Whyte v. Gibbes et al. Gibbes et al. v. Whyte. Mr. Justice NELSON delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States for the district of Maryland. The case in principle is similar to the case of Williams v. The Executors of Robert Oliver, in which the opinion has just been delivered, with the exception of a question made upon a bill of revivor. The suit was originally brought by John Gooding, jun., administrator de bonis non of the estate of John Gooding, sen. After the determination of the cause by this court, reversing the decree below, and sending it back with directions to enter a decree for the complainant, and to take an account, the complainant died. Thereupon, Whyte, the present complainant, was appointed administrator de bonis non, and filed a bill of revivor of the original suit, and presented a petition to the court, praying that, as the defendants were residents of the city of New York, the subpoena may be served upon the counsel of the defendants in the original suit, which was granted. The defendants appeared, and filed an answer to the bill of revivor under protest, and insisted that the court had not jurisdiction of the original suit, as the complainant in that suit was a citizen and resident of Virginia, and the defendants were residents of New York. There does not appear to have been any order of the court upon the question presented in this answer; but the cause proceeded before the master, where it was pending at the time of filing the bill of revivor and answer to the same. The point is now taken, that as it appears the defendants were citizens and residents in New York at the time of the filing of the original bill, and also the bill of revivor, the court below had no jurisdiction in the case. The answer to this objection is, that no want of jurisdiction appeared on the face of the original bill, and the defendants appeared and defended the suit; and, as the bill of revivor is but a continuance of that suit, the residence of the parties at the time it was filed is altogether immaterial. This question arose in the case of Clarke v. Matthewson et al., (12 Peters, 164,) and was decided in conformity with the rule above stated. In respect to the other objection, that the court had not jurisdiction in the original suit, we may add, in addition to what we have said, it comes too late after the mandate has gone down to the court below. (3 How., 413.) The decree of the court below affirmed. Snow et al. v. Hill et al. v. "9 THOMAS A. SNOW AND OLIVER PALMER, MANAGERS OF THE OCEAN TOW-BOAT COMPANY, CLAIMANTS AND OWNERS OF THE STEAM TOW-BOAT "STAR," AND OLIVER PALMER, APPELLANTS, V. CHARLES HILL ET AL., OWNERS OF THE SHIP "OCEAN QUEEN,' AND GEORGE LAW, MARSHALL O. ROBERTS, AND BOWES R. McILVAINE, TRUSTEES OF THE UNITED STATES MAIL STEAMSHIP COMPANY, CLAIMANTS AND OWNERS OF THE STEAMSHIP "CRESCENT CITY." Where a tow-boat was descending the Mississippi river with a vessel fastened to each side, and another at the stern, and a collision ensued between one of the vessels thus lashed and an ocean steamer ascending the river, the evidence shows that the latter was in fault, and must pay for all the damage. THIS was an appeal from the Circuit Court of the United States for the eastern district of Louisiana, sitting in admiralty. On the night of the 5th November, 1852, a collision occurred at about midnight, in the Mississippi river, at a point about twenty miles below the city of New Orleans, between the steamship Crescent City and the ship Ocean Queen, then in tow of the steam tow-boat Star. The Crescent City was at the time ascending the river, bound for New Orleans. The towboat Star was descending the river, having in tow, on her starboard side, the ship Charles and Jane, on her larboard side the ship Ocean Queen, and astern the brig Telegraph. The ships on either side of the tow-boat were firmly lashed to the latter, their bows projecting some distance beyond those of the tow-boat-the brig was about forty fathoms astern. The effect of the collision was to cause damage to both the colliding vessels and to the ship Ocean Queen, to such an extent as to compel her to return to New Orleans, take out her cargo, and there undergo extensive repairs. The owners of the Ocean Queen libelled both the tow-boat Star and the steamship Crescent City. The owners of the Crescent City libelled the Ocean Queen and the tow-boat Star, to recover the damages they had sustained. The owners of the tow-boat Star libelled the steamship Crescent City, for the damages she sustained in the collision." The cases were by consent consolidated and tried together. The cause having been brought to a hearing before the Hon. T. H. McCaleb, judge of the District Court, on the 4th March, 1854, he pronounced a decree declaring that the collision was attributable to the improper position in the river and the bad management of the tow-boat Star; and he ordered a reference to a commissioner, to ascertain and report the amount of damage sustained by the Ocean Queen. Snow et al. v. Hill et al. On the 18th May, 1854, the report of the commissioner was confirmed, and a decree was made in favor of the owners of the Ocean Queen against the stipulators of the tow-boat Star for $19,465.79, with interest from the 10th January, 1853, and costs. The libel against the Crescent City was dismissed, with costs. On the 25th May, 1852, the Ocean Tow-boat Company appealed to the Circuit Court, from the decree in favor of the owners of the Ocean Queen. On the 8th June, 1854, the owners of the Ocean Queen appealed to the Circuit Court, from that part of the decree of the 18th May which dismissed the libel against the Crescent City, with costs. In November, 1854, these appeals were argued before the Circuit Court; and on the 18th June, 1855, a decree was made, affirming that of the court below, in favor of the owners of the Ocean Queen, against the tow-boat Star, for the aforesaid sum of $19,465.79, with interest from the 10th January, 1853, and costs. It further ordered the United States Mail Steamship Company to pay the costs of the action of the owners of the Ocean Queen against the