(Dlsl.rict C'ourt, W. D. PennsylfJania.
1. WHARVES-RIGHT TO MOOR VESSELS.
:.I.. SA.I>lE-POSITION OF STEAM-BoAT.
A steam-boat lying at a wharf-boat at the public landing of Pittsburgh, threw her stern out in the way of a descending coal-tow, when she might have lain broadside to the wharf-boat, and thus afforded a sufficient passage-way for the tow-boat and tow. A collision occurring, he!d, that the steam-boat was answerable to the owner of a coal-boat thereby lost. In case of a collision between a coal-tow and a vessel wrongfully the channel-way, the previous fault of another vessel, in and throwmg out of shape the coal-tow, is not to be imputed to the tow-boat, if the latter were free from blame. An innocent party who sustains loss by reason of the concurrent negligence of two vessels may pursue and recover the entire damages from either wrongdoer.
SAME-OOLLISION WITH Tow.
SAME-MuTUAL FAULT-DAMAGES RECOVERARLE FROM ErrIllllR VESSEL.
In Admiralty. Knox et Reed, for libelants. Barton et Son, for respondents. ACHESON, J. The St. LawrencEi, a steamer plying in the Pittsburgh and Cincinnati trade, early on the morning of March 31, 1883, came into the port of Pittsburgh, landing at the Phillips wharf-boat, which lies at the public wharf, her usual place for receiving aud discharging cargo and passengers. This wharf-boat is at the north shore of the Monongahela river, 840 feet below the Smithfield Street bridge. 'fhe head of the St. Lawrence was to the wharf-boat, and she lay quartering out in the river, her stern projecting into the coal-hoat channel. A barge at the lower end aud two tow-boats immediately above the wharf-boat prevented the St. Lawrence, upon her arrival, from getting broadside against the wharf-boat. Andrew Hazlett, the mate of the St. Lawrence, testifies, however, that these tow-boats moved away between 8 and 9 o'clock that morning. The Monongahela river was rapidly rising to a coal-boat stage, when the St. Lawrence came into port,and by 7 o'clock had reached a stage of 9 feet, and by 10 o'clock that morning had reached 11 feet. The rise was altogether out of the Monongahela river, and hence the current was exceedingly rapid. Descending coal-tows customarily used the span between the first and second old piers of the Smithfield Street bridge, and at that particular time it was the only open span, the others being then closed by piles and trestle-work, the bridge being in process of reconstruction. The "Robinson fleet" of coal-boats, etc., (Jonsisting of upwards of 40 pieces, lay in the river moored to the
THE ST. LAWRENCE.
third pier of the bridge, and extending down past the St. Lawrence, I)r nearly so. This fleet, whioh had been there for some time, greatly narrowed the passage-way for descending tows. The St. Lawrence still further contracted this passage-way, and her projecting position reduced the space between her and the fleet to 200 feet or less. From the Smithfield Street bridge down to a point below the Phillips wharfboat, the natural direction of the current is in towards the north shore, and this tendency, on the occasion in question, was rather increased by the obstruction at the bridge already mentioned and the Robinson fleet. It is shown that on a Monongabela rise, the proper method for a tow-boat with a coal-tow, to run this part of the river, is by flanking; i. e., setting the tow-boat quartering with her head down stream and in towards the north shore, then backing against the cross CUfrent and floating downward. This of course requIres more space than does steering or running head on. Under all the evidence, I find without hesitation that the St. Lawrence, in the quartering position in which she lay, ocoupied and was an obstruction to a considerable portion of the working channel used by tow-boats having coal-tows in charge, and which in the then con· dition of affairs it was necessary for them to use, and that her posi· tion was one of great peril both to herself and descending'tows. This is substantiated not only by the general testimony but by what actually occurred in the space of a very few hours. Hazlett, the mate, states that the St. Lawrence was struck by the tow-boats Sam Robinson and the Tide, (he thinks,) and it is in proof that she was also struck by the tow-boat Blackmore, and all this before the disaster out of which this suit grew. Between 9 and 10 o'clock that morning James T. Fawcett went to the St. Lawrence and warned her master, Capt. List, that she was lying right in the channel, endangering both herself and descending coal-tows; and immediately after the Blackmore struck her (which it would seem was about half an hour before the disaster under investigation) J. Sharp