. On the whole case, while I am not prepared to say that I would have made the same allowance as the district judge has, had the case come before me originally, I now see no good reason to vary the amonnt. When no additional testimony is taken the circuit court will not hastily disturb a decree on the point of damages, nor unless it shows manifest injustice. See Cushman v. Ryan, 1 Story, 91; The Narragansett, 1 Blatchf. 211; Taylor v. Ha1'wood, Taney, 487. In Cushman v. Ryan, supra, Justice STORY says:
"In cases of ihis nature, where the damagf's are necessarily u:1ccrbtin, and are incapable of being ascertained by any precise rule, and therefore unavoidahly rest in a great measure in the exercise of a sound discretion hy the court, upon all the circumstances in eviLience at the hearing. it is with extreme reluctance that the appellate cOllrt entertain" any appeal, and it expects the appellant to show, beyond ,my reasonable donbt, that there has been some clear mistake or error of' the court below, either in promulgating an incorrect rille 'Of law or in awarding excessive damages, or that new evidence is oirereLl which materially changes the original aspect of the case."
A decree will be entered for the libelant in the same terms as the court oelu IV.
June 20,1883 I
Court, S. D. Kew York.
1. DUTY OF SIITP TO FI:>D TIERTII.
In the of am' a!!;reempnt or contrary ljOag:fl, it is the duty of a general slJip to find a berth where she can discharge on the wharf. On a hill of la ling providing that iron rails shoulrl he dischar!!ed "at the same place as the other eargo -only one plllce," the rluty of the ship to go to a LJerth wh 1'1' the rhils could he discharged on tlw wharf.
'Vl:ere the hark A., while rlischarging petroleum ['arrels he fore reaching hpr herth, not;("c of readine's to rlL,charge the iron rail_, and was at a dock where thc privilege of landing the rails re!userl, even for purpose of w"ighing hem itl tile conrse of c. and negutllltlons III res.pect to the ,rschar!!;e from the upon I ghters were not complc:ed t!lrouc'h thJ mate's not giving unqnalified perm'ssi"n to weigh tbe iron on s',.p's deck, IV'd, that the ([d,'n,lant was not le!!alIy in cJefau:t, and was not lial,le lor c1emnrrage for the "cssel"s de.ay at tho duck where she was not alluwed to land the ra.ls.
In Admirfllty. Beebe, lVilcn:c J: Hobbs, for lihelants. Edward S. Ilulibe, for respondents. BROWN, J. Demurrage to the amonnt of $129.60 is claimed in this casE' for three-days' detention of the NorwegIan bark Anna in the delivery of 181 iron rails in 8eptember, 1880, consigned to the respondents. The cargo, which was conl:lignerl to several different consignees, consisted of pig-iron stowed at tl1e uJttom; -next, the iron
TEILMAN V. PLOCK.
rails, weighing onlyahout 35 tone;; and on top S0me 600 empty petro':· Ieurn barrels. The clanse in the defendant's bill of lading relating to discharge was as follows: "To be discharged in the same place as the other cargo-only O:le place; to commence imminently" (immediately?) "after arrival of the ship, and dis:}harge without delay; other terms as per charter-party." By the charter, to which the spondents were not parties, £u per day demnrrage were to be paid. The bark arrired in New York in the latter part of AUl;ust andlVent to Atlantic clocks. Shortly after, on September 18t, she was visited by Capt. Gillen, who was ill charge of the iignters by which it was expected to receive the rails, and he was told by the mate that the barrels woulll not be discharged for several days;; 'rhe bark did not at first get a herth at the wharf. but disch" 6ed the barrels while lying outside of another vessel. Tilis was finished by 9 A. M. of Saturday, September 4th. In the afternoon of that day she got along-side a wharf. The custom-house permit for deli very of tlle rails had been previously handed to the mate by Gillen. Ou Saturday it was returned to Gillen, who gave it to the United States weigher, by whom it was necessary that the rails should be we:ghed as deli vere.d from the vesvessel hud no bedil along-side till Saturday afternoon, sel. As the iron could not haNe been delivererl on the wharf so as to be weighed nntil MOllllay. A special pel mit could easily have been obtained to weigh the iron on the deck of the vessel. Gillen on Saturday applied to the mate for permission to weigh the iron on deck, preparatory to receiving the cargo on lighters. There is some conflict as to the reply of the mate to this request. I am satisfied, however, that he did not give any unqualified permission, but required Gillen to apply to the captain, who was away from the ship, or to the ship's agent in New York. This Gillen declined to do. On Tuesday the vessel was moved to Merchants' Stores, where all the rails were on Wednesday put upon a wharf, weighed, and thence transfereJ to Gillen's lighters; anu the pig-iron was discharged also. The iron rails formed but a small part of t.he cargo, (mel the vessel was in no way directed by tue reopondunts to the Atluntic docks or to Merchants' Stores, and the respondents had no control over her ruo,ements. The libelants claim compeusation fur the delay of Saturday, Monday, and TUlJsday. In the absence of any agreement or US:lge to the contrary, it was the duty of this vessel, as a general ship, to find a 1;,rth where sue could discharge the rails on the }Vharf. unle"s rc:ieveJ from that burden by some diffel'ent arrangement, and until tllCn the respondents' duty to commence the discharge did 'not begin. lrzo v. Perkin!!, 10 FED. R,;;p. 779; GrlJl/stlldt v. lVitthlJp, t5 Fl,;D. REP. 2li5. There was no contract in this case to receive the rails on The repeated proposals to receive them on lighters was subject to the necessary condition of some for weighing tl10 irull; unJ t11e use of
