THE J. G. ROSE

THE J. G. ROSE. (Circuit Court of Appeals, Second Circuit. December 7, 1925.) No. 118. 1. Collision <§=142 — Negligence causing collision not merged with riegligence in falling to prevent sinking of damaged boat. Negligence of tug causing collision between tows is not merged in negligence of tow’s barge-master in failing to take steps to prevent sinking, so as to preclude recovery of damages attributable to collision. 2. Collision <©=142 — Where boat slightly damaged by collision sunk, due to negligence of person in charge, damages attributable to collision only recoverable. Where tow slightly damaged by collision due to tug’s negligence, sunk due to negligence of person in charge in failing to promptly beach or siphon her, only damages directly due to collision were recoverable. Appeal from the District Court of the United States for the Southern District of New York. libel by William Farrell & Sons, Inc., against the steam tug J. G. Rose, her engines, etc.; the Cornell Steamboat Company, claimant. Decree for respondent, and libel-ant appeals. Decree set aside, and cause remanded, with directions. Libelant claims that its boat Farrell was in a hawser tow, lying substantially still off the Hoboken pier line. The helper tug J. G. Rose went in to the slip and brought out several barges to he added to the tow. In making the addition, the Rose brought a barge in contact with the vessel astern of libelant’s "boat, and drove that vessel into the Farrell’s stern. About two hours and a half later the Farrell sank, losing her cargo and incurring much additional damage that had nothing to do with her stern. For the whole loss libel was filed, and the court below, although it apparently thought there was a slight collision, as alleged, held “that the immediate damage thereby caused” was “merged in the total * * * loss” due to the sinking, which sinking proximately resulted from the negligence of the man in charge of the Farrell, who failed to give timely notice or timely to seek assistance in respect of the comparatively trifling injury to his stem. That injury, according to survey introduced by claimant, could have been repaired for not over $202. From decree dismissing libel, libelant appealed. Macklin, Brown & Van Wyck, of New York City (Horace L. Cheyney, of New York City, of counsel), for appellant. Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Robert S. Erskine and Henry P. Elliott, both of New York City, of counsel), for appellee. Before HOUGH, HAND, and MACK, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. The court below found that there was a collision as alleged, and we are not disposed to disturb that finding. We also accept the finding below that there was negligence on the part of the bargemaster, and are of opinion that his negligence was greater than claimant’s. We also agree that, had prompt steps been taken to either beach or siphon the Farrell, there would have been no serious result. We cannot agree that the negligence of claimant’s tug was or could be “merged” in the subsequent and greater negligence of libelant’s bargemaster. There is no such thing as a merger of this kind. We hold it shown that the Rose’s negligence caused a slight collision, the result of which (according to the only testimony of record) could have been repaired for not over $202, and that, but for the subsequent negligence of the bargee, there would have been no such loss as is asserted in'the libel, viz. upwards of $8,000. Thus we have two sets of damages, one proximately caused by fault imputable to libelant, the other by fault imputable to claimant. But there is difficulty in stating exactly the amounts of these different damages. There has been an inclination to take the easiest way out of such difficulties, and divide damages, or give half damages, as might be appropriate. The Silvia (D. C.) 2 F.(2d) 305. But there is no hard and fast rule. We have recognized that even “novel” damage divisions may, if equitable, be looked upon with favor. The Little Silver, 84 F. 508, at page 512, 28 C. C. A. 476. In this case we think it is possible, on the proofs as they stand, to say that libelant’s prima facie damage is not over $202. That damage has been shown a good deal more clearly than was a considerably larger loss recognized in The Transfer No. 8 (D. C.) 88 F. 551, a decision of Brown, District Judge, of which we approve. The decree is set aside, with costs, if earned as below indicated, and the cause remanded to the lower court, with directions at the option of libelant to pursue one of the following courses: (1) Enter a decree for $202, with interest and the costs of both courts; or (2) Refer the cause to a commissioner, with directions that, if libelant fails to prove collision damage exclusive of demurrage in excess of $202, he shall recover no more than the amount of damage so proven, without interest, and without costs, in either court.