HUGHES, District Judge.
The original libel in this case, filed on the 24th of April, 1882, by the owners of the cargo and their insurers, claims damages for tort charged to have been committed by the ma ster and crew of the James Martin, in having cut away her masts, [652]*652and cut holes in her hull, and abandoned her to perish at sea. The amended libel, filed at the hearing, claims damages from the failure of the master and crew to bring the vessel into port, because of bad seamanship and the.unseaworthiness of the vessel. The owners make a cross claim for the freight contracted to be paid on the cargo. When the schooner was brought into Norfolk, on the 24th of March last, her master and crew were under grave suspicion of having dismasted and scuttled their vessel and deserted her at sea. When, on the day before, the steamer John Hopkins, from Boston for Baltimore, came in sight of them, and took the whole crew of the schooner on board, the master so impressed Capt. Hallett with the belief of the hopeless plight of the schooner alleged to be leaking and sinking that he came away, and brought her crew off, without deeming it worth while to make any examination into the true condition of things., When, 24 hours afterwards, the steamer William Crane, from Baltimore and Norfolk for Boston, came near the schooner Martin, she was found not to be seriously leaking, and not to be sinking; and Capt. Howe, of the Crane, found no difficulty in doing, in the absence of the schooner’s master and mate, what Capt. Hallett had not done when they were present. He took the schooner in tow, reversed his own trip, and brought her back to Norfolk. When the schooner arrived here she was found to have a hole cut in her deck, in its lowest bend downwards, nearest the water, about midships, and the scupper near it was found to be plugged up with rags. On being taken to Richmond, and unloaded of her cargo, the latter was found to have received its principal damage from water in that part lying just under this hole in the deck, — a fact which indicated that the water causing this damage had come in through this hole while the schooner was in a position to be swept over by the sea; this latter fact indicating that the hole had been cut in the deck while the schooner was out at sea, sometime before she was brought within the capes of the Chesapeake. Mr. Matthews, one of the part owners, claimants, and respondents, was in Richmond about the time the Martin was taken up there, and negotiated a dismissal of the libel for salvage which had been put upon the schooner here on her first arrival in Norfolk. He could not have failed to hear at Richmond, the charges against the master and mate of the schooner, which are embodied in the original libel before me. He must have appreciated the importance to the reputation of these two officers, and to the character of the schooner’s owners, especially of William H. Browne, of meeting these charges by the evidence of the entire crew of the Martin, and by the evidence of all on board of the three-masted schooner with which he states she had been in collision on the night of the 22d of March, 1882. Naturally this court had a right to expect that all the crew of the Martin would have been examined in such a case as this. Yet only three of them have been examined, and the failure to examine the rest is wholly unaccounted for, although it is in proof that one of those others was for some time in a hospital at Norfolk. Such an omission, unaccounted for, in cases like this, has always ■been looked upon by admiralty courts as prejudicial to the case of [653]*653tlie vessel charged to be at fault. Moreover, the witnesses actually examined are those least disinterested in the suit. The part owner, whose interest in a schooner 25 years old is insured, and who did not make this particular voyage with his vessel as master, telegraphed from Boston for a temporary substitute, and sends this substitute on this voyage as temporary master; this part owner’s brother being mate. This temporary master and this mate are the only persons examined of this crew, except a steward, who seemed to have been always below deck asleep, who insisted that he knew nothing, not even the names of his companions of the crew, and whose intelligence was probably as dark as he represented it to be. Again, it was of the highest importance to the case of the respond-en! s in this court that they should have libeled the three-masted schooner with which they claim the Martin to have been in collision off Gape May, — if for no other purpose, at least to establish the fact of collision, and to show that the fault was not that of the master and crew of the Martin. The evidence before me is wholly ex parte as to that other vessel, and the testimony of the crews of vessels which have been in collision is proverbially unreliable. The testimony of the crews of each of these two vessels as to that collision ought to have been taken under oath and under cross-examination; otherwise it would have been, in that litigation, worthless. How can it be any better in this, where it is the whole truth that is essential to the formation of a just conclusion. But although the owners of the Martin themselves testify that they had abundant opportunity to libel the three-masted schooner, which they called the “William H. Baily of New York.” yet they have not done so. In Boston they tried to maneuver with the master of the alleged schooner, to induce him to get out of the way of their libel. They could have libeled her during several days whale lying at or near Boston. They told her master that they had arranged to libel her after a certain fast day, and to get his vessel readv. and (hey say he went off with his schooner before they got their libel out. If, therefore, these people have a good case, they have failed to support it with the evidence most necessary and proper for its vindication; that is to say, they have omitted to examine three of their own crew to sustain the statements alleged in their defense, and these three were the men who were wholly disinterested in the result of the suit. They have not libeled the schooner which they claimed to have collided with, nor examined any of her crew as to the'alleged collision, although they insist that in this collision originated the disaster to their vessel. Nor have they accounted for these omissions. When we come to examine the testimony of their own master and mate as to the causes of the misfortunes of the schooner Martin, their explanations prove to be radically unsatisfactory. They say they were running southward, abreast of, and six miles off from, Cape May, on the night of the collision, with wind W. N. W. (when it was two points abaft their beam), and that they were closehauled and on the starboard tack. They say that the three-masted schooner was standing northward with wind W. N. W. [654]*654at that time, and yet that she was sailing with a free wind, and on a port tack. These statements are, by physical and mathematical necessity, untrue. Moreover, these officers say that the vessels collided by the Baily’s starboard bow running into thé Martin’s port bow; and Mr. Matthews testifies that the port bow of the Martin, as he saw it at Richmond, was rubbed and abraded, and that the starboard bow of the Baily, as he saw her in Boston, was likewise rubbed and bruised, and that he saw a workman obliterating the mark or bruise on the Baily. Now, it is absolutely impossible that such a collision could have occurred between these two vessels, unless one or the other of them had entirely reversed her course; and there is no mention or intimation of such a reversal in the testimony of either the master or mate of the Martin.
