and expense and a saving to the steam-ship. Salvage services reo quire the best of f/:!lith in every relation to the saved property, from its commencement to, a final parting with it, or, sundering of all connection, and it is just as much the duty of the salvor to assist in saving wrecked property from unnecessary expense after its saving, as long as in his custody or control, as it is to rescue it from loss. The entire relation is as a whole, and all his doings in connection will be considered, and compensated·. It is not to be understood that one part of the services is to be compensated for and another rendered gratuitously, but 'for everything that is done for the property in good faith the salv()r is entitled to equitable compensation. But the service, or the care bestowed after the property has been rescued and brought into port, is not to be separated from the former services and p/:!lid for byitself, ,but it may be considered in ' any decree. In any case where a vessel is so uninjured as to require no repairs, and is ready to receive any cargo which has been taken out, and the master desires it replaced directly on board his vessel to save his owners expellse, there is no reason why the salvors should not so replace it, and be entitled to have such service, if of any additional t,rouble or detention, considered in an award. This matter'has be,en fUlly considered in this case, and such extra compensation as deemed just embodied in the award.
A idtuat10n of actual apprehension, though not of aCtual danger. makes a caae of salvage compensation. The J088ph a. (frlgg,. 1 Ben. 83; Tha Raia, 1 Hagg. Adm. 247: Tha Hen1ll Ewbank. 1 8umn. 4OO.-[ED.
(Diltrlet OOtWl, 8. D. N_ Yori. April If, 1883.) 1. HAXmG Up A Tow-DUTY. It is the duty of those making tap a tow to act with that reasonable and emU. nary care which a prudent man exercises for the preservation of hie own propeny!.,·
8AHB-Pos1TlON IN KNOWLEDGE 'Oll' OWNER-fuLl"
Where the defendants, before leaving the Kill Von Kull; in Maroh, had taken the libelant's barge from the sccond tier, knowing she was an old boat, and pu& her in the .head tier, against the libelant's protest, and on coming out into New
York bay a gale suddenly sprang up, 'abOut 9 P.M" causing the boats to chafe as to start the sheer-plank of the libelant's boat, and to take in water faster than she could keep it clear, whereby she ·sank shortlyl)efore reaching thll landing at Jersey City, held, the were chargeable with negligence. in carelessly putti.ng the barge a position of special danger, when sbe was unfit to encounter the hazards of the trip at that season in the head tier. Held, also, that the libelant, knowing that his boat was old and weak, e.nd more deeply laden than the others, and unfit for the trip in the head tier e.t that season, should recover but half his damages, not having objected to proceed. ing on the voyage with his boat hi thiLt position.' Notwithstanding a previous protest against being removed to the head tier, there was concurrent negli. gence in both parties. To e.void responsibility the owner, in sullh case, must give notice of the unfitness of his barge for the trip in the front tier. anel refuse consent to proceed except at the risk of the tug.
In Admiralty. Benedict, Taft tJ Benedict. for libelant. Beebe. tJ Hobbs, for claimants. BROWN, J. The libel in case was filed tarecover damages for' the loss of the canal·boat J. with a cargo of 214 tons' of coal. She was one of afleat of, 18 Qoat,s, in five tiers, in towof the the Stakes, near Jersey Oity, by Bordentown, from New was in 'the head.' way of the Raritan river and. ,Kill Von tier, the second boat from the starboard side.. tow was consider-. the Kills, abquf ably belated, and passed New Brighton,. W: ha.lf.past 6, on March,27, 1877. On, iuto the. bay encountere,d an ebb tide, and shortly a high wind from the north-west, which made the water considi:lrltbly.rough, so as to over the bows of the head tier, and shortly befor,e arriving; at Jersey. City the Gillingham sank, bows first. with water. Without enteriug into the details of the testimony the conclusions to which I have come are as follows: .
(1) The weight of evidence does not show tbat at tbe time of passing .New Brighton and coming out into tbe bay there was any snch high wind or sign of rough weather as should charge the Bordentown with negligence or lessness in proceeding on her way, but that the high wind arose sUddenly, and increased rapidly some time after she had got out intothe bay,beHig at 9 t>. M. 23 miles per hour. (2) The progress of the Bordentown was slow,-;-onlr about one mile an hour; and theevidenc., does not satisJ:y me that after, the higqnorth-west.wind arose there was anything she could have better than to keep hel,' course as she did. ' .' (3) The Gillingham was an old boat; not stOut nor staunch, biitweakened: from age, and loaded within 15 to 18 inches of the water's edge,L.severai inchel' deeper than the other UIMtl><
(4) Prior to reaching Perth Amboy; she had been in the second tIer. DPOll some other boats being there left behind she was placed by those having charge of the tow in the head tier, against the protest of the libelant, but without any express notice that he regarded her as unfit to encounter the hazards of a trip across the bay in thu head tier, or any objection to going on in that position. (5) The captain of the Bordentown knew that she was an old and comparatively weak boat. (6) The immediate cause of her sinking was the chafing of the boats against each other in therongh water, starting and lifting her sheer-plank. causing her to leak and take in water, which came over her bows ana onller decks faster than she could be kept clEiar by her pumps. (7) No other boat was injured among the 18 in tow of the Bordentown, and none of 12 others that were in tow of the tug Cahill, which followed shortly behind, and arrived at the same station an hour later. . From these principal facts, and others not necessary to be enumerated, I find that the defendants, knowing that she was an old and weak boat and more deeply laden than the others, in transferring the Gillingham from the second to the head tier of boats, did not act with that reasonable and ordinary care which a prUdent man exercises for the preservation of his own property, and which they were bound to bestow upon the libelant's boat, and were therefore