apart as a homestead after judgment, but before a sale, by filing a homestead deed, is not questioned. In Whiteacre v. Rector, 29 Grat. 714, 26 Am. Rep. 420, the Court of Appeals of Virginia decided that the homestead exemption cannot be claimed against a fine due the commonwealth, uposed for a violation of the criminal laws. So far as I am advised, this decision, rendered in 1878, has never been overruled, or even questioned, by the Court of Appeals. I am compelled to treat it as the proper construction of the state law. In Frazier v. Baker (1881) 5 Va. Law J. 565, the Court of Appeals held that the homestead exemption could not be claimed against a judgment for a tort. In Burton v. Mill (1884) 78 Va. 468, the same court made the same ruling as to a judgment for damages for breach of promise to marry, holding such damages to be not a debt contracted, but a quasi tort. It is true that the late Judge Hughes, United States District Judge, Eastern District of Virginia, in Radway's Case (1877) 3 Hughes, 609, Fed. Cas. No. 11,523, held to the contrary. But the rulings of the state Court of Appeals (the court of last resort) are, I conceive, of higher authority on the construction of the state


"By Rev. St. 1042, a poor convict who has been imprisoned thirty days solely because of the nonpayment of a fine or fine and costs may be released on making oath that he has no property (exceeding twenty dollars in value) except such as is by the state law exempt from being taken on civil precept for debt. This language clearly includes the property exempt from sale for a judgment on a contract debt. The bearing of this section on the question will be considered later. At present the point of most interest is to learn where, if at all, Congress has shown an intent to give to the federal government in the enforcement of fines imposed in Virginia the same rights that are exercised by the state of Virginia in enforcing fines imposed by the state courts for violation of the state criminal laws.

"By section 916, Rev. St. [U. S. Comp. St. 1901, p. 684], the party recovering a judgment in any common-law cause in any circuit or district court shall be entitled to similar remedies upon the same * as are now provided in like causes by the laws of the state. It is settled that the language 'the party recovering a judgment' includes the government. Green v. U. S., 9 Wall. 655, 19 L. Ed. 806; Fink v. O'Neil, 106 U. S. 272, 1 Sup. Ct. 325, 27 L. Ed. 196. But this section in terms applies only in 'common-law causes.' If no similar statutes had been construed, we might be at liberty to treat the term 'common-law causes' as including all causes, civil and criminal, other than equity or admiralty causes. But section 721, Rev. St. [U. S. Comp. St. 1901, p. 581], providing that the laws of the several states shall be regarded as the rules of decision in trials at common law in the courts of the United States, has been construed as not applying to criminal trials. U. S. v. Reid, 12 How. 361, 3 L. Ed. 1023. Section 858, Rev. St. [U. S. Comp. St. 1901, p. 659], which, after providing certain rules as to the competency of witnesses, reads: 'In all other respects, the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law and in equity and admiralty,' has also been held not to include criminal trials. Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; U. S. v. Hall (D. C.) 53 Fed. 352. In view of the similarity of the language used in the three statutes and of the construction put upon this language by the Supreme Court, I do not feel at liberty to construe section 916 as applying to judgments in criminal cases.

"In this connection section 1041, Rev. St. [U. S. Comp. St. 1901, p. 724], has given me some trouble. It provides that judgments in criminal and penal cases, as to the fine or penalty, may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced. But the best conclusion I can reach is that this section means nothing more than that the government, in enforcing judgments for fines and penalties, is not restricted to mere imprisonment of the defendant; that it may proceed also by execution against the defendant's property, as in civil cases. It would seem, therefore, that Congress has not seen fit to provide any greater rights for the federal government when collecting fines imposed in criminal cases by execution than are given individuals in the collection of private debts. It follows that the mere fact that the state of Virginia

