'Xu D. J. FOLEY.
cannot be accepted as evidence except where it has been made such by statute, (Levy v. Burley, 2 Sumn. 855; Ohurch v. Hubbart, 2 Cranch. 187; U. S. v. Mitchell 2 Wash. C. C. 188;) and although the acts of August 18, 1856, and of January 8, 1869, have added some force to consular certificates, and given consuls new powers in taking depositions, the law has not been changed in the points in question. . The application to admit the testimony must be denied, but time will be granted to procure the original of the bill of lading, or make a more satisfactory accounting for ,its absence.
THE D. J.
(District Oourt, E. D. Pennsll!flanla. .Iune 13,1882"
AnHIKALTY-SBRVICE 01' TuGS IN BREAKING
A tender is evidence that something is due, an acknowledgment of the fact; and where the evidence 8S to the service is in irreconcilable conflict the court will exercise its discretion as to its value.
Libel by the owners of the tugs Argonauta and Markee against the steamer D. J. Foley, to recover compensation for services' rendered. It appeared that the steamer, while on a voyage from Philadelphia to Honduras, found, after le,aving the Delaware breakwater, that her stem had been cut by the ice. She put back to the breakwater, and was there frozen in and unable to proceed. Her captfl,in telEigrap):J.ed to the owners that he could reach New York with less difficulty than he could reach Philadelphia, and he was thereupon ordered to New York. Subsequently he telegraphed that he could probably reach Philadelphia, but to this he received no reply. The tugs Argonauta and Markee, which, subsequently to the arrival of the steamer, arrived at the breakwater, broke a channel for the steamer and assisted in turning her, whereupon she proceeded to New York. The testimony as to the circumstances under which the assistance was rendered was conflicting, the libellants asserting that it was rendered u,nder the belief, induced by the captain of the steamer, that their services were required to tow the steamer to Philadelphia, and respondents alleging that they never made any contract for towage, and that the breaking of the ice by the tugs was not done for the benefit of the steamer, but was the necessaryconse·
.Reported by Frank P. Prichard, Esq" of the Philadelphia bar.
quence of the tugs working their way inlotherbreakwat.er,!whither they were bound for libellants had made demand for compensation, respondents offered them. $100 ll.s:a for the services, which offer was ,declined. Theodore M. Etting ana Henry R. Edmunds,- for libellants. , Henry G.Ward and Alfred Moore, for respondents. BUTLER, D. J. It is-difficult to reachasatisfactoty conclusion in this case. 'The testimony is in direct, irrecoD'Oilable conflict. -All that can be determined with certainty is that; the libell8iD.t did render valuable services to the respondent. The precise situation of reo spondent, the extent of danger and necessity for aid, and the circumstances under which the libellant afforded assistance, cannot be ascertained. For the a bill of $250 was presented, and the respondent tendered $100. It is not very important that this tender was called a "gratuity. " It is evidence that somethi;ug was due-an acknowledgment of this fact. Considering all the circumstances involved, I think it is safe to say the libellant should receive $180';' and the evidence does not seem to warrant more. A decree will be eutered for this Bum.
THE J. T.
(Di8tric' Court, E.
Ne'UJ York. June 26,188.3.)
Vessel in fault for allowing herself to be placed at a pier, lapping the &tarboard quarter of another vessel, so as to prevent her from changing her direction as she moved towards the pier, as vessels were being towed out from the pier, and a collision ensued. -
Hill, Wing Shoudy, for libellant. Owen Gray, for the James T. Easton. J. J. Allen, for the Northern Liberty. BENEDICT, D. J. It was no fault of the libellant's boat to be at the end of pier 7, North river, because she was called there for the purpose of towing a canal-boat, to which she was already made fast when the collision occurred. Neither was it a fault in the libellant's boat that she did not move away from ,the pier when notified of the approach of the Northern Liberty. Being lawfully where she was, sbe was not bound to make a place for the Northern Liberty. Besides, upon the evidence, there was not time for her to get away, so as to avoid collision, after danger of. collision was apparent.