The Coleman and Foster. jointly participate in their control and management, and the master or crew of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Other cases may well be imagined where the tow alone would be responsible; as when the tug is employed by the master or owners of the tow as the mere motive power to propel their vessel from one point to another, and both vessels are exclusively under the control, direction and management of the master and crew of the tow. *** But * * * whenever the tug, under the charge of her own master and crew, and in the usual and ordinary course of such an employment, undertakes to transport another vessel, which, for the time being, has neither her master nor crew on board, from one point to another, over waters where such accessory power is necessarily or usually employed, she must he held responsible for the proper navigation of both vessels. Assuming that the tug is a suitable vessel, properly manned and equipped for the undertaking, so that no degree of negligence can attach to the owners of the tow, on the ground that the motive power employed by them was in an unseaworthy condition, and the tow, under the circumstances supposed, is no more responsible for the consequences of a collision than so much freight; and it is not perceived that it can make any difference in that behalf, that a part, or even the whole officers and crew of the tow are on board, provided it clearly appears that the tug was a seaworthy vessel, properly manned and equipped for the enterprise," etc. To apply these doctrines to the present case: In the first place, those in charge of the respective vessels jointly participated in their control and management, or, in other words, each vessel was in the immediate charge and control of her own officers and crew, and so, under the law as above laid down, this comes within the class of cases in which both the tow and the tug may be jointly liable. In the second place, the tug, as we have seen, was not properly manned for the enterprise, and so this case comes also within the class of cases in which the tow may be held in fault for employing a The Coleman and Foster. motive power which was in an unseaworthy condition. That the tow should be held in fault, especially in view of the great doubt and uncertainty before mentioned concerning her condition and her conduct, I think scarcely admits of doubt. It results that both the tow and tug must be held jointly liable for the consequences of the collision, unless the answers. to the above positions set up on the argument, which will now be considered, are sufficient to defeat a recovery. The first objection to a recovery on the ground stated, viz: that the tug was not properly manned, is that there is no such specific fault charged or set up in the libel or other pleadings. It is true, the libel contains no specific allegations of fault against either vessel, the charge in that respect being in the most general terms imaginable, that the collision was caused "through the negligent and insufficient management of said tug, and schooner Foster." There are, however, two complete answers to the objection on this ground. Firstly, no exceptions having been taken to the libel, and the case having evidently been fully and fairly presented, so far as the matter in question is concerned, the Court would direct the libel to be amended, if necessary to sustain a decree in favor of libellant. Secondly, in the case of The Syracuse (12 Wall. 167, 173), the Supreme Court, in deciding an objection precisely like this one, and where it was expressly held that the libel was defective for want of such specific allegation, laid down the following rule: “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 (The Quickstep, 9 Wall. 670; The Clement, 2 Curtis, 366). There is no doctrine of mere technical variance in the admiralty, and subject to the rule above stated, it is the duty of the Court to extract the real case from the whole record, and decide accordingly." As in that case, so in this, it is very clear that the libellant had no design in view in omitting to charge specifically as a fault, that the tug was not properly manned; and it is equally clear The Young America. that the proof on that subject, coming, as it did, from the opposite parties, could not have operated to confuse them. The remaining objection to a recovery is that, as appears by the proofs, the tug was fully manned according to the custom in this respect of tugs plying on those waters. The rule requiring that tugs, while in active service, should have a wheelsman separate from the officer in charge of her navigation, and that such officer have no other duties to perform, is a salutary one for the protection of life and property and inseparable from the very nature of the service, and no reckless and unsanctioned usage to the contrary can be allowed to do it away or modify it. If such a custom, as is contended, prevails at the mouth of Saginaw river, the sooner it is abandoned the better for the interests of commerce, as well as of tug owners themselves. Decree for libellant. THE YOUNG AMERICA. JANUARY, 1874. PLEADINGS.