in collecting fines is not hampered by the homestead laws, does not necessarily give the same right to the federal government. It is true that in this state an individual recovering a judgment for a tort has the right to subject the homestead. But nothing follows from this fact except that when . the government recovers in Virginia in a civil action for tort its judgment can be enforced against the tort-feasor's homestead. It does not follow that the government's judgment in a criminal case can likewise be enforced against the convict's homestead. The analogy between a fine and a judgment in tort is strong; but it is only an analogy. If Congress had intended that the government should have greater rights in the states where the homestead is not exempt from torts, or in the two states (Thompson, Homestead, § 386) where commonwealth fines are not subject to exemption, than in other states, it would have made some specific provision for such cases. It is rather startling to be led to the conclusion that in this state the federal government has not as great rights in collecting fines as has the state, and that it has not even as great rights as has an individual recovering a judgment in tort. But I am forced to this conclusion not only because of the absence of any federal legislation specifically giving the government such rights, but also because of the intent evidenced by section 1042. This section provides for the discharge from prison of a convict if he has no property exceeding $20 except such as is exempt from civil precept for debt. This implies that the exemption is allowed the convict notwithstanding that his homestead is not by the state law exempt from process for the collection of a state criminal judgment; otherwise, why 'civil precept' for debt? Again, imprisonment for debt, or for the nonpayment of a fine, was ever imposed merely to coerce payment thereof. It would be anomalous to discharge one imprisoned for nonpayment of a fine if the very affidavit made to effect his release showed that he had, or might have, property subject to the payment of the fine. If it has been the intent of Congress to subject the homestead in Virginia and Georgia to fines because these two states subject it, I think some special and specific provision would have been made as to these two states. The absence of any such provision leads to the belief that Congress, whether to have uniformity throughout the United States in the collection of fines, or because it adopted the view that the homestead was intended for the benefit of the family, and as a shield against the improvidence, indolence, or criminality of the head of the family, intended that in all the states the government should have no greater rights against the homestead than the state law gives to the least favored individual judgment creditors.

"It is certain, as seen by its own homestead statutes, that Congress has adopted the view that the general policy of the homestead exemption laws is a wise one. It is also certain, as is shown by section 1042, that, at least in the majority of the states, Congress does not intend that the homestead shall be subjected to the payment of fines imposed for violation of the federal statutes. The federal government is great enough and wealthy enough to make very plausible the contention that Congress intended that in every state having any sort of homestead exemption laws the families of poor convicts should have the benefit of such exemptions. These views, which I must confess are not entirely satisfactory, are in some measure strengthened by the following language, used in the opinion in Fink v. O'Neil, 106 U. S. 272, 1 Sup. Ct. 325. 27 L. Ed. 196: 'Nothing can be more clear than this [referring to section 1042, Rev. St.] as a recognition by Congress that in case of execution upon judgments in civil actions the United States are subject to the same exemptions as apply to private persons by the law of the state in which the property levied on is found, and that by this provision in favor of poor convicts it was intended, even in case of sentences for fines for criminal offenses against the laws of the United States, that the execution against property for its collection should be subjected to the same exemptions as in civil cases.'

"It follows that the demurrer must be overruled.

"No opinion is expressed as to the legality of a levy of execution on real estate in a criminal case, as it is unnecessary to determine this question." The decree appealed from is affirmed.



(Circuit Court of Appeals, First Circuit. February 4, 1903.)

No. 456.


A tug with a barge in tow on lines 100 feet long, passing down the Merrimac river at night on an ebb tide, with the weather dark and rainy and a fresh wind blowing, held in fault for a collision between the barge and a bridge pier, where, although the passage was narrow and required the exercise of care and precaution, she proceeded at full speed and kept a course not in line with the passage until within 150 feet of the bridge, when the master changed her course and entered the passage before the tow was straightened out on her course and without looking to ascertain her position, the result being that the barge, though using her best efforts, was not able to avoid the pier.


The provision of section 3 of the Harter Act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]) that, if the owner of a vessel shall exercise due diligence to make the said vessel in all respects seaworthy, and properly manned and equipped and supplied, neither the vessel nor her owners shall be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel, cannot be invoked to relieve a vessel from liability for loss of cargo resulting from the gross fault or negligence of the master, sufficient to raise a presumption of his incompetency, merely upon a showing that the owners had no knowledge or reason to believe that he was incompetent, that being insufficient to establish the "due diligence" required by the statute, the burden of proving which, under such state of facts, rests on the vessel. Quære, whether the statute applies in behalf of a tug which is towing a barge transporting cargo where both tow and tug are in the same ownership.

Appeal from the District Court of the United States for the District of Massachusetts.

Eugene P. Carver (Edward E. Blodgett, on the brief), for appellant. Arthur H. Russell, for appellees.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

ALDRICH, District Judge. In this case, disaster came to the barge Zulu and her cargo by reason of her being in collision with the upper point of one of the piers of the Rocks Bridge in the Merrimac river, while she was in tow of the steam tug Cygnet bound down the river for Newburyport, and by reason of such collision the barge was capsized and her cargo lost. The only question is one of fact, and is whether the disaster was caused by the fault of the tug or by that of the barge.

