The Franconia

If there was any fault on the part of the Franconia which contributed to the injury of the libelant’s boat, the libelant, as the owner of the tow and innocent of fault, is entitled to pursue the Franconia. Assuming that the tug was primarily responsible for bringing about the situation in which the collision took place, the steamer must, nevertheless, respond to the libelant for the damages he sustained, if the exercise of due care upon her part would have prevented the ultimate consequences. At law, the party injured by the concurring negligent acts of two or more wrong-doers may pro*152ceed against all of them jointly, or any one of them severally, ancf recover his entire damages. And, as to an innocent tow, or as to cargo not owned by one of the two offending vessels, the same right exists in admiralty, and an apportionment of the loss on principles, of admiralty between the offending vessels will not be made, but the-owner of. the tow or the cargo may resort to either or both of the-offenders for his whole loss. The Atlas, 93 U. S. 302; The Alabama and Gamecock, 92 U. S. 695.

There was no possible excuse for the collision here. Both the tug- and the steamer should have seen each other and regulated their conduct, in view of the situation, when they were half a mile apart. They were in a dangerous channel, with a strong tide, but had abundant room and opportunity to avoid a hazardous conjuncture. They did see each other, at a time when it was sufficiently light to observe each, other’s movements accurately, when they were three-eighths of a mile-apart, if not further. That the tug was in fault, and reprehensively SO, in making for the starboard of the steamer, contrary to the usual custom of navigation of the river, and without waiting for the steamer’s-assenting signal to such a course, cannot be doubted, and is not seriously disputed. But the proofs are cogent that the tug made for the steamer’s starboard and maintained this course from the time-she gave the first two blasts of her whistle, and when the vessels, were at least a quarter of a mile apart. As the steamer then had ample time and room to avoid collision, if she had noticed the tug’s movements, it must follow that she was culpable, unless there was a. later and sudden change on the part of the tug which the steamer had no reason to anticipate, and when it was too late for the steamer to act judiciously. It was peculiarly the duty of the steamer to be vigilant, as she was proceeding against the tide, and her movements could be more readily controlled than could those of the tug. The Galatea, 92 U. S. 439. The proofs do not show such a sudden change of course on the part of the tug. That she put her wheel hard starboard when within 300 feet of the steamer, supposing a collision to be otherwise unavoidable, and thereby threw herself more directly across the steamer’s bow, is true. Possibly, if she had not done this, there would not have been a collision; but the steamer, as well' as the tug, was in fault for permitting a situation to exist which was so hazardous that an error of judgment on the part of either vessel might prove fatal. ——

'The truth, probably,- is that the steamer saw the tug first after the *153latter rounded the point, and before she concluded to go to the steam•er’s starboard; that the steamer relied upon the tug’s observance of the usual custom of keeping to the right when meeting a steamer at that part of the river on the flood-tide, also upon the observance of the rules of the supervising inspectors which enjoined that duty upon her in the absence of signals given and responded to to the contrary; and relying upon this conduct on the part of the tug, a,nd assuming from the tug’s position that she did not require special observation, the steamer’s attention was directed to the schooner Duryea, until, passing that vessel, her attention was again directed to the tug, when it was too late for cool action and careful judgment on the part of either the tug or the steamer. This theory is cogently enforced by the fact that the steamer did not hear the signals of the tug when the latter first concluded to pass on the steamer’s starboard; signals which certainly were given, and which the steamer ought to have heard. If, when she ported while passing the Duryea to regain her former course, the steamer had observed the tug with care and had starboarded, the collision might have been avoided. Not having done this, although the collision might not have taken place without the tug’s further error, the steamer was in fault because she assisted in bringing about a critical situation in which an error of judgment on the part of either vessel might be expected and could not be repaired.

Resting the decision of the case upon this view of the facts, it is unnecessary to inquire whether there was further fault on the part of the steamer which contributed to the collision. As the tug was grossly in fault, if this were a controversy between her and the steamer she would be held rigidly to the rule requiring a vessel guilty of negligence to show affirmatively that the collision was not the consequence of her own negligence. The libelant, however, occupies the position of a stranger to the tug, and it suffices if he shows that the conduct of the steamer contributed to his loss.

There is no merit in the point made by the appellant that it was the duty of the libelant to raise his boat if practicable after she sunk, and, not having done so, cannot recover upon a theory of a total loss of boat and cargo. There is no peculiar state of facts disclosed by the proofs to impose on the libelant the duty of an attempt to raise the boat and cargo. At the place where the boat sunk the water was so deep and the current so swift that it was highly probable that such an attempt would only subject the libelant to an additional loss. It is not generally incumbent upon the owner, when his vessel has been sunk by a collision, to go to any expense whatever for the purpose of *154raising ner, (The Columbus, 8 W. Rob. 158,) and the facts here do not present an exceptional case.

The decree of the district court is affirmed, with interest upon the damages and' costs.