MoDonald gave Capt. List a like warning and advised him to take his boat altogether away from that place. In anticipation of a coal-boat rise the libelants bad employed the tow-boat Abe Hays to take certain coal-boats belonging to them from the Tenth Street bridge down to the foot of Brunot's island, there to be made up in a tow for Louisville. During the forenoon of March 31st, the Abe Hays took in charge one of these coal-boats and proceeded with it down stream. When she had reached a point some 200 feet above the Smithfield Street bridge, the tow-boat Acorn struck her, but doing her no sedous damage, and not injuring the coal-boat. The effect of the stroke was to put the Abe Hays somewhat out of shape to run the bridge, but ber pilot states she had recovered herself when she passed ullder the bridge; and I think the evidence favors the conclusion that she was kept in proper position and rightly handled below the bridge, and throughout was free from fault. Never-
the]ess the head of her struck the wheel, or immediately forward of the wheel, of the St. Lawrence, passing under her guard. The effect of the collision was to so injure the coal-boat t'hat it sank in a few minutes, and, with, its cargo of coal, became a total loss. Immediately after this collision the St. Lawrence changed her position, moving up broadside against the wharf-boat. I am well satisfied from the proofs that had she taken this position sooner, the Abe Hays and her tow wOllld have passed down safely and this loss have been avoided., The collision occurred about 11 o'clock A. M.Now, it clearly appears that at an earlier hour the tow-boats which lay above the wharf-boat had moved away, .and there was nothing to prevent the St. Lawrence from taking, before the catastrophe, the position she took afterwards. Indeed, between the time the Blackmore struck her and the approach of the Abe Hays she might have made this change in her position. That she did not sooner do so-especially.in view of the collisions which had already ocqurred, 'and the warnings given her master-was entirely.inexcusable.. ' '. . . Experienced river men testify that, under the peculiar circumstances then ordinary prudence required the St. Lawrence to avoid, or,go .away from the Phillips wharf':boat take a position at the city wharf, .lower down, which the. evidence indicates was available to her. Coal-boat rises, as is well known, are often of short duration, and the river must be' "taken at the flood" by outgoing, coal.tows.· There is therefore great force in the argument urged by the libelants' counsel, that it was the of the' St. Lawrence to yield the whole space the wharf-boat and the Robinson fleet-none too large for the requirements of the occasion -to descending tows, (The Exohange, 10 Blatchf. 168,) but 'it is not necessary to decide whether or not such was ber duty. The culpability which makes the' St. Lawrence justly answerable to the libelants' the loss of their property, consisted ,in her unnecessarily encroaching upon the ordinary coal-boat channel by throwing her stetu out in the way ofdescendiilg tows, when she might have lain broadside to the wharf-boat, and thus afforded the Abe Hays a sufficient passage-way. . Undoubtedly the mooring of vessels at public wharves is a well recognized right, as much to be protected by the law as that of navigation itseff. But it is to be exercised with due regard to the rights of passing vessels. An unnecessary encroachment upon the channel-way, which greatly imperils pa8sing craft, is without justifica-' tion. It may have been more convenient to the St. Lawrence to receive and discharge her cargo with her bow to the wharf-boat, but this is a poor excuse for putting in needless jeopardy descending tows. It is, however, asserted that the Abe Hays had not sufficient power to control and manage 'her tow, in the then stage of the river and
-331 strong current, and.tha.t it )Vas to. emplqy her for the service she undertook. But· this defe'nfSe, I think, is not made out. This employment was her ordinary business, and while she was less powerful than some other she was reasonahly fit for the work. On this occasion she had in charge but a single coal.boat, which she had sufficient power to manage had the channel-way she had a right to use been unobstructed. It is quitEj t.rue that after she had passed the Smithfield Street bridge, (where her pilot first discovered the projecting position of the St. Lawrence,) she haq not power to back up stream, and thus avoid the danger. But tow·boats withcolll-towa descending the Monongahela and Ohio rivers are not expected, and ordinarily have not the ability, to.back up stream, or even to hold their tows