Page:Federal Reporter, 1st Series, Volume 3.djvu/527

 620 ^, • FEDERAL REPORTER. �Ebbrt and others v. The Schooner Eeuben Doud. �(District Court, B. D. Winconain. July, 1880.) �1. CoLusiON — Pleading— Affirmative Damages. — In a libel for col- �lision the respondent cannot obtain a decree for damages in excess of those sustained by the libellant, unless he bas filed a cross libel. �2. Samb — Samb — Recoupmbnï. — Where, however, such libel for collision �bas been flled, and the answer alleges injuries sustained, with an appropriate prayer for relief, the respondent bas the right, without the filing of a cross-bill, to sbow damages by way of recoupment, in the reduction or extinguishment of the libellants' claim. �George C. Markham, for libellants. �D. S. Wegg, for respondent. �Dybk, d. J. a libel was heretofore filed in thîs court by libellants, as the owners of the schooner Arab, to recover dam- ages svistained by that vessel in a collision with the schooner Eeuben Doud, which oecurred while the two vessels were lying at the port of Eaeine during a storm. The libel charged the whole fault upon the respondent vessel. An answer was interposed which controyerted the material allegations of the libel, and set out a state of facts showing that the collision was occasioned wholly by the fault of the Arab. There was also a general allegation in the answer that the Doud was injured in the collision, but the manner in which she was injured, and the partioulars and extent of her injury, were not alleged. No cross libel was filed in behalf of the Doud. �The case came to a hearing upon the proof s, and the court found both vessels in fault, ordered a division of the damages according to the practice in such cases, and the usual order of reference was made to a commissioner, who was directed to ascertain and report the damages. It was not specifically stated in that order that the damages sustained by each ves- sel should be ascertained, and because of the general language of the order it has been a question with the commissioner and the parties litigant whether it was intended that proof should be taken showing the damage sustained by both ves- sels, or whether it should be limited to the damages sustained by the Arab. Testimony was taken by the commissioner on ����