The Wanata

APPEAL from the Circuit Court of the United States for the Southern District of New York.

This was a libel against the 'Wanata,' to recover $23,000 damages caused by her colliding with the pilot-boat 'Josiah Johnson' about nine o'clock P.M., on the 6th of March, 1869. The libellant, Johnson, was the owner of the pilot-boat, and the others were the owners of certain clothing and other property on board of her. The 'Wanata' was on a voyage from New York to Charleston, and the wind was very strong from the north-west. The pilot-boat, having split her foresail, was at anchor off the coast of New Jersey, about half a mile from the shore, in four fathoms of water, and from fifteen to twenty miles north of Barnegat Light. She was struck on her starboard side by the 'Wanata,' and sank in a few minutes. The libellants allege that the collision happened through the fault of the 'Wanata,' in not keeping a proper lookout, and in sailing at too great a rate of speed. The claimants maintain that the collision was caused by the negligence of the pilot-boat in anchoring at an improper place, in not exhibiting a proper light, and in not keeping a proper watch on her deck.

The other facts in the case are stated, and the assignment of errors set forth in the opinion of the court.

The vessel was seized by the marshal, and was subse quently released from his custody on her claimants entering, with sureties, into a stipulation for costs in the sum of $250, and into one for value in the sum of $16,000, her appraised value.

The District Court was of opinion that the 'Wanata' was wholly at fault, and entered a decree against her, awarding the libellants $16,000 on account of the loss of the pilot-boat, clothing, and interest, and $305.27 as costs.

The claimants appealed, giving bond for $2,000 in the usual form with the same sureties. The Circuit Court, on appeal, decreed that the libellants recover against the stipulators for value $16,000, damages by reason of the collision, and against the stipulators for costs and on appeal for the costs in the District Court, amounting, with interest, to the sum of $323.12, and also the costs in the Circuit Court, which, including the interest on the amount of the damages aforesaid from the time of the decree in the District Court, were taxed and adjusted at the further sum of $1,085.35, amounting altogether to $17,407.47.

The claimants having entered into an undertaking with sureties in the sum of $36,000, conditioned to prosecute their appeal to effect, and answer all damages and costs, upon failure to make it good, brought the case here.

Mr. Joseph H. Choate for the appellants.

The collision was the result of inevitable accident, and the 'Wanata' was therefore guilty of neither fault nor negligence. The Virgil, 2 Wm. Rob 201; 1 Pars. Marit. Law, 187; The Thornly, 7 Jur. 659; The Ebenezer, id. 117; The William Lindsay, 29 L. T. N. S. 355; The Amio and The Amelia, id. 118; The Grace Girdler, 7 Wall. 196; The Morning Light, 2 id. 550.

The 'Wanata' having been released upon the filing of a stipulation for value in the sum of $16,000, the stipulation took the place of the res in the further progress of the cause, and bore no interest. Therefore, the decree of the Circuit Court adding interest to that, and including it in the costs, is wholly without precedent or authority. Hemmenway v. Fisher, 20 How. 258; The Ann Caroline, 2 Wall. 538; The Steamer Webb, 14 id. 406.

The circumstance that the decree of the District Court was for the exact amount of that stipulation does not alter the principle or increase the power of the Circuit Court. All that the latter had before it representing value was the stipulation which had been substituted for the res.

Nor could interest as damages in excess of the value of the res be awarded against the obligors in the bond, upon appeal from the District to the Circuit Court; for interest is neither costs nor damages, within the meaning or purpose of that bond. A bond given for costs and damages on appeal in such a suit as this does not add to the original stipulation for value, but covers such damages only as the appellee is entitled to recover; and the above-cited cases establish that he is not entitled to interest. In admiralty, the cause in the Circuit Court is heard de novo; and that court awards damages by an original decree, and, of course, without interest. The bond for costs and damages on appeal might be made available not only for the costs of appeal, but for a deficiency up to and within the amount of the stipulation for value occasioned by the insolvency of the stipulators, but never in excess of it, by way of interest or otherwise.

