I4EMPHIS & ST. LOUIa PACKET CO.
H. O. YAEGER TRANSP. 00.
all, the steamer should hn,ye the collision if her pilots saw the sloop. The collision was the result of negligence on both crafts; the damages must be divided. The claimant's proctor pretends that the commissioner's report is all wrong, and that he did not have an opportunity to produce witnesses as to damages. It would seem that $150 a. month for nonuse of a smack not worth over $1,000, is pretty high; such Dr smack would soon pay for itself, laying up. Whereupon the court entered a decree reversing the decrees and orders in the district court, holding that the collision was the fault of both vessels; that the damages be divided; and made a reference to Dr COmIlllt;S10neI to ex.amine and report actual damage Buffered.
ST. LOUIS PACKET
Co. v. THE H. C. Co.-
Court, E. D. Missouri. February 10, 1882.)
COLLIsrON-Drv'ISION OF DAUAGES.
Where, in case of a collision between two vessels, there is mutual fa\llt, the between the owners. . damages should be flqunlly
Sum-MEAsuRE OF DAMAGE8-REPAIR8-DETENTION.
The damages to be dividt\d in such cases are those necessarily resulting from the collision. If repairs are necessitated their actual cost should be taken into account. If the injured vessel is bound on a voyage and is detained by reason of the collision, the loss from detention also constitutes part of the damages.
Noble Orrick, for libellants. Henderson 0: Shields, for respondent.
MCCRARY, C. J. This is a case of collision. The court has heretofore affirmed the finding below that there was mutual fault, and that the damages should, therefore, be equally divided between the owners of the two colliding vessels. At the request of counsel a reargument has been had upon the question, whether in such a case demurrage, or charges for loss of the use of the injured vessel while undergoing repairs, should be allowed as part of the damages to be divided.
4Reported by B. F. Rex, Esq., of the St. Louis !Jar.
Appellant's counsel insists that, both parties being in fault, the only damages to be apportioned are the actual injury to the vessels; or, in other words, the actual cost of repairs. But no case is cited in which it has been so decided, and I think a fair construction of the rule as laid down by the supreme court requires that we give to the word "damages" its ordinary meaning. The leading case in this country upon the subject is that of the Schooner Catharine v. Dickinson, 17 How. 170, in which the rule is thus stated: "We think the rule dividing the loss the most just and equitable, and as best tending to induce care and vigilance on both sides in navigation." In subsequent cases arising in that court this rule is followed, and subse· quently the same language used to express it. It is sometimes said that the. damage done to both ships is to be added together and the Bum thereof equally divided. But this language is never used in such connection as to lead to the inference that nothing but the actual cost of repairs is to be taken into account. By the word "loss" or "damages" I understand the supreme court to mean the injury di· rectly and necessarily resulting from the collision. If a vessel he bound upon a voyage, and is, by reason of a collision, detained, the loss from detention is a part of the damages resulting from the col· lision; and if she is disabled by such collision, so that repairs are necessary, the actual cost of such repairs is likewise part of the damages. And in either case such loss or damage is to be paid by the party solely in fault, if the fault be all on one side, or to be divided if the. fault be mutual. In both cases the rule as to what is "loss" or "damages" is the same. It is the injury necessarily resulting from the collision. This is the view taken of the rule by Lowell, J., in the case of The llfary Patten, 2 Low. 196. The motion for rehearing is overruled, and the Ol'der affirming the decree of the district court is adhered to.
(Oircuit Oourt, E. D. Lo'l!'isiana. L
INJURED WAGES OF, ETC.
In case of injury by fault or neglect of officers, the seaman is entitled to full wages until restored, and reimbursement for keep and medical attendance. But when he is sent to hospital, without expense to himself, no allowance can be made for keep and medical attendance.
In such a case, where the seaman is sent to a hospital in a portotber thah that at which he was shipped, he is entitled to his passage home, or the cost
In Admiralty. R. King Cutler, for B. Egan, for claimants. PARDEE, C. J. "In case of injury by fault or neglect of officers, the seaman is entitled to full wages until restored, and for keep and medical attendance." Desty, Shipp. & Adm. and cases there cited, § 155. A careful exa.mination of the evidence filed in the record satisfies me that the libellant came to his injury-a broken leg-while in the performance of his duty, through no fault of his own, but solely from a faulty and dangerous gangway over which libellant and his comrades were ordered to carry coal. The inj ury was received in the night, at a coaling place, and the evidence is doubtful as to whether proper lights were furnished. It was the duty of the officers of the boat to have provided a safe and proper gangway and suitable lights. Short planks,. so placed as to tip ana slip, do not make a safe gangway for men to pass over carrying heavy articles of freight or fuel. Libellant's wages were $25 per month. The district court allowed six months for restoration, which is short enough for full recovery .of a broken leg. As libellant was sent to hospital without expense to himself, no allowance can be made for keep and medical attendance. As libellant shipped at St. Louis and was left here disabled, he is entitled to passage home, amounting to $12.50, as fixed by the district court. Libellant now asks for an increase of wages on the ground that the recovery has not taken place in the six months allowed, but
"Reported by Joseph P. Hornor, Esq., of the New Orleans bar.