lands. The third count charges that the embankment was constructed to an unreasonable height, and extended so near to, and out so far in, the edge of the creek as to divert the water over plaintiff's land and wash away his bottom lands, banks, mill, etc. The fourth count charges that the embankment was built in a negligent, careless, and improper manner. The fifth count charges the negligent and careless construction of the embankment on the side of the creek opposite plaintiff's land and mill. All of said acts are alleged to have damaged plaintiff's land and mill.

The defendants jointly pleaded "not guilty," and the parties went to trial on the general issue. The jury returned a general verdict for plaintiff, and assessed his damages at $2,000. Judgment was rendered on the verdict against defendants jointly, and, upon appeal to the Supreme Court of Appeals of Virginia, this judgment was affirmed.. Carolina, C. & O. R. Co. v. Hill, 119 Va. 419, 89 S. E. 902.

It would seem that plaintiff's cause of action, as set out in one or more counts of his declaration, was for the improper and wrongful location by the engineers of the roadbed and embankment along the banks of the creek, whereby he sustained the injuries of which he complains, while other counts are capable of the construction of an allegation of a negligent manner of performance of the work. For either wrongful act or trespass the defendants in that action were jointly liable to plaintiff. The liability of Childress & Taylor to Rinehart & Dennis Company for indemnity or exoneration for the amount paid by it in satisfaction of the judgment is dependent upon other principles of law. Defendants in error, Childress & Taylor, having introduced in evidence the "final estimate" of the engineer and the contract under which the work was performed, were entitled to recover the amount certified to be due, unless the Rinehart & Dennis Company by competent testimony, established either payment or a set-off to the full or partial amount of the claim. We concur with the District Judge that this was an affirmative defense, the burden of which was upon Rinehart & Dennis Company.

The law being settled that, save in exceptional cases, no action will lie between joint tort-feasors for contribution or exoneration, it became the duty of the Rinehart & Dennis Company to show that their claim. for exoneration came within the exceptions to the general rule. This they could do, in the light of the contract, by showing either that, in the action brought by Hill against them jointly, the recovery was based upon some negligent act for which Childress & Taylor were alone liable, as for negligent performance of the work, or that the recovery was based upon some act of Childress & Taylor within the provisions of the contract against which they contracted to indemnify Rinehart & Dennis Company. The declaration alleged that the damage was sustained by reason of the joint negligence of the parties, in one of several ways a joint trespass; a wrongful erection of the embankment; an unreasonable location and height of the embankment; a careless and negligent manner of doing the work. For injury sustained by Hill for one or more of the alleged wrongful acts, such as the location of the embankment, or its height, as fixed by the plans and specifica

(257 F.)

tions of the engineer, Childress & Taylor were not responsible to Rinehart & Dennis Company; but if the injury was inflicted upon Hill by the negligent manner of doing the work, they were responsible. Again, if the damage was sustained "by depositing materials, it came within the terms of the provision for indemnity."

In the absence of any specific or special pleas filed by the plaintiff in error in this action, by which the court and the defendants in error were informed as to its contention, it was proper and in accordance with the well-settled practice for the court to call upon counsel to state or avow in what manner they proposed to make the transcript relevant to the issue. In the absence of such evidence, the transcript was irrelevant and incompetent. As stated by the learned District Judge, its relevancy, and therefore its admissibility, was dependent upon plaintiff in error showing by evidence aliunde the transcript that the liability to Hill arose solely from the negligence or other wrongdoing of Childress & Taylor, or that an ascertainable definite part of the damages recovered was due to such negligence. The court may have admitted the transcript, and, upon failure of plaintiff in error to follow it up with such evidence, have stricken it from the record, or directed a verdict upon the record. The method or order of presenting the question was within the sound discretion of the District Judge.

Plaintiff in error is entitled to have its exception to the direction of a verdict on this claim considered as if it had introduced the transcript and rested. What occurred is equivalent to the declaration, by counsel, that this was what they proposed to do. By frankly saying to the court that they could not avow that they would introduce evidence tending to show a condition which would make the transcript relevant and a link in a chain of evidence tending to establish their right to have the amount paid in discharge of the judgment, deducted from the balance due defendant in error, they conceded that, with the transcript in evidence, such would be their attitude before the court. From this viewpoint, we concur with the District Judge that they had failed to carry the burden of proof which the law imposed upon them.

