H'CANN V. CONERY.
does not'sustain the position. Its weight, I think, is clearly the other way. A number of witnesses, of very large experience, testify that they never heard of such danger, and that docks are never inspected after dredging, except to ascertain the depth of channel. It is probably true, as stated by one of the libellant's witnesses, (Patrick Powderly,) that bargemen entering such docks use their poles to feel for obstructions. This is the kind of precaution, says this witness, that is taken, and that it is the only precaution he has known. It was resorted to by the barge in this instance; but unfortunately the disarranged pile was not discovered. Under the cIrcumstances shown, and in view of common usage and experience respecting the cleansing of docks, it would be unreasonable to hold the respondents guilty of negligence. They had no reason to apprehend the displace. ment of the pile; it was a very extraordinary circumstanM,-not to be anticipated,-and the injury resulting from it was; therefore, one To hold the respondagainst which pl'oper care ',,,"ould e"!lts liable under such circumstances would be to make them in· surers. This view of the' case renders an examination of other questions discussed unimp0rtant·. The libel must be dismissed.
Assignee, etc., v.
lIMtrict Oourt, E. D. Louisiana. March, 1882.)
CHARTER-PARTy-OBLIGATIONS OF PAnTIES TO.
The law places upon owner of a vessel theobliga:tion of a warrantor that the vessel is seaworthy. The charter-party declaring that the was in good order and condition, the presumption is in favor of seaworthiness. The. charterer, therefore, assumes the obligation that the vesSel will continue to bl; capable proceed on.her voyage, so f&r as relates to all defects which could be ascertained by inspection, and the owner assume4. th\!o obligation that the vessel would continue to be able to proceed, so far as to latent defects; that if the jury found that the accident which interrupted the boat, namely, the breaking of the Ahaft, was the result of a defect which W&s ascertainable by inspection, then the owner could recover; but if of a defect which was latent, then the verdict must be for the defendants.
J08eph P. Hornor,dor plaintiff.
Okarks B. Rickard H. Browne, Jtjh"" H. Kennard, W. W.· Howe, S. K Prentiss, and H. H. Walsh, foridefendants.
-Reported by JOBeph P. Hornor, Esq., 'of the New Orleans bar.
-BILLINGS, D. J. This case is before me on a motion for a new trial. The contention is as to the correctness of the instructions given to the jury. The court instructed the jury:
(1) That the law placed upon the owner of a vessel the obligation of a warmntel' that the vessel was seaworthy. (2) That in this case, since the'charterparty declared that the" vessel was in good order," the presumption was in favor of seaworthiness, and the burden of showing unseaworthiness was upon tlw charterer. (3) That the charterer under this agreement assumed the obl,igation that the vessel would continue to be capable to proceed on her voyage, so far as relates to all defects which could be ascertained by inspection, and the owner assumed the obligation that the vessel would continue to be able to procelld,so far as related to all latent defects. (4) As a consequence of these principles of law and rules of construction, that if the jury found that the accident which interrupted the boat, namely, the breaking of the shaft, was the result of a defect which was ascertainable by inspection, then the plaintiff could recover; . but if of a defect which was latent, then the verdict must be for the defe1l9ant; and it left the entire question to the jury,and'refnsed all instructions which asserted any legal presumptions as to whether the accident was the result of patent or latent defects.
It appeared from the evidence tha.t the-boat became disabled by the fracture of her shaft. The evidence as to whether that fracture happened from weakness in structure of the shaft, i. e., from want of cohesive power, or from stress brought to bear upon it in the course of navigation, was very full, and, in the opinion of the court, took the case entirely out of the region of presumption arising from the absence of thi!! or that circumstance into the region of positive testimony as to the strength or weakness of a shaft, and the jury were properly told that, in deciding as to the strength or weakness of the shaft, they must consider all the testimony. There is no doubt bn:t, that in oases where. the facts show simply a disability, without precise evidence as to what part became disabled, or as to the situation of that part of the vessel which became disabled, the court ought Wdirectth jury to the inquiry. whether there 'was any: apparent or adequatectt'use sri.owh for the coming on of the disability; but where the evide4ce shows"that came from. and consisted of a breaking, of machinery, and numerous witnesses have testified as to partiCUlar part which broke, t1:ieinquiry is not to be determined by an inference as to the presence of external causes as an exclusive test, but the presence or absence of apparent Cltttse Ill"stoonsidered, oIily- in ,connection with 'the direct Rind positive evidence. EapecialllY is this true where, alslin,this case, the charter. party declares that the vessel is in good order" and the burden is thus
749 placed upon the charterer, and he is concluded as to all want of strength which could have been discovered by reasonable inspection. The issue, so far as relates to the charterer, was twofold. If the jury found either that the accident was caused by a peril of navigation or . I by some unseaworthiness which was patent, the verdict must have been against him. My conclusion is that there was no error in the instructions. It a case where the court would have erred had it directed the at· tention away from the direct evidence, exelusive to that which \Vas inferential. The inferential should have been considered, but only along with the direct; and this is precisely what the jury were in· structed to do. As to whether the verdict was against the evidence, the chief ques. tipn was whether the shaft broke from a latent or patent defect. The same issue,.upon similar, and, to a large extent, identical evidence, had been tried before the court in an equity cause, and the conclusion tlwn reached was the same as that to which the jury in this case arrived. . , The rule for a new trial is therAfora refused. ; In addition to the cases cited I have consulted Kimball v. Tucker, 10 Mass. 195; ,Airey v. Merrill, 2 Cap,en,.1 GJ;ay, 525; qo.ok v. J5Gray, 238. . .
(DiBtrld Oourt, E. D.
Where a vessel was by: a collision, ahd was thereby rendered' so that the master, mate, and '6rew safety on the 'colliding'\'essel, leavin'g' . the injured 'vessel to drift helplessly on the sea, bUt intei1dingtb proceed to a port for the purpose of procuring a tug to rescue the wrecked vessel; and did actuallyprocureli. tug and returned 'to the-wrecked veSsel, it is not a:eBse technically of legal derelict. Where a steam-barge sights $,vesse} at sea-drifting hllJp!esslY,JUld in great peril,with a hole in her, port quarter, her her head gear tom,-her bQom pver bo:w, and carried away,her ber, have the as salvors to 'tl1eit just demands shall be paid,or UntJ1 the vessel sluil be taken mtO' the custody of the Jaw prepar'atory to the amount of salvage being legally a'sCertained... J
2. TOWAGESERVICEB.....Ag SALVAGE-RIGHT OJ' POSSESSION.-