away,-that it could not be saved, etc., amounts to nothing. It means simply that, under existing circumstances, (the continuance of the storm, and the danger to ship and cargo,) it could not be saved;· in other words, that the emergency demanded its sacrifice, that in this sense 'it was doomed to destruction, and therefore lost. All ttdmit that with an abatement of the storm, (in its situation when cast off,) it could have been saved. That it would have been valua. ble if saved is not questioned. The witnesses call it "wreck,"but this is of no importance. In the loose, general sense of the term it was "wreck." No more so, however, than a confused and broken mass of displaced spars and sails on deck, would have been. In Johnson v. Ohapman, supra, it is said that this term properly means, "that which has been rendered useless or irrecoverable by peril of the sea... This property was not rendered either useless or irrecoverable, except by continuance of the storm. That adjusters have denomi· nated all such property "wreck," and consequently excluded it from their estimate of loss, regardless of distinguishing circumstances, is 'also unimportant. Such a practice may be convenient and avoid controversy, and these considerations doubtless have led to its adop. tion, where pursued. If the practice of adjusters, however, was less variable and inconsistent than it is, the result would be the same. The question is alone for the courts. There is no recognized general custom governing the subject. . The libel must, therefore, be allowed.
Di«trid 17ourt,8. D. New York.
June 3, 1882.)
In an action for damages for personal mjuries 8Ustllfned by an employe, engaged in storing cargo, falling through a hatch in the between-decks of · vessel, hdd, that it was negligence in those having charge of the vessel in leaving the chain-locker hatch open and unprotected, and in a dark place, after the first officer had notified the stevedore that the vessel was ready for stowing &he cargo.
On the eleventh of September, 1879, the libellant waB employed
m loading the steam-ship Helios. He was working under a foreman who in turn was under the head steVlidore. The load.ing of the lower
hold being completed, the foreman asked the first officer of the steam. ship if they could proceed to stow the between.decks. He replied that everything was ready. The foreman then instructed a gaug of men, among whom was the libellant, to go below and close the hatches in the between-decks, and then stow the "oil-cake" in the between-decks. The Helios was a steamer fitted for carrying grain, and had a number of small hatches in her between-decks, in addition to the four main hatches. It was about 10 o'clock A. M., and a bright, clear day. The first whipful of cargo for the between-decks was hoisted over the side and lowered into the between-decks through the forward hatch. It consisted of several bags of oil-cake, large and heavy. The first bag was seized by two men, one the libellant, as it was lowered, and dragged forward to be stowed against the forward bulk·head. . There was no light forward except what came down the fore.hatch, which was about five by seven feet. About 16 feet from the forward hatch was a small hatch without combings, leading to the chain lockers. This hatch was not used for cargo and was open. The oil-cake was to be stowed some five or six feet beyond this small hatch. The libellant did not know of it, and as he went forward with the first bag of oil-cake he fell down it, receiving the injuries to recover for which this libel was filed. The libellant asked for no artificial light to work by, nor was any furnished, and after the accident the stowing went on without any. There was evidence that lights were supplied to stow cargo by, in the port of New York, only if demanded by the workmen. Beebe, Wilcox Hobbs, for libellant. [JUo Davison, for claimant. BROWN, D. J. I cannot entertain any doubt that it was negligence in those having charge of the Helios to leave the chain-locker hatch . open and unprotected, as the evidence shows in this case. It was not a hatch for the usual stowage of cargo, such as stevedores must at their peril look out for and are presumed to know about. It had no reference to the cargo, and the stevedores had no business with it, as the evidence shows. When the first mate told the stevedore the vessel was ready for him to proceed to stow the cargo, that was a virtual warranty against all such traps in the darker parts of the vessel, which could not be or would not be perceived in the ordinary course of stowage. The evidence doubtless shows some exaggera· tions, but nothing which tends to create any doubt as to the evideni fact that this hole was left open and unguarded, in a dark place,
after the first officer had said the vessel was ready for stowing th'e cargo. Decree for liBellant, with costs, and reference to compute the dam ages.
See 2 FED. REP. 240.
THE ATLEE.(JJisfnct (Jourt, E. D. PennsyltJania.
April 3, 1882.)
ADMIRALTY-NEGLIGENCE-USING DOCK IN WIIICH ANOTHER VESSEL IS SUNKDELAY IN REMOVING SUNKEN VESSEL.
A loaded lighter was sunk in a dock. Although 48 hours would have sufficed to remove her, she was allowed to remain for six days, during which two vessels successively entered and used the dock. Upon the lighter being raised it was found that she had been injured by one of the vessels, and a libel was thereupon filed against the second vessel. 1leld, that the libellant's delay, coupled with the fact that another vessel had previously occupied the dock, rendered ascertainment of the injury infiicted by the second vessel impracticable, and the libel should therefore be dismissed. 8etmble, that, after a reasonable time for the ,removal of the lighter had elapsed, she might have been treated as a nuisance.
Libel by the owner of a lighter against the bark Atlee for damages on account of injuries alleged to have been inflicted on the lighter by the bark. It appeared that on February 18,1881, the lighter, loaded with coal, sunk in a dock at Philadelphia. On February 24, 1881, the Atlee entered the dock. After she had entered, her captain was told by libellant that there was a lighter sunk in the dock; but on applying to the superintendent of the dock he was told that he would not injure the lighter, and that libellant had failed to remove the lighter, although ample time had been given him. When the lighter was raised she was found to be injured, but the extent of these injuries was in dispute. It appeared that she could have been raised in 48 hours and that another vessel of deeper draught than the Atlee had, subsequent to the sinking and prior to the arrival of the Atlee, occupied the dock during two tides. The libellant testified that immediately after the sinking he gave an order to parties to raise the Lighter, but that they had neglected to do it. George P. Rich, for libellant. Curtis Tilton and Henry Flanders, for respondents.
-Reported by Frank P. Prichard, Esq., of the Philadelphia bar.