[2] For the reasons stated by the District Judge, we concur with him that the record, sent to the Court of Appeals of Virginia, containing the evidence, or only so much thereof, as was deemed necessary to present appellant's exceptions, was not competent. The issue being tried in that case was not the same as in this. The exceptions to the charge of the court in regard to the other items in the declaration were not pressed. The contention in regard to them was fairly submitted to the jury.

The judgment of the District Court will be affirmed.

NEW YORK, P. & N. R. CO. v. WILKINS et al. THE N. Y., P. & N. BARGE NO. 4. THE DELMAR.

(Circuit Court of Appeals, Fourth Circuit. January 20, 1919.)

No. 1641.

COLLISION 104-FAULT-Burden of PROOF-VIOLATION OF HARBOR RULES. A tug leaving the port of Norfolk, with a tow exceeding by 300 feet the length prescribed by the harbor regulations, held to have the burden of showing that such violation did not cause or contribute to a collision in Elizabeth river between the tow and another vessel.

Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge.

Suit in admiralty by Lillie Wilkins, administratrix of the estate of Alexander Wilkins, deceased, and others, against the tug Delmar and the N. Y., P. & N. Barge No. 4; the New York, Philadelphia & Norfolk Railroad Company, claimant. Decree for libelants, and claimant appeals. Affirmed.

For opinion below, see 248 Fed. 823.

Floyd Hughes, of Norfolk, Va. (Thomas H. Willcox and Hughes & Vandeventer, all of Norfolk, Va., on the brief), for appellant.

John W. Oast, Jr., and R. T. Thorp, both of Norfolk, Va., for appellees.

Before PRITCHARD and KNAPP, Circuit Judges, and CONNOR, District Judge.

PRITCHARD, Circuit Judge. This libel was filed to recover for loss of life of Alexander Wilkins, on the 29th day of October, 1916, about 6 o'clock p. m., caused by a collision at a point northerly of and in the vicinity of the can buoy at the entrance to the West Norfolk channel from the main channel of the Elizabeth river, Norfolk, Va., between an unnamed gasoline launch, in which the deceased, Edward Bishop, Elizabeth H. Simmons, and Lubertia Howell were at the time, and barge No. 4, with 28 loaded railroad freight cars on board, in tow of the tug Delmar, whereby the launch was capsized and lost, and the four persons on board drowned, and is an appeal to this court from the District Court of the United States for the Eastern District of Virginia, at Norfolk. Administrators for the three persons named, other than the libelant, filed their petitions in said libel case under the rule.

The gasoline launch was about 30 feet long, 6 feet broad, 32 feet deep, with a wooden house or cabin extending from a point about 6 feet abaft the stem and extending aft to a point about 6 feet from the stern, and at the time of the accident was in charge of Wilkins, her owner and master, and Bishop was acting as engineer. Barge No. 4, designed for the transportation of railroad freight cars between Norfolk and Cape Charles, is 340 feet long, 50 feet broad, and 1,174 tons net register, and was being towed on a hawser of some 80 or

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(257 F.)

90 fathoms long, by the steam tug Delmar, 112.3 feet long, 26.9 feet broad, and 11.7 feet deep, and 130 tons net register, 240 tons gross.

The libelant alleges that on the date named the launch was proceeding at about 6 miles an hour, up the Elizabeth river to the westward of the channel, bound for Norfolk, the course of the launch being in a general southeasterly direction, parallel to the main channel extending between Lambert's Point and Pinner's Point; and the Delmar, with the barge in tow, was proceeding from the N. Y., P. & N. terminal at Port Norfolk, bound for Cape Charles. As the tug proceeded out of the West Norfolk channel, and began to shape her course for the northward, the launch stopped her engines, and waited for the barge to follow the tug; but, instead of doing so, it made a shorter turn than the tug, and took a course to the westward of the can buoy at the entrance of the West Norfolk channel, heading in the direction of said launch, which was drifting under the influence of a strong flood tide. The launch immediately proceeded to back to avoid the barge; but the latter swung in towards the launch faster than the launch could get away, so that the cable from the barge to the tug caught the bow of the launch, tipping it over on its port side, where it lay until the forward part of the barge struck it, and carried it under water, drowning all on board, and the launch was a total loss. At the time of the collision the weather was cloudy and calm, and the tide flood.

