vailed; that this rule had become the law of this circuit; and that the doctrine of stare decisis must be followed. The case must go against these appellants on this ground.
See S. C. 9 FED. REP. 773.
(Circuit Court, 8. D. Ne'IJJ York. January 31, 1882.)
BALVAGE SERVICE-ABSENCE OF NECESSITY-LIABILITY OF OARGO.
The absence of any immediate necessity for the service rendered, even of a salvage character, qualifies the power of the carrier; and where, in addition, the owner of the cargo, though accessible, was not communicated with, and there was an evident attempt, by concert between libellant and the master, to throw the whole expense on the cargo, the right to enforce the demand is forfeited as respects the cargo.
In Admiralty. E. D. McOarthy, for libellant. J. A. Bush, for claimant. C. J. Assuming that the service in this case was a salvage service as respects the cargo, but not deciding that it was, there necessity for the service without communicating with was no the owner ofthe cargo, who was immediately accessible. The absence of such necessity must qualify the power of the carrier, as the power is founded solely on the necessity. The views stated by the district judge, in his opinion on this subject, are those sanctioned by principle and precedent. In view of the absence of immediate necessity, of the exaggeration of the claim by unduly increasing the time charged for, of the antedating of the written agreement, and of the evident attempt, by consent between the libellant and the to throw the whole expense on the cargo, the demand, even though of a salvage character, must be held to be one the right to enforce which has been forfeited, as respects the cargo. The libel is dismissed, with costs to the claimant in the district court, taxed at $37.50, and his cosis in this court, to be taxed·
· Reported by S. Nelson White, Esq., of the New York bar.
(District Oourt, E. D. NeuJ York. 1882.)
CoLLISION IN EAST RIVER-FERRY-BOATS-APPORTIONMENT AND DAMAGES.
A boat, tbe 0., on ber regular trip up the East river from Fulton street to Hunter's Point, and a ferry-boat, the W., plying between Grand street, Brooklyn, and Grand street, New York, came in collision a short distance above the ferry-slip, near the New York shore, and the O. was sunk. The O. had come up along the New York piers, to be in the eddy of the tide, which was running down, had gone out in the river a little to avoid a steam-boat then making a landing at Grand-street pier, straightened up, and exchanging signals with the out into the river. The W. had stopped when half way W. sheered across, and, heading nearly down the river to allow the steam-boat above mentioned to go inside and land, then signaled the O. to go to port, and started ahead at the same time to reach her slip. Held, that both were in fault, and the damages should be apportioned. The case of The Cayuga (1 Ben. 173; 7 BIatchf. 385) distinguished.!
In Admiralty. H. T. Wing and R. D. Benedict, for libellants. Beebe, Wilcox et Hobbs, for claimant. BENEDICT, D. J. In this case my conclusion is that the collision in question was caused by fault on both sides. The fault on the part -of the Olyphant consisted in keeping near to the New York side of the river as she turned the Hook. The fault on the part of the Warren consisted in starting up for her slip when she did, after 'seeing the position of the Olyphant. The case differs from that of The Cayuga, relied on by the libellants, in that here the ferry-boat did not hold her course, but stopped under circumstances calculated to induce the Olyphant to adopt a course to pass ahead of her, and then started up again, and blew for the Olyphant to port, when, as the result proved, it was not possible for the Olyphant, with helm hard a-port, to get outside of the ferry-boat before the boats came in contact. Fault on both sides being found, the damages must, of course, be apportioned between the two colliding vessels. An interlocutory decree to that effect will be entered, with an order of reference to ascertain the amount of the damages.