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THE 'DOVE.'

October 1, 1875

THE 'DOVE.'


APPEAL from the Circuit Court of the United States for the Eastern District of Michigan. The facts are stated in the opinion of the court.

The opinion of the court was delivered by: Mr. Justice Clifford delivered the opinion of the court.

Mr. H. F. Canfield and Mr. D. B. Duffield for the appellant.

Mr. Ashley Pond and Mr. W. A. Moore, contra.

Efforts, sometimes of a persistent character, are made in controversies of the kind, to establish a theory, which, if true, would show that the respective vessels of the parties never collided, even when it is admitted that the collision did occur at the time and place alleged in the libel, and that the vessel of the complaining party became a total loss. Such efforts are useless, as it is hardly to be expected that the attention of the court, if accustomed to such investigations, can be diverted from the great inquiry in such a case, which of the parties, if either, is responsible for the loss occasioned by the disaster.

Compensation is claimed by the owners of the steamer 'Dove' for damages received by the steamer in a collision, which occurred in St. Clair River, May 31, 1869, between the steamer and the propeller 'Mayflower,' about eleven o'clock in the evening of that day, in which the propeller struck the steamer on her port bow, and caused such injuries to the steamer, that her master found it necessary, in order to prevent her from sinking in deep water, to port her helm, and strand her on the Canada channel-bank of the river.

Process was served, and the owner of the propeller appeared and filed an answer. He also filed a cross-libel, in which he charged that the collision was occasioned by the fault of the steamer; and the owners of the steamer appeared and filed an answer to the cross-libel, denying the charge that the steamer was in fault, and reaffirming all the material allegations of the original libel.

Testimony was taken on both sides; and, the parties having been fully heard, the District Court entered a decree in favor of the owners of the steamer for the sum of $14,114.62, with interest and costs, as set forth in the decree, and dismissed the cross-libel with costs, at the same time the decretal order was entered in favor of the libellants in the original suit promoted by the owners of the steamer; from which decree dismissing the cross-libel no appeal was ever taken by either party.

Seasonable appeal to the Circuit Court was taken by the owner of the propeller from the decree of the District Court in the original suit, and further testimony was there taken before the final hearing. On the part of the propeller, the same views were maintained in the Circuit Court as those urged in the District Court; but the owners of the steamer submitted an additional proposition, to the effect, that, inasmuch as no appeal had been taken from the decree of the District Court in the cross-libel, the libellant in that suit was estopped to deny the charge in the answer to the cross-libel, that the collision was occasioned wholly by the fault of the propeller.

Both parties were again heard, and the Circuit Court affirme the decree of the District Court; and the respondent in the original suit appealed to this court. His principal propositions here are, that the collision occurred on the Canada side of the river, and that the steamer was wholly in fault.

Opposed to the first proposition, it is insisted by the libellant that the collision took place on the American side of the river; that the propeller was wholly in fault; and that her owner is estopped to deny that allegation, because no appeal was taken from the decree of the District Court dismissing the cross-libel.

Special reference is made in the argument to the case of Ward v. Chamberlain, 21 How. 554, as tending to support the proposition of estoppel; but the court here is of the opinion that nothing is found in that case which has any such tendency. Two remarks will be sufficient to show that the inference drawn from that case is not well founded: (1.) That no cross-libel was filed in that case. Due process was issued in the original suit, and the respondents appeared and filed an answer, and the parties entered into an agreement that the answer in the primary suit should also be considered and operate as a libel in the cross-action. (2.) That in the case before the court there is a cross-libel, in regular form, in addition to the answer filed to the original libel, and that the libellant in the original libel appeared in the cross-suit and filed an answer.

Causes of the kind may be tried together or separately, as it is obvious that the pleadings in each are complete without any reference to the other. Nothing is required on the part of the respondent in the original suit beyond his answer, unless he claims that his vessel was injured, and that the collision was occasioned wholly by the fault of the vessel of the original libellant. For all purposes of defence to the charges made by the libellant, his answer, if in due form, is sufficient; but if he intends to claim a decree for the damages suffered by his own vessel, then he should file a cross-libel. Damages for injuries to his own vessel cannot be decreed to him under an answer to the original libel, as the answer does not constitute a proper basis for such a decree in favor of the respondent. Consequently, whenever he desires to prefer such a claim, he should file an answer to the original libel, and institute a cross-action to recover the damage for the injuries sustained by his own vessel.

Controversies of the kind are usually tried together; and it appears that the two suits in this litigation were so tried in the District Court, and that the District Court came to the conclusion that the cross-suit was without merit, and dismissed the cross-libel; and, inasmuch as the libellant in that suit did not appeal from that decree, the suit is ended and determined. But the determination of that suit by such a decree did not determine the rights of the parties in the original suit: on the contrary, it left the issues in the latter suit just as they would have been had cross-suit never been commenced.

Beyond doubt, the final decree dismissing the libel in the cross-suit determines that the libellant in that suit is not entitled to recover affirmative damages for any injuries suffered by his vessel in the collision; but it does not dispose of the issues of law or fact involved in the original suit. Instead of that, both parties in the cross-suit, if no appeal is taken from the decree in that suit, are remitted to the pleadings in the original suit; and it is ...


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