the ship's deckfor this purpose was' not by the mate."" It was his business, and not Gillen's, to seek the captain or the agents of the vessel to get authority to give that permission, since the whole arrangement was for the purpose of expediting the delivery of the rails and of relieving the vessel from an obligation to deliver on the wharf, which she was not then in a situation to do, For want of permission to weigh on deck, no arrangement was completed for delivery by lighters, and the burden still remained on the vessel to find a propel' place of discharge, which she did not do until the following \Vednesday. ' 1\1oreover, it appears by the testimony of Thompson that the iron rails were not allowed to be landed at the Atlantic docks, as was the case also in Carsanego v. Wheeler, 16 FED. REP. 248; and I have resupra, tllat one of· cently held, in the case of Grol1stadt v. several consignees of goods on a general ship, who bas no right or power to direct the vessel to a berth, is not responsible for the detention of the vessel until she has reach a berth or proper place to cl discharge, and is in actual l'eacliness to discharge according to her legal obligation, unless there be some different expre3S contract making the consignee liable before that time. On Satnrday afternoon the vessel got a berth along-side the wharf, so that if the rails had been allowed to be lan(led there, the respondents would have been. bound to discharge them during 1\1onday. In answer to a qnestioo from the court, Thompson, the libelant's witness, stated explicity that the iron were not allowed to IJe landed at Atlantic docks, eren for the pmpose of ,,·ei;;hing. If the iron rails and pig-iron wonld have been sutfered to be landed there, no reason appears for the ve3sel's going to Merchants' Stores, nor any rGfLSOn why notice of her read ness to deliver at Atlantic dock after she got a IJerth on Saturday afternoon was not given. But as the discharge of the rails was not premitted thete, even for weighing, the re'spondents cannot IJe charged for any delay of the bark at the Atlantic docks.· , The stipulation of the bill of lading that the vessel should go to only one place of disc'large, could have no force in charging the respomlents for delay, unless the dock which the vessel selected was one· where she could land the cargo, or at least the respondents' part of it. _\s the respondents were not lerrally bound to accept delivery on lighters, aJ?d as no arrangement ;as perfected for delivery on' lightei"s while at Atlantic docks, tlJrough want of any arrangement, for 'Weighing the rails, the vessel mTlst bear the loss occadoned by her first going to a place of dischal·cra. where she could not make de- ' , 0 hveryof the respondents' part of the cargo, as in the case of Carsanego . v; Wlzeela, above ·cited. After reaching Merchants' Stores there was no delay detention, and the libel must, therefore, be dismissed, with <lasts:
June 2<3, 1883.)
(District Court, S. D. New York.
If a canal-boat, aft,'r heing assIgned a bcrth within the slip, is moved so to project beyon'l the pier, and there left with no one on board, it is at her own risk of collision with other vessels making a landing.
The steamer 0., in making a landing at the pier below, baving struck the bows of the canal-boat in rounding about, held, she was also chargeable with fault, as there was room for her to land without coming up so far as the canalboat; and the damages of the collision were divided.
'Where the owner of the cargo recovers his whole damage from one of two vessels in fault, the vessel sued may set-off in another suit hetween the owners of the two vessels, tried at the same time, the one-half of the damage to tlw cargo which ought to be paid 1Jy the other vessel.
J. A. Hyland, for lihelants. Butler, Stillman J: Hubbard, for claimants.
BROWN, J. The libels in the abo ve cases were filed by the owner of the canal-boat Charles T. Redfield, and by the owners of the 223 tons of coal on board of her, to recover their respective damages from the sinking of the canal-boat by a collision with the steam-boat Canima, about 11 A. !II. of the twenty-seventh of AI.lgust, 1880. The weight of evidence shows that the canal-boat, though previously assigned by the harbor-master to a berth wholly within the slip on the north side of pier 48, North river, the afternoon before, had been movod further out that morning by her captain, preparatory to discharging the coal, and that at the time of the collision she was lying on the north siue of the pier, with her bows projectilig some 10 or 15 feet into the river beyond the end of the pier. The Canima had come up the river with a strong flood·tide and a southerly wind, and was preparing to land at the sOIlth side of pier 47, bows out. For that purpose a line had been cast from her starboard quarter and made fast to the end of pier 47, and as she drifted up slowly with the tide, and with her eugines reversed, the bluff of her starboard bow struck, or rubbed against, the starboard bow of the canal-boat, causing the latter to sink almost immediately. No one was aboard the 'canal-boat at the time, and the steamer's hail to move, or loosen her lines, were therefore unheeded. The witnesHes frOm the steamer say that the blow was only the ot"dinary rubbing of yessels against each other in such circumstances, and that the canal-boat sank only because she was old, and too rotten to 'withstand the ordinary pressure. The canal-boat was 12 years old, and had been extensively repaired, except her bow and stern. That hails were given to the canal-boat to mow, or loosen her lines, leads to the inference that the collision was not a Ulere rubbing or pressure, but was some·