The passage between the piers of the bridge is a narrow one, and the currents incident to the ebb and flow of the tide at that point,

12. Statutory exemption of shipowners from liability for loss, see note to Nord-Deutscher Lloyd v. Insurance Co. of North America, 49 C. C. A. 11.

taken in connection with the tortuous course of the channel and the narrow passage, create a situation which requires the exercise of care and precaution in making the voyage at this point, and we think the care and precaution of the tug were not what they should have been under the circumstances. According to the testimony. of the master of the tug, who was called by her owners, the night was dark and rainy, and the wind quite fresh from the eastward; and, taking everything into account, we think the situation called for greater precaution and a higher degree of skill and diligence on the part of the tug than were exercised on the occasion in question. The barge was being towed by two hawsers attached to the towing bitts on the bow of the barge. These hawsers were about 100 feet in length. At the time of the accident the tug having the barge in tow was proceeding down the river on an ebb tide, and, after passing the red buoy above the bridge, the course of the tug was such as not to be in line with the opening between the piers of the bridge, and it was necessary, therefore, to make a turn or change in the course in order to make the passage. We think that reasonable care and prudence, under the circumstances, required the tug to change her course at such a time and at such a point as would enable her to straighten out the line before entering the opening between the piers. This was not done. The change in her course was not undertaken until the tug was within 150 feet of the bridge, and the consequence was that she had not so far completed the turn, coming in on a swing from the West Newbury side of the river, as to straighten out the tow at the time the tug passed the point of the pier with which the barge was brought into collision. At the time of the disaster the tug was proceeding at full speed, and at the rate of 32 or 4 miles an hour through the water. Proceeding at this rate, with the pier on the inside of the circle, and entering the passageway before the line was straightened, the inevitable result was to bring the barge closer to the point of the pier than the tug herself was at the time she passed that point, and as a consequence the barge was brought into actual collision with the head of the pier around which the tug was making the turn.

We do not think it necessary to deal with the question of the competency of the master of the barge, for the fact appears that those on the barge did all they could to avert the collision by at once putting her wheel hard astarboard, thereby using all the power within their control to avoid the disaster. The movements of the barge were practically controlled by the tug. The tug determined the manner of making fast to the barge, and the time and manner at which the passage should be attempted. It appears that the captain. of the tug neither looked to see whether the tow was straightened out on its course, nor received any information from the lookout in that respect after passing the red buoy. We think it was not reasonable for the tug, with such a length of tow, to delay the change of course until she was within 150 feet of the bridge. If, under the circumstances of the current, tide, weather, and darkness, the tug could not have changed her course seasonably, it was her duty, as master of the situation-especially as she is presumed to have

determined the time of sailing-to have lain by until the conditions secured safety. As a result, we think the collision was due to the fault of the tug, and not that of the barge.

The District Court, in its decree, gave the owners of the tug the benefit of the limitation liability provided by sections 4283-4285, Rev. St. U. S. [U. S. Comp. St. 1901, pp. 2943, 2944]. There seems to be no question that this portion of the decree was justified. In fact, the petition in behalf of the appellant admits this. Consequently, while there must be in the District Court a new decree adjudging the tug in fault, and giving the Etna Insurance Company the benefit of its petition so far as consistent with the limitation of liability, that portion of the decree appealed from which concerns that limitation must be conserved in the new decree to be entered in accordance with our conclusions. Questions of interest, expenses attending the appraisal, and the taxable costs in the District Court, must be disposed of as directed in our opinion and judgment of September 16, 1896, in The H. F. Dimock, 77 Fed. 226, 23 C. C. A. 123.

The decree of the District Court is reversed, and the case is remanded to that court, with directions to enter a decree in accordance with our opinion passed down this day, and the Etna Insurance Company will recover its costs of appeal.

On Rehearing.

(October 23, 1903.)

PUTNAM, Circuit Judge. The steam tug Cygnet was engaged. in towing a barge laden with cargo from Haverhill down the Merrimac river, in the course of which service the barge came in collision with the pier of a bridge, and, with her cargo, was lost. Thereupon the registered owners of the tug filed a petition, in the District Court for the District of Massachusetts, praying for limitation of liability, alike under sections 4283-4285, Rev. St. U. S. [U. S. Comp. St. 1901, pp. 2943, 2944], and under the so-called "Harter Act," namely, the act entitled "An act relative to navigation of vessels," etc., approved Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946], relying on the third section, as follows:

"Sec. 3. That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped and supplied, neither the vessel, her owner or owners, agent or charterers shall become or be held responsible for damage or loss resulting from faults or errors in navigation, or in the management of said vessel, nor shall the vessel, her owner or owners, charterers, agent or master, be held liable for losses arising from dangers of the sea or other navigable waters, acts of God or public enemies, or the inherent defect, quality or vice of the thing carried, or from insufficiency of package or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service."

In accordance with the settled practice under statutes limiting the liability of owners of vessels, the petition denied any fault on the part of the tug, but claimed limitation in the event the court found contrary to the contention of the petitioners in that particular; so

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