The Katie M. Hagan , 98 F. 995 ( 1899 )

McPHERSOA, District Judge.

The libelant is managing owner of the barge Katie M. Hagan, which ran aground and sank on December 28, 189(5, owing to the alleged negligence of the tug Lizzie (-rawford. The barge was afterwards raised by a wrecking company at the cost of $1,200, and, this sum having been paid by the libelant under threat of a proceeding in rem, the present action is brought to compel rej)aymcnt.

Whether the tug -was or was not negligent is not a matter of importance now, for the reason that the libelant settled Ms whole claim, including the item in controversy, several months after the accident, and was paid the amount that had been agreed upon in order to compromise the dispute. The settlement is in writing, and was made between the libelant and the agents of the Home Insurance Company, which had insured the tug against tower’s liability. The paper reads as follows:

‘Tavonia, N. J., Aug. 4, 1897.

“It is hereby agreed, by and between Peter Hagan, owner of barge Katie Hagan, and Louis If. Burke, representing the underwriters on tug Lizzie Crawford, to settle any and all claims of Hie barge Katie Hagan aiid her owners against the said tug Lizzie Crawford, arising from the disaster of December 28, 1S90, for the sum of eighteen hundred dollars. Peter Hagan.

“Louis E. Burke.”

This is a settlement of the claim in suit, and it was followed by payment and acceptance of the sum of money therein named.' It is true the libelant attempted to qualify his acceptance by stating in the receipt that the money did not cover “bill of raising”; but this was a week' after the agreement was made, and his mere statement could not change the terms of that contract. The libelant now attacks the settlement on the ground of fraud and misrepresentation, but these charges have not been proved. At the best, the testimony may be said to raise some doubt about the scope of the compromise, but a doubt is not enough. The libelant is bound to prove the allegations upon which he relies to relieve him from the agreement, and this he has failed to do. The, evidence is insufficient to justify a court in setting aside a written instrument.

This libel must be dismissed, with costs.