WHITE V. THE RANIER.

7.7.3

WHITE

'11.

THE RANIER.

(Dl.31ir1Ct Oourt, D. Washington, N. D. March SO, 1891.)
LmBL

In a proceeding in rem for wages'for services as engineer of a steam-tug, where it appears that the wages were earned, a defense in the nature of a counter-olaim, based on evidence that libelant and another undertook to make certain repairs upon the boat while laid up, and had been overpaid certain sums beyond the work and materials done and furnished, cannot be sustained if not specially pleaded, aDd because it does not constitute a cause of aotion against the libelant singly.

W AGES-COl1NTBR-CUIH.

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In Admiralty. Libel for wages. Edgar Lemmon, for libelant. W. Lair Hill and M. GiUiam,· for claiIllant.
HANFORD, J. . This is a snit to recover wages for services as engineer in chief on the steam-tug Ranier. The owners of the vessel in theirap-swer, besides denying that thereis any balance due the libelant,' plea'd payment in full of the wages earned by him, and also plead a setoff for moneys advanced and loaoed to the libelant at different times prior to the commencement of this suit. The evidence shows beyond all question that the libelant earned the wages which he claims, and ill'the testimony of Capt. Scoland, the principal witness in behalfof the claimants,he squarely admits that the sums which he has charged againstthe libelant were neither payments on account of his wages, nor advances made to him as loans, and there is no testimony whatever to sustain the affirmative defenses pleaded in the answer. The only defense basedup6h testimony is that, While the libelant was employed as engineer, the bOllit was laid up for repairs, and that the libelant and another man entered into a cQntrlliCt to do part ofthe work and furnish materials necessary in the boat for a specified price; that the owners actc ually paid for·the work and done and furnished by the libelant and his co-coptractor sumsaggregltting several hundred dollars in excesB .of the Contrl'lctpricejand it is contended.thp.t the money so paid in excess of the contract price should, upon principles of equity, be applied .payment tothe plaintiff of the wages for which he has sued. Iconsider, howe,ver, that it would be unfair and entirely irregular for: claimants to pr,evail in this contention. Upon familiar rules of pleading and practice, to eptitle them to recover in !;tny form of action, the contract referred· to should have been specially pleaded. It is obvious that there are to the libelant in any proceeding against him alone. If an independent suit were being made against him, based upon the facts alleged in this defense, ae the contract is not his contract, but a joint cont;ract. of himself and another, and as the testimonyshowB that both the c{)ntracting parties participated in the performance of the contract, and each received payments of money from the claimants on at:Qount of said 4:lontract, a demurrer for non-joinder olthe other contraQtirlg party or a plea in abatement could be successfully interposedj aud t

if an independent action against the libelant alone would not be maintainable upon the facts .:ted;neitlier.can,tbirfspecial defense, which is in reality a cross-demand, and the same as another action, be maintained in this case,rFor these tworeasons,therefote,viz.,that the contract was not pleaded, and that the facts stated do not constitute a cause of ,action I decliIlEltO,'consider the defense made upon the testImonyj' and! the libelant having established his demand, a decree .costs. willbe teU-dered in his favor for the sum . sued for,"-$205, -and ..... . " ..

WAGNERV. THE

W. M.

WOOD.

(Oi:rcl#t cowrt. E. D.

February 19,

.

ToWAGB-NBGLIGENCB OF TuG. ,

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. tow aheavily loaded barge, Collided with It,the recausiD,g some of its· seams to ppen. and handled it in a reckless mabner, against

, Where at tug, in attaching to its

m Oll-strance of .the master, 9f. the barge, it is liable for the damages l'esulting there. , f rom.

In

PARDEE,J. This cause came on to be heard upon the transcript of record and the evidence; and was argued by Mr. Richard De Gray, proctor for libelant, and MI'. Charles S. Rice, proctor for claimant. Upon c<;msideration whereof the court finds, on undisputed evidence, that the barge, loaded with libelant'llbrick and lumber; did not leak before the tug Wood took:her in tow;' that the said barge took in water over the gunnels, and also began leaking after being taken in tow by the said tug; that the ,leaking of said barge was serious in character, hecause the barge ooritinued to settle in the water after being placed in still water at the wharf of the oil':company. And the c6urt finds by the preponderanceof evidence that when the tug Wood hitched onto the barge in Diamond Eddy there was a collision between the two, which probably resulted. in opening some of the Beams of the barge, causing the barge to leakj that the handling of the barge by the officers and crew of the tug Wood: wag, 'reckless, and unnecessarily exposed the barge to danger, particularly if it be tFue, as stated by them, that the barge was overloaded; that the master ·of the said tug exhibited reckless obstinacy in refusing to land-the barge at' the originally intended; and that the said barge was not overloaded. Wherefore it is ordered, adjudged, and decreed that the libelantrO. V.Wagner, do have and recover from the Charlie Wood Transportation Company, claimant and owner of the tug W. M.Wood, and from:P. M. Schn'eidau, surety on the release bond, en solido, the sum of $594;75 damages, and all costs of the district and circuit courts tc:>be taxed, for whichqexe<)ution may issue in five days after the final signing of this decree." " "
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