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HUGHES, District Judge.
The original libel in this case, filed on the 24th of April, 1882, by the owners of the cargo and their insurers, claims damages for tort charged to have been committed by the ma ster and crew of the James Martin, in having cut away her masts, [652]*652and cut holes in her hull, and abandoned her to perish at sea. The amended libel, filed at the hearing, claims damages from the failure of the master and crew to bring the vessel into port, because of bad seamanship and the.unseaworthiness of the vessel. The owners make a cross claim for the freight contracted to be paid on the cargo. When the schooner was brought into Norfolk, on the 24th of March last, her master and crew were under grave suspicion of having dismasted and scuttled their vessel and deserted her at sea. When, on the day before, the steamer John Hopkins, from Boston for Baltimore, came in sight of them, and took the whole crew of the schooner on board, the master so impressed Capt. Hallett with the belief of the hopeless plight of the schooner alleged to be leaking and sinking that he came away, and brought her crew off, without deeming it worth while to make any examination into the true condition of things., When, 24 hours afterwards, the steamer William Crane, from Baltimore and Norfolk for Boston, came near the schooner Martin, she was found not to be seriously leaking, and not to be sinking; and Capt. Howe, of the Crane, found no difficulty in doing, in the absence of the schooner’s master and mate, what Capt. Hallett had not done when they were present. He took the schooner in tow, reversed his own trip, and brought her back to Norfolk. When the schooner arrived here she was found to have a hole cut in her deck, in its lowest bend downwards, nearest the water, about midships, and the scupper near it was found to be plugged up with rags. On being taken to Richmond, and unloaded of her cargo, the latter was found to have received its principal damage from water in that part lying just under this hole in the deck, — a fact which indicated that the water causing this damage had come in through this hole while the schooner was in a position to be swept over by the sea; this latter fact indicating that the hole had been cut in the deck while the schooner was out at sea, sometime before she was brought within the capes of the Chesapeake. Mr. Matthews, one of the part owners, claimants, and respondents, was in Richmond about the time the Martin was taken up there, and negotiated a dismissal of the libel for salvage which had been put upon the schooner here on her first arrival in Norfolk. He could not have failed to hear at Richmond, the charges against the master and mate of the schooner, which are embodied in the original libel before me. He must have appreciated the importance to the reputation of these two officers, and to the character of the schooner’s owners, especially of William H. Browne, of meeting these charges by the evidence of the entire crew of the Martin, and by the evidence of all on board of the three-masted schooner with which he states she had been in collision on the night of the 22d of March, 1882. Naturally this court had a right to expect that all the crew of the Martin would have been examined in such a case as this. Yet only three of them have been examined, and the failure to examine the rest is wholly unaccounted for, although it is in proof that one of those others was for some time in a hospital at Norfolk. Such an omission, unaccounted for, in cases like this, has always ■been looked upon by admiralty courts as prejudicial to the case of [653]*653tlie vessel charged to be at fault. Moreover, the witnesses actually examined are those least disinterested in the suit. The part owner, whose interest in a schooner 25 years old is insured, and who did not make this particular voyage with his vessel as master, telegraphed from Boston for a temporary substitute, and sends this substitute on this voyage as temporary master; this part owner’s brother being mate. This temporary master and this mate are the only persons examined of this crew, except a steward, who seemed to have been always below deck asleep, who insisted that he knew nothing, not even the names of his companions of the crew, and whose intelligence was probably as dark as he represented it to be. Again, it was of the highest importance to the case of the respond-en! s in this court that they should have libeled the three-masted schooner with which they claim the Martin to have been in collision off Gape May, — if for no other purpose, at least to establish the fact of collision, and to show that the fault was not that of the master and crew of the Martin. The evidence before me is wholly ex parte as to that other vessel, and the testimony of the crews of vessels which have been in collision is proverbially unreliable. The testimony of the crews of each of these two vessels as to that collision ought to have been taken under oath and under cross-examination; otherwise it would have been, in that litigation, worthless. How can it be any better in this, where it is the whole truth that is essential to the formation of a just conclusion. But although the owners of the Martin themselves testify that they had abundant opportunity to libel the three-masted schooner, which they called the “William H. Baily of New York.” yet they have not done so. In Boston they tried to maneuver with the master of the