or more, of like nature, or relative to the same question, may be consolidated if the court deems it reasonable, in order to avoid unnecessary costs, or to prevent delay. [Act of 1813] 3 Stat. 21; Rev. St. § 977; Conk. Pr. (4th Ed.) 363.
Two libels were filed in the district court by the libellant, as the owner of the schooner Alpine, one against the steam-tug Burke, and the other against the steam-tug Glide, each in a cause of collision, in which the libellant claimed damages for the destruction of the schooner, and for the loss of the stores, utensils, and working apparatus which she had on board at the time she sank.
Sufficient appears to show that the schooner was employed in freighting stone for the construction of the sea-wall in Boston harbor, and that prior to the collision, on the morning of the 16th of October, 1876, she had discharged her cargo and hauled out of the dock and come to anchor under the lee of the wall, leaving space enough to allow the next vessel in turn to pass into the vacated berth for the discharge of a similar cargo.
What the libellant alleges, in the case of the Burke, is that while the schooner was thus lying safely at anchor, the steam-tug. without authority, came alongside and made fast to the schooner, and commenced hauling upon her, and continued so to do, until by reason of the injuries so inflicted the schooner sank and became a total loss.
Service was made, and the owners of the steam-tug appeared and filed an answer denying the allegations of the libel. They also set up the defence that the steam-tug was sent to the schooner to remove her from fouling the powder-boat anchored in the harbor for the deposit and safe-keeping of powder; that the schooner was found caught between her rudder and stern-post by the cable or mooring-chain of the powder-boat which was kept moored there to receive deposits of powder manufactured by the powder company; and they also allege that the schooner had drifted from her anchorage while she was abandoned by her officers [738]*738and crew, and that she was without an anchor-watch, in violation of the city ordinance. Under those circumstances, the claimants admit, that the steam-tug made fast to the schooner for the purpose of extricating the vessel from entanglement with the mooring-chain of the powder-boat, but they aver that the steam-tug used all due care and skill in her endeavors to accomplish that purpose; and they also allege that those in charge of the steam-tug were successful in relieving the schooner, and that they used no more force than the peculiar circumstances required.
Charges of a similar character are also made against the steam-tug Glide, to the effect following, that on the succeeding day she steamed up to the schooner and made fast to her without authority, and that she continued to haul upon the schooner until she broke her to pieces, rendering the vessel, her tackle, apparel, and furniture, , valueless, and that she destroyed the stores, utensils, and working apparatus, which the schooner had on board at the time the alleged unlawful acts were committed.
Due service was also made in this suit, and the owners of the steam-tug appeared and filed an answer. They deny the alleged injuries to the schooner, but admit that the steam-tug went to the relief of the schooner to remove her from fouling the powder-boat moored in the harbor, and allege that the schooner was found on her beam-ends mostly under water, so near to the powder-boat that both vessels were in imminent danger; that the schooner was abandoned by her officers and crew, and that those in charge of the steam-tug used due care, skill, and precaution, in their endeavors to relieve the schooner, and that they succeeded in that behalf without doing serious injury to the vessel, or using more force than the circumstances required.
Both cases were heard together in the district court, and the court there entered a decree and order to the effect that both parties in each case were in fault, and that the damages sustained by the libellant in each case should be divided, sending both causes to a master to compute the amount. Prompt report was made by the master, to which the respondents excepted for the reasons stated in the record, but the court overruled the exceptions and entered a final ■decree in the case of the steam-tug Burke, that the libellant do recover the sum of $180.10 damages, and one-fourth of the aggregate of costs in the two cases, amounting to $84.27. Half damages were also recovered by the libellant in the case of the steam-tug Glide, and the court entered a decree in that case at the same time in favor of the libellant for the same amount of damages and costs as m the other case.
Seasonable appeal was taken by the respondents in each case to the circuit court. Separate, hearings in the respective cases were granted here, but inasmuch as the two cases were heard together in the district court, and the exceptions to the master’s report are joint, only one opinion will be given in the two appeals.
Beyond all doubt the two cases might have been consolidated, as the respective causes of action are of a like nature, and involve substantially the same questions, nor have the respondents any right to complain that the master embraced both cases in one report, as the record shows that they joined in their exceptions to the same, without making any objection, in the exceptions, that the two cases had not been separately considered by the master. Coming to the .merits, the evidence shows to the satisfaction of the court that the schooner discharged her cargó as alleged in the respective libels, and that she came to anchor under the lee of the sea-wall, probably within the sweep of the mooring-chains attached to the powder-boat.
Prior to the collision, and during the forenoon of that day, the wind was from the northwest, blowing a fresh breeze, and the evidence is full to the point that the schooner became entangled in the mooring-chain of the powder-boat, or, in other words, the mooring-chain of the powder-boat got between the rudder and the stern-post of the schooner. Differences of opinion exist among the witnesses as to whether the schooner was, or was not, in much danger; nor is it of much importance to ascertain which of the two theories is correct, as all appear to concur that it was quite proper that the schooner should be extricated from her entanglement with the powder-boat’s mooring-chain. When the collision occurred, neither the officers nor the men were on board the schooner, and she was without an anchor-watch on deck, but workmen employed there were in sight of the vessels, and one of them testifies that he instructed some of the men to get lines and go to her relief.
