delivered the opinion of the court, January 5th 1880.
These two cases were argued together. The damages claimed, resulted from a collision on the Ohio river. The boat “ Phillips,” with nine barges in tow, some loaded with coke and others with coal, had become disabled in descending the river, and landed and moored over night at Phillips landing. While lying there, she had proper signal lights burning; but did not have steam up. While in that position she was struck by the “Bigley,” a boat also descending the river, owned by the plaintiffs in- error, and having a. tow in charge. The officers of the Bigley had previous notice of *46the disabled condition of the Phillips. The latter boat and her barges were torn from the shore, by the striking of the Bigley and her tow, and forced into the stream. The barges in the Phillips tow were scattered and thrown on a bar below. The barges were the property of Gilmore, the defendant in error. Three of them were entirely lost and others injured. The coke therein, lost and damaged, was the property of Henderson & Co., the other defendants in error. Each suit was to recover damages sustained by the respective party therein.
The first assignment of error denies that the court below had jurisdiction in the case.
The suits were not proceedings in rem against the boat of the plaintiffs in error, in which the District Court of the United States has exclusive jurisdiction; but they were actions in personam, against the owners of the boat. Sect. 563 of the Revised Statutes of the United States, prescribes in what cases the District Court shall have jurisdiction, and pi. 8 thereof declares, “ of all civil causes of admiralty and maritime jurisdiction; saving to suitors in all cases, the right of a common-law remedy, where the common law is competent to give it.” In Hines v. Trevor, 4 Wall. 570, and in The Belfast, 7 Id. 644, brought in state courts, the proceedings were in rem, and as there was no proceeding in rem at common law, the cases were held not to come within the saving clause of the Act of Congress. But in Leon v. Galceran, 11 Wall. 188, it was held that the state courts have jurisdiction in an action in personam. It is true that case was on a contract; but the Act of Congress makes no distinction between a tort and a contract. The test is whether the common law gives to a suitor the right of a common-law remedy, to redress the wrong which he has suffered. Whenever it does, the party injured may maintain such action in a state court. It therefore follows, the court had jurisdiction in the present case.
2. This assignment claims the court erred in refusing to charge the jury, that the defendants in error “must satisfy the jury, that casting off the lines did not contribute to the loss.” Under all the evidence furnished us, it would be manifest error if the court had so charged. We cannot find any evidence indicating that casting off the lines contributed to the loss. The defendant in error gave evidence tending to prove negligence on the part of the plaintiffs in error, in colliding with the boat of the former, and that one line was thereby pulled out of the post to which it was tied, and that the other line was cut when it was about to pull the end out of the barge. It certainly cannot be that an act done for the purpose of preventing injury, and which is not shown to have cau ed any damage, imposed on the defendants in error a necessity to prove that it did not contribute to the loss. If the plaintiffs in error claim this act was intended to cause loss or damage, or had that *47effect, or contributed thereto, there should be evidence to sustain the claim. As a general rule, the burden of proof of want of ordinary care, rests on the party alleging it; and under the circumstances attending the commission of this act, it rested on the plaintiffs in error. The court very clearly said to the jury, if they found there was any contributory negligence on the part of the “Phillips,” or if the defendants in error neglected to take care of their property after the accident occurred, they could not recover.
3. The answers covered by this assignment are as favorable, as the plaintiffs in error were entitled to receive. The court was not required to separate their negligent act from the reasonable effect resulting therefrom. If the defendants in error used due and proper diligence, in the mean time, to secure and protect the property, the resulting loss was not too remote to prevent a recovery therefor. In view of the injury first committed, and the exposed position in which they forced the barges and cargo, they cannot be exempted from the damages naturally resulting from their act, without any fault of the defendants in error.
4. The measure of damages as to the coke lost and injured, was correctly stated. Considering the character of the property, and the fact that it was on the way with other coke and coal, to market, its value at the nearest market, deducting therefrom the time and expense required to reach that market, was a correct measure of damages.
5. The first part of the charge covered by this assignment, was evidently intended to apply to the barges wholly lost, and the latter part to those which were injured only, and- saved by labor and expense. So understanding it, there is no error in this assignment.
6. This assignment seeks to make a distinction between the allegata andy>robata. It may be, that if objection had been made to the admission of some of the evidence, that it should have been rejected. None appears to have been made. It was all received, and was clearly relevant to the general complaint of the loss. No request was made to withdraw it from the jury. An amendment of the declaration, making the evidence clearly admissible, could have been made. The learned judge was right in refusing to charge as requested in the point covered by this assignment.
Judgment affirmed in each case.