alleged schooner, to induce him to get out of the way of their libel. They could have libeled her during several days whale lying at or near Boston. They told her master that they had arranged to libel her after a certain fast day, and to get his vessel readv. and (hey say he went off with his schooner before they got their libel out. If, therefore, these people have a good case, they have failed to support it with the evidence most necessary and proper for its vindication; that is to say, they have omitted to examine three of their own crew to sustain the statements alleged in their defense, and these three were the men who were wholly disinterested in the result of the suit. They have not libeled the schooner which they claimed to have collided with, nor examined any of her crew as to the'alleged collision, although they insist that in this collision originated the disaster to their vessel. Nor have they accounted for these omissions. When we come to examine the testimony of their own master and mate as to the causes of the misfortunes of the schooner Martin, their explanations prove to be radically unsatisfactory. They say they were running southward, abreast of, and six miles off from, Cape May, on the night of the collision, with wind W. N. W. (when it was two points abaft their beam), and that they were closehauled and on the starboard tack. They say that the three-masted schooner was standing northward with wind W. N. W. [654]*654at that time, and yet that she was sailing with a free wind, and on a port tack. These statements are, by physical and mathematical necessity, untrue. Moreover, these officers say that the vessels collided by the Baily’s starboard bow running into thé Martin’s port bow; and Mr. Matthews testifies that the port bow of the Martin, as he saw it at Richmond, was rubbed and abraded, and that the starboard bow of the Baily, as he saw her in Boston, was likewise rubbed and bruised, and that he saw a workman obliterating the mark or bruise on the Baily. Now, it is absolutely impossible that such a collision could have occurred between these two vessels, unless one or the other of them had entirely reversed her course; and there is no mention or intimation of such a reversal in the testimony of either the master or mate of the Martin. Counsel for the Martin suggests that she might have been sailing at the time of collision on a course to bring her under the land, say, S. W. by W., and that such a course would bring her close to the wind. But she was then opposite Cape May, north of the mouth of the Delaware Bay, and such a course as that suggested would have taken her into the mouth of the bay. She could not have been aiming to enter the bay; and, even if she had been, her port would then have been turned still further away from the other schooner, and her course would have rendered it still more impossible for the Baily to have run into her port bow with her own starboard bow. In short, I find it impossible to believe the statements of the master and mate on this subject, — a fact which naturally and necessarily discredits their whole testimony. The Martin was sailing with the wind free, the Baily wras sailing close to the wind, and the rule of the road (Rule 17, Rev. St. § 4233) made it the duty of the Martin' to keep out of the way of the Baily. If, therefore, there was a collision, it was by fault of the Martin, and she is responsible for all the consequences to the cargo for that fault. The statements of the master and mate as to the dismasting of the schooner are almost as incredible. They admit that they examined the rigging of the schooner shortly after the collision, and found the essential parts of it intact. They proceeded on their course for three' hours on a rough sea, but after that period, all the way to Chincoteague, some 60 or 70 miles, the sea was “comparatively smooth,” and the wind was “moderate.” The wind was shifting all the rest of the night after the collision, all of the next day, and the first part of the next night, so that it had got entirely around the compass. There is no complaint of a storm, though the sea was heavy, and the wind was blowing a reef breeze. At 2 p. m. on the morning of the 24th the masts suddenly went down. What was the cause of this misfortune? The testimony of the witnesses examined at Richmond was that the starboard fore rigging was cut. So is that of Mr. Cow-ardin, who was on board the Martin from soon after she was brought into port at Norfolk until she was taken to Richmond. This fig-ging was cut some nine or ten feet above the deck. The masts fell over in the direction two points on the port quarter, showing that the fore rigging on the starboard side was at fault. The vessel had [655]*655gone on her course for 26 hours after the collision. Examination had shown that the essential parts oí the rigging were intact shortly after the collision. Though it had been subjected to greater or less strain for the first 3 hours after that event, it had stood the strain. Then there was a “smooth sea” and a “moderate” wind for 20 hours, during which there could have been no strain. Then, without the agency of any vis major, in the shape of either high storm or heavy sea, the masts went down opposite the quarter where the .rigging was found afterwards to have been cut. This is not a criminal prosecution, in which a court must require full proof of crime, but a civil suit, in which a court is bound to decide upon the preponderance of evidence positive