The Ross Coddington

HOUGH, Circuit Judge

(after stating the facts as above). The defenses urged here and below are: (1) That the action is barred by the release of Cunningham to Great Lakes Company; (2) that the injury occurred without any negligence on the part of the tug, but solely by libelant’s own act.

The theory of first defense is that, assuming a tort to have been committed, Great Lakes Company and the tug were joint tortfeasors, and therefore the discharge of one discharged both. The evidence clearly shows that what was paid Cunningham and what he gave a release for was thought to be due under the Workmen’s Compensation Law of the state of New York. It being elementary that an award under that statute does not rest up on negligence, we agree with the reasoning of Jacowicz v. Delaware, etc., Co., 87 N. J. Law, 273, 92 A. 946 , Ann. Cas. 1916B, 1222, holding that the mere fact of a workman receiving compensation under the statute does not prevent the person injured from suing one whose tort directly produced injury.

We think this doctrine here applicable, because the evidence shows no negligence upon whieh action might have been predicated against the Great Lakes Company. Therefore there was no reason why that concern should pay Cunningham anything, except the Workmen’s Compensation Law of the state, which was thought to be applicable. Whether that opinion was correct is no concern of ours.

But the defense is unavailable on a broader ground, viz. the Great Lakes Company and the tug were not joint tort-feasors. That phrase always implies some sort of community in wrongdoing, and such community is wholly absent here, first, because Great Lakes Company did no wrong at all; and, secondly, because the sole reason alleged in the libel for this suit, or discoverable therefor in the evidence, is the failure of the tug to make fast to the lighter before Cunningham was permitted to try to leave the tug. There was ho community of action about this. The lighter was not moving, had nothing to do, and did it. We overrule the first defense.

The libel alleges negligence on the part of the tug in inviting Cunningham to leave the same without having proper fast-' enings to keep “the two boats in question moored together.” As to this we note that there is no evidence whatever that any one invited Cunningham to leave the tug when he did, or as he did, except his fellow employee on hoard the lighter, who jocularly offered to assist him.

It is true that, when Cunningham endeavored to step up from the tug’s rail about a foot, so as to get on the lighter, the two vessels were not fastened together; but the fastening was in process of being made, according to uneontradieted evidence, and Cunningham chose to do what he did without waiting for a mooring. The weather was perfectly calm. Cunningham, though old, had spent all his life on shipping,; he asked no aid; he waited for no fastening; he did what he had undoubtedly been accustomed to do for years, and “missed his step.”

In all this we are wholly unable to perceive any negligence on the part of the tug. No action in rem of this nature will lie .against a vessel unless and until some fault in the construction, management, or operation of the craft is shown by a reasonable preponderance of evidence. The construction of the tug was entirely familiar; the weather offered no difficulties; stepping from the broad rail of a tug to the flat deck of a lighter, a foot higher up, is about as simple a thing as any waterman can do.

We perceive no negligence on the part of the vessel, and are therefore compelled to reverse the decree and remand the case, with directions to dismiss the libel.