It is obvious, in this case, that the learned circuit judge, in his opinion, meant only to award as damages the $16,000, the amount of the res. The addition of interest crept into the decree. But even there it is not adjudged as damages. It is awarded specifically as interest and as part of the costs, for which there was no power in that court.

Of course, in The Ann Caroline and The Steamer Webb similar bonds for costs and damages on appeal were given as in this case, and in the same form. No appeal could be taken without them. A d if the value of the res in court could be thereby increased, the appellees in those cases would not have been limited, as they were strictly, to the amount of the original stipulation for value; but this court would have awarded, in addition, interest on that amount, at least to the extent of the appeal-bond, after providing for the costs on appeal. The question, in any form in which it may be presented, has been determined by this court.

As to the decree of the District Court, so far as it awarded costs in excess of the $250 stipulated for costs, it will be conceded to be erroneous.

If interest should be claimed in this court upon the decree of the Circuit Court rightly adjusted, it is submitted that a review of the evidence will more than confirm the doubts expressed in the opinion of the circuit judge as to the damages awarded, and satisfy this court that $16,000 now, without interest, is an ample indemnity for all the losses sustained by the libellants. In the exercise of the discretionary power reserved in this court, as laid down in Hemmenway v. Fisher, 20 How. 255, to add further damages by way of of interest to the $16,000 would give the libellants more than they ought to have, and would work injustice to the appellants.

Mr. William Allen Butler, contra.

The courts below having upon the same proofs found that there was no fault on the part of the pilot-boat, and that the collision was caused solely by the fault of the 'Wanata,' this court, unless mainifest error is shown, will not reverse the decrees. Every presumption is in favor of them. The Juniata, 93 U.S. 337; The Hypodame, 6 Wall. 216; The Grace Girdler, 7 id. 196; The Quickstep, 9 id. 665; The Spray, 12 id. 366; The Commerce, 16 id. 33; The Ship Potomac, 2 Black, 581; The Scioto, Daveis, 359.

The attempt to excuse the schooner on the ground of inevitable accident wholly fails. The Morning Light, 2 Wall. 550; The Virgil, 2 Wm. Rob. 201.

There is no error as to the amounts awarded. The decree of the District Court was properly limited to the amount of the stipulation for value. There was no decree against the stipulators for either the $16,000 or the costs, but only against the schooner, with a direction that the amount awarded, with the costs, be paid out of the proceeds of the stipulations for costs and value, when paid into the registry of the court. Before any such payment was made, the appeal to the Circuit Court was taken. There was therefore no error.

The bond in the sum of $2,000 given by the claimants, on appeal to the Circuit Court, was for all damages and costs which should be awarded against them, as appellants, if they failed to make their appeal good. The total amount decreed by the Circuit Court was $17,407.47, a sum less than the amount of the stipulation and appeal-bond.

The bond given on the appeal to this court is for the sum of $36,000, and is conditioned to answer all damages and costs. The interest on the amount of the decree of the Circuit Court is the only addition to be made by way of increase to the damages below, and to this libellants are entitled.

Rule 29 of the General Rules of this court provides that supersedeas bonds in the Circuit Court must be taken that the appellant shall prosecute his appeal, and answer all damages and costs if he fail to make his plea good; and that 'such indemnity, including 'just damages for delay,' and costs, must be for the whole amount of the decree, and interest, on the appeal.' The plain distinction between the present case and The Ann Caroline and The Steamer Webb, cited by the appellants, is, that in those cases the actual assessment and award exceeded the amount of the stipulation for value. Here the amount was carefully restricted to the stipulated value; and the only question is, whether interest as well as costs shall follow an affirmance of the decree of the Circuit Court. There is no ground for depriving the libellants of interest.

MR. JUSTICE CLIFFORD delivered the opinion of the court.