and circumstantial. With every disposition to presume innocence, I cannot persuade myself that the falling of these masts was the result of any vis major of navigation, especially as it occurred at a desolate point on the coast, where violence to the vessel could find more of a chance of immunity and concealment than at probably any other point on the North Atlantic seaboard. But, even if the masts did fall by stress of weather and sea, still there was no justifying cause for the subsequent abandonment of the schooner by the master and mate. It is true that the chance of escape was cut off by the accidental destruction of their boat in the falling of the masts, but where was the necessity for escape at all? They could safely remain on board until help came from some quarter, and there was nothing in their condition to throw them into a panic of fright. If they were under the influence of such a panic before the Hopkins came in sight, they were needlessly so, and the certainty of rescue should have calmed them Their vessel was not sinking. It was not even leaking considerably, but only to the extent to which the best of vessels are liable at sea. But they did more than escape. ' When they got aboard the Hopkins their trepidation should have entirely subsided; and they violated their duty as seamen to their ships, its owners, and to the cargo, by so exaggerating the condition of their vessel, in their statements to Capt. Hallett, as to induce Mm to sail away without attempting to save their ship. This is a,ll proved by the sequel; Oapt. Howe, of the Crane, having found the schooner riding safe at anchor, without much water in her hold, not in a leaking condition, and capable of being towed upon a right rough sea. into harbor. The Boston steamers all stop for several hours at 'Norfolk, both on their trips in and out. When the Hopkins came into this harbor with the crew of the Martin on board, the first duty of the master and mate of the Martin was to take steps to have her looked after and saved, if practicable, which it certainly was. They took no such steps. So far as any evidence exists, they gave no publicity in Norfolk to the fact that their vessel was anchored out at sea, within a few hours’ sa.il of Norfolk, in distress and danger. We have no evidence that they did anything or said anything while here for the rescue of their vessel, and they went on to Baltimore, where they would seem to have been equally reticent and inactive.
I am of opinion that whatever accidents are described in the evl-[656]*656deuce as having happened to the James Martin happened by the fault of her master and crew; especially that the collision, if it occurred at all, was by their fault; and that the dismasting of the vessel was either through their act, or through their negligence or incompetency in not properly staying the masts previously to their falling. I am of opinion that the vessel was abandoned unnecessarily — was in fact deserted — by her master and crew, under circumstances in which their duty as seamen demanded that they should have stood by her; at least, to the extent of prevailing upon Capt. Hallett to do, under their supervision, what Capt. Howe did on the next day after they had deserted her. I am of opinion that, on being brought by the Hopkins into the port of Norfolk, the master and mate of the schooner ought to have taken effective steps for bringing their vessel into port, and should have hired a powerful wrecking tug, and gone themselves out to the place of anchorage, and themselves brought their vessel and her cargo into port, and saved salvage. I am of opinion that, having failed to do this at Norfolk, they should have done it in Baltimore. I am of opinion that, by omitting this natural and obvious duty, they themselves furnished strong evidence to sustain the suspicion that their desertion of the ship was premeditated and criminal. I am of opinion that the James Martin, in consequence of this bad seamanship of master and crew, is liable for the amounts paid for salvage and as damages to the cargo by the libelants.
As to the question of the freight: This was a clear case of an abandonment at sea of the vessel and cargo by the master and crew, without intention to retake possession. Where this is done, and where the owners of the cargo have done no wrongful act themselves, it is settled law that the ship owners can maintain no claim to the freight. The contract of affreightment, indeed, is not at an end, because it exists to form the foundation of a suit for damages to the cargo, by its owners, as in the case at bár.
The damages that will be awarded in this cause, from the negligence of the master and crew, will be $1,800 for salvage paid, $2,007 for damages to the cargo, and costs of this suit. The libel is in rem only, and the vessel brought, on a sale under a consent decree, only about $1,500. Now, if the proceeds of this sale had been sufficient to cover this whole claim for salvage and damages, together with costs, I might be bound to listen to argument on behalf of the owners for the freight. But the large. excess of the amounts claimed by libelants over and above the proceeds of sale, and .the large deficiency, for which the libelants have no recourse here whatever, preclude such an inquiry in this proceeding. I will sign a decree denying the respondents’ claim for the freight, and awarding to the libelants the amounts above indicated, to be paid, as far as may be, out of the proceeds of the sale of the ship.