Page:Federal Reporter, 1st Series, Volume 7.djvu/240

 228 FEDERAL REPORTER. �the towing of said barge Speed so laden from Pomeroy to Cincinnati, and in pursuance of said contract said steam-boat Liberty No. 4 took charge of said barge so laden and proceeded down the river. (8) That these libel- lants had no charge or control of said tpw-boat nor of said barge, but they were under the exclusive charge and control of the ofBcer of said Liberty No. 4. (9) That by reason of the negligence of and failure to exercise ordi- nary care, sltill, and diligence on the pari of the officer of Liberty No. 4, and by reason of the bad and unsound and unseaworthy condition of said Lib- erty No, 4, and by reason of the Liberty No. 4 not being properly equipped, the said barge Speed and the said sait were sunk in the Ohio river, whereby the said sait company sustained damage to the amount of $2,501.25. (10) That said damage was caused without any f ault of the libellants, and with- out their knowledge as to the condition of said Liberty No. 4. (11) That by reason of said policy of itisurance these libellants became liable to pay and did pay to said sait company the said $2.501.25, as it was bound to do, and the said sait company assigned to said libellants all claims and rights of action against said Liberty Nb. 4 arising out of the sinking of said barge ; (12) which damages the owner of the Liberty No. 4 refuses to pay; and (13) the said Liberty No. 4 is within the jurisdiction of this court; and (14) all the promises are within the admiralty jurisdiction of this court. �If this is an action brought on a contract, then, as between the libellants and the steam-boat Liberty No. 4, there is no privity in law. Is the libel, however, sounding in contract, or is it in tort ? The libel sets out the contracte, but that is more as a history of the matter than as a foundation for the action. I think the libel is one against the defendant, not for the vio- lation of a contract which it had entered into, but it is a libel for the wrongful and negligent acts of the defendant in iailing to carry out what it was bound to when it undertook to tow the barge to Cincinnati. The ninth clause of the libel is as f ollows : �And libellants further say that by reason of the negligence of, and fail- ure to exercise ordinary care, skill, and diligence in the management and control of said Liberty No. 4 and her said tow by, the master and other offlcers, agents, employes, and other persons navigating said steam-boat Liberty No. 4 ; and by reason of the negligence and want of ordinary skill and care, and by mismanagement, of the said master and said other offl- cers, agents, and persons navigating said steam-boat Liberty No. 4, by which the said barge Speed was brought into a place and position of great and unnecessary peril and danger; and by reason of the bad, un- sound, and unflt condition of said steam-boat Liberty No. 4 and her ma- chinery ; and by reason of the defective, unsound, unflt, and rotten con- dition of the cylinder timber of said Liberty No. 4 ; and by reason that said steam-boat Liberty No. 4 waa not seaworthy at and before the time ��� �