that the case of the Samson, in 2 Wallace, jr., (p. 485,) is a case where a libel has been filed against two vessels in rem, without any such exception having been taken either by the counsel or by the court, which could hardly be, if there were any validity in the exception; and that in the case of the Moxey, decided by Judge Betts, in 1841, was different from this, in that the libel that did not allege a joint negligence; that it must therefore be held that a libel against two vessels for joint negligence can be sustained.
That where the collision is occasioned by the joint negligence of those who have charge of the vessels as the servants of the owners, then a libel may be sustained, against the owners jointly, as well as against the vessels.
That, as in the case of the Samson, a charge of joint negligence may be made against two vessels, and the proof show negligence against only one ; and in such a case the decree must be against that one, and in favor of the others.
That on the evidence in this case, there was negligence on the part of the Birkbeck, in not changing her course; and if, as her pilot says, her engine was not strong enough to back against the wind, which was blowing, he was negligently exposing other vessels to be run down by having so weak an engine.
That there is no evidence of fault on the part of the Catharine. She slowed and stopped in time to enable the Birkbeck to avoid the collision, and had good reason to believe that the engine of the Birkbeck was strong enough to give her stern way against the wind, and that she would change her course, if necessary ; that her going ahead was not the cause of the collision, which would have equally happened if she had not done so.
That there was no fault on the part of the Carver, either in not having a man at her helm, or in not properly using fenders. The pilot of the Catharine told the man at the helm that he was not wanted there, and the best was *162done with the fenders that could be done under the circumstances.
Mr. Van Santvoord, for libellants. Mr. McMahon, for respondents.Libel dismissed as against Crary, the owner of the Catharine ; and as against the owners of the. Birkbeck, decree for libellants, with a reference.
On the reference as to the damages, the libellants proved that they had never fully repaired the vessel. Their witnesses proved the amount of repairs actually put on, and also testified that to make the vessel as good as she was before, she would need some brace clamps on the opposite side from the injury, which would cost $67.40; while witnesses for the respondents testified that she would not need such clamps.
The commissioner reported that the libellants should recover the amount of the repairs actually put on, and the cost of the brace clamps, and $100 for depreciation in the market value of the vessel, and $25 for her detention.
To this report the respondents excepted. The matter, on exceptions, was argued by
Held by the court, Ingebsoll, D. J.,that to enable the libellants to enforce their right to be made good, they must submit such evidence as will enable the court to say what sum will make them good.
That the most satisfactory way of determining whether the brace clamps would be required, would have been to repair the boat fully. This, however, was not done, and the evidence is not sufficient to satisfy the court that they are required.
That the evidence of depreciation given, is not sufficient to support that item. It is too speculative and uncertain.
That the report must, therefore, be so modified as to strike out those two items.