The libelant charges the following faults against the Delmar: That she was navigating in the harbor with a tow which, including the length of the Delmar, exceeded the length of 700 feet, contrary to the harbor regulations, the hawser being 540 feet long; that she was not manned by a competent master and crew; that she was navigated without a competent lookout properly stationed and attending to his duties; that she was proceeding at an illegal rate of speed, and on the west side of the channel, and that she did not observe the launch lying to the westward of the channel, and the course of her tow, in time to take precautions against running down the launch; and further charges as faults against the barge that it was not managed by a competent master and crew; that it did not have a competent lookout, properly stationed and attending to his duties; in that it was part of a tow which including the length of the Delmar, exceeded 700 feet, and navigated in the harbor of Norfolk; that it did not follow the course of the Delmar, but steered to the port and to the westward of the can buoy at the entrance of the West Norfolk channel, and thereby without warning ran down the launch, which was waiting for it to pass on the course of the tugboat; and that, when the collision became imminent, the towing hawser was not turned loose from the barge, as it easily could have been.

The respondent admits collision with a gasoline launch at about the time stated in the libel, but contends that it occurred in the main channel of the Elizabeth river, nearly opposite black spar buoy No. 11 and denies generally the facts relating to the collision as alleged in the libel, and particularly charges that the launch, before and when it passed the Delmar, was proceeding up the river on the extreme eastern

edge of the channel, the Delmar at the time proceeding out of the West Norfolk channel, and shaping her course to the northward, so as to keep to the starboard side of the main ship channel, after passing Lambert's Point piers. It also denies that the barge did not follow the tug, or that it headed in the direction of the launch, or that the launch was drifting under the influence of a strong flood tide, and alleges that the tug, proceeding down the channel on her usual and proper course, with the barge following in her wake, passed the launch starboard to starboard, when about opposite the merchandise piers at Lambert's Point, the launch at that time being several hundred feet to the eastward of the tug, and well over on the eastern side of the main ship channel, the launch and tug having interchanged "salute" whistles, when about abreast of each other. Shortly afterwards the tug heard distress signals from the barge, and then observed that the launch had suddenly and unexpectedly and without. warning changed her course in the wake of the tug; that the bow of the launch struck the forward end of the barge and immediately sank; that nothing could have been done, either on the part of the tug or the barge to avoid the collision, and no other maneuver was possible, save to stop the tug's engine, which was done.

Respondent also charges that the launch was at no time on the port side of the tug or barge, but, on the contrary, that she was far to starboard; that the launch was navigated by unskillful, unlicensed, and negligent navigators; that she was not in charge of an experienced and careful master; that she had no efficient lookout properly stationed; and, further, that the decedent, Wilkins, being master of and in charge of the launch's navigation, was guilty of negligence contributing to the collision, which is a bar to a recovery by his administratrix herein.

The court below entered a decree awarding $7,500 damages for the loss of the life, of Wilkins, $600 for the loss of the launch, $4,500 for the loss of the life of Edward Bishop, and $1,500 each for the loss of the lives of Elizabeth H. Simmons and Lubertia Howell. court below, among other things, found as a fact that

The

"The tow, as well as the hawser in use at the time of the collision, were both greater in length than prescribed by the state and federal statutes. The tug was 129 feet long, the hawser 90 fathoms, or 540 feet, and the barge 340 feet, making more than 1,000 feet for the entire tow, which exceeded the local regulations by 300 feet, and the hawser 15 fathoms, or 90 feet, longer than allowed by the federal statutes."

It appears that the waters between the port of Norfolk and the terminal at Cape Charles consist of narrow channels and anchorages, more or less dangerous at all times, and extremely so when a tug with. a tow leaves either one or the other of the terminals mentioned with a 540-foot tow line, and required to traverse a circuitous course.

Counsel for the appellant insist that this rule only applies to seagoing barges

"and the department that promulgated these regulations ruled on January 25, 1909. six days prior to the regulations taking effect, that these barges were not seagoing barges subject to such regulation, a fact which has been before the court in all the cases in which these car floats have been involved."