Suffice it to say, in this respect, that the evidence, taken as a whole, shows, beyond all reasonable doubt, that the charge of the libel in the case of the Burke is true; that she went alongside of the schooner, and made fast to her, without authority, and commenced hauling upon her while she was held by the mooring-chain of the powder-boat with which she was caught between her rudder and stern-post, as more fully explained in the record.
Entangled as the schooner was with the mooring-chain of the powder-boat, it was plainly a rash act to undertake to pull her clear of the mooring-chain by swinging her from starboard to port, as the attempt was made, as shown by the evidence. Difficult as the attempt was, still the proofs show that the effort was continued until it was accomplished, but that the schooner immediately sank. Considerable injury must have been [739]*739inflicted upon the schooner, as it appears, in extricating her from the mooring-chain, the steam-tug pulled out the dead-wood in the stern of the schooner, which in vessels of that construction is a part of the frame of the vessel. Vessels constructed in that way are unusually strong, as the dead-wood and ■cutwater are a part of the frame, so that when the dead-wood was pulled out it left a hole in the vessel which caused her to sink, lying on her beam ends, and with her masts to the southeast, the upper side of the vessel toeing just above the water.
Viewed in the light of the whole evidence, nhe district judge was of the opinion. that •Doth parties were in fault That the sehoon■er was in fault because she came to anchor too near to the powder-boat; and that the Burke was in fault because she was wanting in due care in her endeavors to extricate the •schooner from her entanglement with the mooring-chains of the powder-boat and I am •of the opinion that the district judge was •correct in both of these conclusions.
Whether any efforts were made by the Burke to raise or rescue the schooner from the place where she sank does not appear, but it does appear that she remained there until the following day, when the steam-tug ■Glide, without authority, made fast to her by a hawser for the purpose of removing her to some less exposed locality. Those in charge of the steam-tug made fast, in the first place, to one of the aft timber-heads of the schooner; but immediately when they got a strain on the sunken schooner the timber-head gave way, and then they made fast to the lower part of the mast, and hauled the wreck up ■on to the flats, where they left her in a damaged condition, with her sails loose and tom, her hatches gone, her mast damaged, her ■cabin furniture, stores, and outfit gone, as more fully set forth in the testimony.
Hearing was had in this case before the ■district judge at the same time the other ■ease was heard, and he came to the conclusion that both parties were also at fault in this case, and I am clearly of the same opinion, and for the same reasons as those given in the case of the Burke.
Common prudence dictated that the schooner should not anchor within the sweep of the powder-boat’s mooring-chain; and it is equally plain that the steam-tugs, if one or both volunteered the effort to extricate her, should use ordinary care and skill in any attempt they, or either of them, might make to accomplish that purpose. Much stress is laid upon the fact that neither the master nor crew of the schooner were on board at the time the respective tugs made fast to the schooner, but it is manifest that those in charge of the respective tugs knew well enough that the schooner was not abandoned, and that they could easily have found the master and crew or the owners of the schooner, if they had desired any information upon the subject
Joint exceptions were filed by the claimants in the two cases to the report of the master in respect to the damages, to the effect following:—
1. That loss which could have been prevented by ordinary maritime skill and care on the part of the libellant and crew, after notice of the disaster, are not recoverable against the claimants.
2. That the evidence shows wanton and reckless neglect of plain duty on the part of the libellant and crew in omitting to care for the schooner during the rise and fall of two tides, after they had notice of the alleged wrongful acts of the two steam-tugs.
Argument to show that the schooner was in fault is unnecessary, nor are any authorities necessary in such a case to support the proposition that the libellant can only recover a moiety of the damages, however much the respondents may have violated maritime rules. Though in fault, the' libellant may recover a moiety of the damage if the other party was also in fault; nor can the libel-lant here recover more than that, in any view, as he did not appeal from the decree of the district court, where the damages were divided between the parties.
Common-law authorities, which show that a plaintiff who is guilty of contributory negligence cannot recover compensation for injuries received are not applicable in the case, the rule being well settled in the admiralty court that where both parties are in fault the damage done to both vessels should be added together, and the combined amount should be. equally divided between the two. The Atlas, 93 U. S. 310; De Vaux v. Salvador, 4 Adol. & El. 431.
Loss which might reasonably have been prevented after notice of a collision, should not be allowed, but that rule is no answer to a claim for damages inflicted before the notice was given or received. Such an exception without any specification of the disputed items is hardly sufficient, but the decision is not placed upon that ground. Instead of that, the master’s report has been examined, and it is not perceived that it furnishes any just pretext for the complaint involved in the second exception. The fact that the schooner was without an anchor-watch affords no defence to the claimants for the failure to exercise due care and skill in their efforts to extricate the schooner from the mooring-chain of the powder-boat For these reasons I am of the opinion that the decision of the district judge in the two cases is in all respects correct, and that the respective decrees should be affirmed. Decree affirmed in each case, with costs.