THE GEORGE H. DEN,TZ,
(DiBtrict Oourt, E. D. N6tD York. June 26,1882.)
INEVITABLE ACCIDENT-ADOPTING DANGEROUS COURSE.
Where the pilot of a vessel, without necessity, adopts a dangerous course. and fails in his purpose, he must bear the responsibility.
W. W. Goodrich, for libellant. , I Oarpenter et Mosher, for the insurance company, co-libellant. E. G. Davis, for claimant o,f the tug. , BENEDICT, D. J. I am of the opinion that upon the evidence it cannot be held that the tug proceeded against has excused herself for lllovingso'near the South Brother island,'in Long Island sound, with her tow, that the libellant's boat brought up on the rocks. The only excuse attempted to be proved is the breaking of the propeller's rudder chain. ,The positive evidence in regard to the breaking of the chain seems sufficient to prove that the chain did break; but whim it broke is not so clear. The failure, at the time of the accident, to mention the breaking of the chain, the circumstances under which the pilot in charge of the propeller left· her, and the omission to mention the .breaking of the chain in the answer as originally filed, nor until a sec,. ond answer was compelled by exceptions, have ledme to the conclusion that the breaking of the chain was not the cause of the accident., I have not overlooked the testimony of the pilot as to his mention of the chain at the time of the accident, but plainly he did not state what he says he did; or if he did, then the statement was not true, for at that time the chain was not broken. The real cause of the tow's hitting the rocks, no doubt, was a misconception on the part of the pilot of the propeller in respect to his location. But the result follows from the testimony of the pilot of the tug; for, according to the pilot, he met a sailing vessel which crowded him into a tight place, and compelled him toport his wheel, and brought him south-west of the passage between the Brothers, so that a sharp sheer was necessary in order to regain his proper position. In making this sheer his rudder chain broke, and before he could repair his chain he was too near the rocks to clear them. This statement shows that the pilot held on his course, porting his helm for the sailing-vessel, in force of the passage between the Brothers, when he should have stopped. By holding on and porting, he placed himself in a position, according to his own statement, where, if his rudder chain happened to break, he must go ashore; and such an accident
is not infrequent, as the testimony shows. There was no necessity for him to take this risk. The maneuver was dangerous, as the result proved. Having without necessity adopted a dangerous course, and having failed, he must bear the responsibility.
(Circuit Court, S. D. Net/) YtYf'k.
1.8mPPma-OBTAINING EMPLOYMENT FOR SEAMEN.
A person who is not a shipping commissioner is not authorized to charge any fee for shipping seamen.
In an action for the penalty for shipping seamen without authority, and demanding a remuneration therefor, Jt is for the, defendant to show himself within the exception stated in the act of congress.
The U. S. Dist. Atty., for plaintiff. Goodrich, Deady Platt, for defendant. WALLAOE, C. J. It was error to require the plaintiff to show any· thing further than that the remuneration demanded by defendant for obtaining employment for the seamen was of a prohibited character. This was shown when it appeared that the defendant was not a shipping commissioner, and therefore was not authorized to charge any fee for shipping seamen. Conceding, for the purpose of this case, that the penalty is not recoverable when the seamen are shipped in vessels of the class mentioned in the act of June 9, 1874, it was for the defendant to show himself within the exemption, and it was not incumbent on the plaintiff to negative the existence of the exculpating facts. Spieres v. Parker, 1 Term, 141; Sheldon v. Clark, 1 Johns. 518; Bennet v. Hurd, 8 Johns. 488; Hart v. Cleis, 8 Johns. 83. Motion for new trial granted.