chargeable with negligence in so doing. While it is not certain that the Gillingham might not have sunk if allowed to remain in one of the after tiers of the tow, it is not certain that she would have done so j while it is certain that placing her in front exposed her to more hazard and to grEiater danger; and for their acts in doing sq the respondents must be held chargeable with negligence contributing to her loss. The fact that no other boat was injured out of the 30 that came through the bay in this sudden north-westerly gale, is sufficient evidence that this boat was not fit, either by her age or deep loa'ding, to encounter the ordinary hazards of a tripin March in the front tier. The libelant, as owner, and well acql1ainted with the route, and present all the time, is chargeable with knowledge of the unfitness of his boat for this exposure. Had he wished to exempt himself from responsibility in case of her loss, he was bound to do something more than merely to protest against the boat being placed in the front tier; forthat is what most boats objecr to, and avoid. if they can do so; he should also have forbidden his beat to be taken along in that position, or given express notice that she was unfit to encounter the hazards of the head tier, and that the defendants would be held andwerable for
any loss. Not having objected to proceeding in the tow if his boat was to be put in the front tier, nor given any notice of her weak and unfit condition, he must be deemed to have acquiesced in her subsequent going on, notwithstanding his former protest; and I JOust, therefore, hold him jointly chargeable wjth fault. This court has repeatedly held it negligence in both the owner and the tug to proceed on a voyage with a tow known to both to be unfit to encounter the hazards of the trip. The Murtaugh, 3 FED. REP. 404; The Wm. Cox, ld. 645, and 9 FED. REP. 672; Connolly v. Ross, 11 FED. REP. 342, 346. It is an ancient practice of the admiralty to scrutinize closely claim& resting on the 108S of old or weak vessels. The necessity of preventing abuses of this kind was such that the ancient laws bore with some severity upon vessels that might be soun:d and staunch. By article 14 of the Laws of O1eron, it was providtld that "if a vessel, being moored, lying at anchor, be struck, or grappled with another vessel under sail that is not very well steered, whereby the vessel at anchor is prejudiced, as also wines or merchandise in each of the said ships damnined, in this case the whole damage shall be in com· mon, and be equally divided and appraised half by half, and the master and mariners of the vessel that struck or grappled with the other, shall be bound to swear on the Holy Evangelists that they did it not willingly or willfully. The reason why this judgment was first given, being that an old decayed vessel might not purposely be put in the way of a better; which the rather be prevented when they know that the damage must be divided." And similarly by article 26 of the Laws of Wisbury, it was provided that"If a ship riding at anchor in a harl>or is struck by another ship which runs against her, driven by the wind or current, and the ship so struck receives damage, either in her hulk or cargo, the two ships shall jointly stand to the loss; but if the ship that struck against the other might have avoided it, if it was done by the tnaster on purpose, or by his fault, he alone shall make satisfaction. The reason is that some masters, who have old crazy ships, may willingly lie in other ships' way that they may be damnified or sunk, and so have more than they were worth for them. On which account this law provides that the damage shall be divided and paid equally by the two ships, to oblige both to take care and keep clear of such accidents as much as they can." Cited from 1 Pet. Adm. Rep. xxvii, xxviii.
Upon the same principle the owner of a barge, unfit for the trip or for the position assigned her on the tow, must be held required to show show at least that he dissented to proceeding upon the voyage, v.16,no.2-18
in order to absolve him from hig Bhare of the responsibility in case of her subsequent lOBS. Nor can it be Buffered that old barges be run until they sink, and the whole 10BB be then charged upon the tug. Judgment may be entered for the libelant for one-hall his damages, with costs, with a reference to compute the amount.
(Di8triot (loure, W. D. Penn8ullJania. May Term, 188S.\
L CoLT,ISION-FAILURE TO ANBWER SIGNAL-RULE 8. Where two steamers are running in the same direction, and the one astern. under the eighth rule for the government of pilots on western nvers, signals her desire to pass the one ahead, the latter is boum! to answer the signal, and the failure to respond is a fault in her; but such failnre, so far from exonerating the pursuing steamer from taking the care demanded by the circumstances to avoid a collision, calls for special caution on her part. 2. Tow-BoAT ON WESTERN R[VER-LIABILITY FOR NEGLIGENOE-NoT CoMMON CARRIER-ABANDONMENT OF WRECKED Tow. While the owners of a western-river tOW-boat, who have undertaken to tow a barge and deliver it at an agreed place, are not common carriers, they are bailees for hire, bound to fulfill their engagement, unless prevented by some cause affording lawful excuse; and if, by reason of their culpable negligence, the barg-e while in their exclusive custody is wrecked and sunk, the duty of rescue, if practicable, is upon them. Hence, when sued by the owner for a total loss, they will not be heard to allege that he might have mitigated th.e damages by raising the barge.
Barton Son, for libelant. Knox d; Reed, for the D. Newcomb. Kennedy d; Duty, for the C. W. Batchelor. J. The complainant was the owner of a. barge having lying in the Allegheny river at the foot of aboard a cargo of Thirty-second street, Pittsburgh, which the steam tow-boat D. New. (Jomb undertook to tow from that point to Braddock, on the Monongahela river.' On the morning of April 21, 1882, the barge was delivered into the custody of the Newcomb, which proceeded therewith down the Allegheny river. At this time the steam-boat C. W. Batchillor was .coming up the Ohio river to her landing on the Monongahela river at the foot of Wood street, in the port of Pittsburgh. When the Newcomb had reached the Union bridge which spans the Allegheny near the confluence of the two rivers, the Batchelor was