against a strong current. Fawcett \T. The L. W. Morgan, 6 FED. REP. 200. The coal. is. taken out op freshets, the tow-boat guiding the tow. It is further claimed on the part of the that tpe Abe Hltys, having gone,up the river at about 8 o'clock on the morning OfM'8.rch 31st, in sight of the place where the St. Lawrence lay, wa.s chargeable with notice of her position, and therefore was in fault in coming down at all. But the Abe Hays went up without any tow, and the St. Lawrence was not in her way. Her master and pilot state that they do not remember to have observed the St. Lawrence; but if they had just come into port did, they may well have supposed .that or was about to leave. At any rate, they were not bound to assume that she would continue to lie in her then position for se'Veral hours, and after coal-tows had commenced coming down. Again, it is insisted that the disaster'was brought about by the previous collision between the' Acorn and: Abe Ha.yes. The evidence, Moreover, in tb,atmathowever, leads me to a ter the Acorn was exclusively to blame. Tllerefore, if her stroke did put the Abe Hays out of shape and thus contributed to the misfor. tune, her fault is not to be imputed to tqe innocent vessel. But did it appear that the Abe· Hays w8.sguilty of contributory negligence, what then? The libelants were not her oW'neu nor answerable for her misconduct. Now, it is a. recognized principle of law that an innocent party who sustains a loss by reason of the concurrent negligence of two vessels may pursue ana recover. the entire damage from either wrong-doer. The Atla8, 93U. 8. 802; The F'ranconia, 16 FED. REp. 149. And herein is to be found the answer to the suggestion (if true) that the Robinson fleet wrongfully narrowed ) the coa.l-boat channel. The evidence the value per bushel of .the coal to be asstated in the libel, andss to quality there seems to be no .' Let a decree be drawuin favor of 'the libelantilforthe atnou,nt of their claim, with interest from March 31, 1883,
C. BARKER, Her Tackle, etc.
February 2, 1884.)
Court, D. New Je'l'sey.
In consequence of a disagreement between the master of a vessel and hIS seamen about the amount of wages due them, the mariners were ordered to go to work or go on They agreed to go ashore if he would give them orders for their wages, stating that they would regard themselves in that case as discharged. The master gave them the orders, and the saHol's left the vessel. Held, that they were discharged, and were not to be looked on as deserters. Upon the wrongful discharA'e of a workman engaged under an entire can· tract, he is entitled to recover his wages during actual service.
2. ENTIRE CONTRACT-DrsCHARGE-RECOVERY OF WAGES EARNED.
STATUTORY REMEDY' NOT ExCLUSIVE.
The remedy afforded seamen bY' sections 4546 and 4547 of the Statutes is not exclusive, and the usual process in rem against the vessel is still open to them.
Libel in rem for wages. « McGee, for libelants. E. A. Ransom, for respondents. NIXON, J. A careful reading of the voluminous testimony in this case shows that the unfortunate misunderstanding between the owners and. the crew, leading to the present controversies, has arisen from the double-faced dealing of the master, Raynor. It must be borne in D;lind that seamen of this class are generally ignorap.t; and are often imposed on, and that such imposition makes them suspicious, The libelants were hired at $25 a month and a bonus of three cents for every 1,000 fish caught during the season. There seems to have been no very definite arrangement when their wages were to be payable. The owners testify what their understanding was, and what instructions. they gave to the master in regard to the hiring of the crew. But there is no evidence that any. hint was given to the libelants that the payment of three cents per thousand on the fish taken was contingent on their remaining to the end of the season, or that no Pltyment was to be made on account until the season ended, or that t.l;1e men would be expected to have deducted from their wages all that was expended for grub above three dollars a weeJt. On the contrary, I thinlt it is a fair inference, from the testimony, that the libelants thought at the time of their hiring that their wages would be paid pl0llthly, and the bonus, or as itwas earned, and as.they desired to have it. ' . ', It appears that some of the crew had been eplployedin t;be previous year bY,the saIIlemaster and n08uggestion was that theY receive. account of the end of the be anything of their grub, 'Whatever the cost of it might be. But after the season's work was fully under way news came to the ears of the libelants that these new terms were to be im·