-AMENDMENT.-JOINDER OF ACTIONS IN REM AND IN PERSONAM. It is not competent to amend a joint libel against three vessels, by substituting the name of the owner of one vessel for the vessel, so as to change it from a libel in rem to one in personam. A libel in rem cannot be changed into a libel in personam against the owner. A joint action for collision cannot be maintained in rem against one vessel, and in personam against the owner of another. LIBEL for collision, by Frederick H. Blood, against the tug Young America, the schooner Home, and Francis R. P. Cottrell, owner of the scow Wilcox. The Young America. Case came up on motion by the respondent Cottrell to dismiss the citation as to him, and to vacate the order allowing an amendment to the original libel upon which the citation was issued. The original libel was filed against the tug, schooner and scow, in rem, for an alleged joint liability for damages on account of a collision. The tug and schooner were arrested and bonded. The scow was not arrested, on account of her being and remaining out of the jurisdiction, and no appearance was entered or bond given on her account. In this state of the case, the libellant presented his petition, setting forth the foregoing facts, and alleging that the respondent Cottrell was owner of the scow at the time of the collision, and praying "that the said libel may be amended, and so far as concerns the said scow may be turned into a libel in personam, and that your said libellant may be permitted to proceed against the said Cottrell, as owner of said scow, instead of proceeding against the said scow herself, and that the said Cottrell may be cited," etc. The Court at the time expressed serious doubts as to the regularity of such a proceeding, but finally, without a critical examination of the subject, made an order in accordance with the prayer of the petition. A citation having been issued and served on Cottrell, he now moves to dismiss the same, and to vacate the order amending the libel, and allowing the citation to issue. Mr. F. II. Canfield, for the motion. The amendment changes the form of action from one in rem to one in personam. The Court has no power to allow such an amendment (The S. C. Ives, 1 Newberry, 214; see, also, The North Carolina, 15 Pet. 40; The John Jay, 3 Blatch. 67; The Richard Doane, 2 Ben. 111). The amendment is open to the further objection, that it works a complete change of parties, and is in fact the institution of a new suit. The Young America. At common law, the rule is well settled that the Court has no power to amend, by adding new parties, or by changing the form of action (Winslow v. Merrill, 11 Me. 127; Atkinson v. Clapp, 1 Wend. 73; Winn v. Averill, 24 Vt. 283; Emerson v. Wilson, 11 Vt. 357; Bowman v. Stowell, 21 Vt. 309; State v. Cook, 32 N. J. 347). No case can be found sanctioning the practice attempted here, and the absence of authority is an argument against its adoption. Mr. H. B. Brown, contra. Any amendment is allowable in admiralty which does not change the cause of action. Improper parties may be stricken out (Newell v. Norton, 3 Wall. 257, 263). New ones may be added (The Commander in Chief, 1 Wall. 49). A libel may be turned into an information (U. S. v. Four Pieces Cloth, 1 Paine, 435; see, also, Dunlap's Adm'ty Prac. 87, 129, 213; 2 Pars. on Ship. 429, 431). An amendment was refused in the S. C. Ives (Newb.), because an entire change in the nature and character of the action was proposed (See, also, 2 Conk. Adm. 258, 415; The Harmony, 1 Gall. 123; Davis v. Leslie, Abb. Adm. R. 123; Nevitt v. Clarke, Olcott, 316; The Richard Doane, 2 Ben. 111; The City of Paris, 1 Ben. 529; The Henry Ewbank, 1 Sum. 400). It is settled that a Court of Admiralty is governed by the same rules of practice as a Court of Equity. In equity the name of a plaintiff may be changed (1 Dan. Chan'y Prac. 402, 404; Jennings v. Springs, 1 Bailey's Eq. 181). The amendment is in furtherance of justice, as it is more equitable that the owner should pay, than an innocent purchaser of the vessel. We might discontinue against the Wilcox, and file an original libel against her owner, setting forth that his vessel was in fault, and the Court would order the causes to be tried together. What may be done indirectly may be done directly. |