Crescent City. It was referred to a commissioner to ascertain the entire damage arising from the collision, and to apportion it between the United States Mail Steamship Company, claimant of the Crescent City, and the Ocean Tow-boat Company, claimant of steamboat Star, according to the admiralty rule, where there has been mutual fault, each company to bear its own costs. On the 29th of June, 1855, the Ocean Tow-boat Company appealed to this court from this decree. The owners of the Ocean Queen appealed to this court from so much of the decree of the Circuit Court as discharged the owners of the Crescent City from liability to them. In November, 1857, the commissioner made his report of the entire damages occasioned by the collision to the several vessels, and the parties to the several actions, by their respective proctors, having filed their written consent to the entry of a decree, confirming the report, on the 21st November, 1857, a final decree was entered in the said actions in favor of Charles Hill and others, owners of the Ocean Queen, against Thomas A. Snow and Oliver Palmer, managers of the Ocean Towboat Company, and Oliver Palmer, their surety, the sum of $19,465.79, with interest at the rate of five per cent. per annum, and costs of suit. It further decreed that the Ocean Tow-boat Company, upon the payment of the said last-mentioned sum, should recover Snow et al. v. Hill et al. from the United States Mail Steamship Company, and Arnold Harris and Frederick Fisher, their sureties, the sum of $9,732.89, the one-half of the amount of the damages sustained by the Ocean Queen, with interest, at the rate of five per cent., and one-half of the costs of the suit. There were other points in the decree, which need not be mentioned. There were then three appeals pending before this court, viz: CHARLES HILL ET AL., IMPLEADED with the STEAMSHIP CRESCENT CITY, ads. OCEAN TOW-BOAT COMPANY. CHARLES HILL ET AL. v. THE UNITED STATES MAIL STEAMSHIP COMPANY. CHARLES HILL ET AL. ads. THE UNITED STATES STEAMSHIP COMPANY. The cases were finally narrowed down to the one which is at the caption of this report, and which was argued by Mr. Cushing on behalf of the Ocean Queen, Mr. Cutting on behalf of the Crescent City, and Mr. Benjamin on behalf of the Ocean Tow-boat Company, owners of the Star. The arguments upon both sides were chiefly drawn from the evidence in the case, which was somewhat contradictory. A summary of that portion of it upon which the judgment was based, will be found in the opinion of the court. Mr. Justice McLEAN delivered the opinion of the court. This is an appeal in admiralty from the Circuit Court-for the eastern district of Louisiana. Hill and others, as claimants, in their libel, state that the Ocean Queen, being duly enrolled, registered, and equipped, left the port of New Orleans on a voyage to Liverpool, England, having a cargo of about 2,780 bales of cotton; that on the 5th of November, 1852, about half past nine o'clock, P. M., under the tow of the tow-boat Star on the larboard side, the ship Charles and Jane on the starboard, and a brig in tow astern, were proceeding down the river Mississippi for the Balize; that at about midnight on the same evening, twenty miles below New Orleans, the steamship Crescent City, then ascending the river, came in collision with the Ocean Queen on her larboard bow, cutting her to the bends, breaking her planking, timbers, and knees, and so injured the ship as to Snow et al. v. Hill et al. disable her from the prosecution of her voyage, and compelled her to return to New Orleans to refit; and that the costs of repairs and expenses amounted to the sum of twenty-five thousand dollars; and a lien on the Crescent City and the Star, for the above sum, is jointly and severally claimed. The answer of the United States Mail Steamship Company, a body corporate, owner, says, the Crescent City was ascending the Mississippi river to the port of New Orleans, and was at a point in the river just below the English Turn, when, at about midnight, the pilot and crew discovered a tow-boat, which proved to be the Star, with the Ocean Queen and two other vessels, a short distance in front, and close to the eastern bank of the river; that there was not sufficient room to pass between the tow and the bank; that the tow-boat and her tow were out of the usual course of vessels descending the river, and that the Crescent City was in her proper position; that the Ocean Queen had not a light set in her rigging or elsewhere, visible to those on board the Crescent City; that the tow-boat failed to ring her bell or stop her engines and float, in the manner pointed out by law; that the Crescent City had slowed her engines on approaching the tow-boat, and receiving no signal that she was descending the river, put the helm of the Crescent City to the starboard, so as to pass outside of and clear of the Star and her tow; that she was heading to the western bank of the river, and as they approached her the Crescent City stopped her engines, and then backed, and was backing when the Ocean Queen and the tow-boat Star ran into the starboard bow of the Crescent City, striking her about twelve feet from her stern, and causing great damage. That the pilot, officers, and crew, of the Crescent City, managed their boat with great care and skill; that the collision was caused by negligence and want of care of the tow-boat Star and the Ocean Queen, in not keeping their proper position on the river, in not ringing their bell, &c. The answer of the Tow-boat Company to the libel was filed, denying the allegations it contained, and charging the fault on the Crescent City. As the decision of the court must be governed by the evidence, it is not important to refer to the other pleadings in the case. David Kelly, a witness, after describing the tow-boat and the other vessels fastened to her, as stated in the libel, said, when they started from New Orleans the Ocean Queen had one of her own men at the helm; afterwards the Star sent a man who took charge of it. They proceeded down the river, as near the middle as possible. In about an hour, one of the |