A suggestion of perjury, however, would be unwarranted. As reasonably might it be said that the libelant's lights were not burning because the respondent's witnesses did not see them. The lights were burning, and the respondent's lookout was vigilant and sufficient. No other conclusion is admissible. The latter fact is as satisfactorily proved as the former. Why the lights were not seen need not be determined. The case, in this respect, is strikingly similar to that of The Narragansett, 8 FED. REP. 253, and 11 FED. REP. 291; and what is there said on this subject is equally applicable here. A solution of the problem may, however, be found in the suggestion that the position of the vessels was not that ascribed to them by thfl libelant. A slight change would so place them that neither side-light could be seen from the steamer, and thus reconcile all the testimony. That such was their position, seems very probable, if not entirely clear, from the facts that the side-light was not seen, and that a white light, corresponding with the libelant's binnacle light, (which was carried unusually high,) was seen. There is little testimony less satisfactory than that respecting the position of· vessels preceding a collision. The reliance placed on the supposed direction of the blow received by the respondent, is not justified by anything in the case. She sank immediately after receiving it, barely affording time for the crew to escape. The officers' hasty glance at the wound was sufficient to see its fatal character, but not to form a judgment respecting the question under consideration, and it is quite certain this was not in mind. The libel must be dismissed, with costs.
THE EPHRAIM AND ANNA. 1
(Oircuit Oourt, E. D. PennsyZfJania.
May 5, 1884.)
s.u.VAGE-SEVERAL SALVORS-DEVIATION BY Tow-INTERPLEADER BETWE.EN SEVERAL SALVORS. Where a tow.boat, while towing 8 ship from one port to another, by 8 slight
deviation, rescues an abandoned vessel and tows it astern to port, the tOW-boat is alone entitled to salvage. A deviation for the purpose of rescuing 8 vessel may affect the insurance of the tow, and force a breach of the contract of tow. age; but that does not entitle the tow to COll1l)ensation in the nature of salvage.
Appeal by the Mary L. Cushing from the Decree of the District Court awarding salvage exclusively to the tug Storm King. Libels were filed by the masters of the tow-boat Storm King and the ship Mary L. Cushing, presenting substantially the same facts, as follows: That on the fifteenth day of June, 1883, at 6 o'clock A.
by Albert B. Guilbert, Esq., of the Philadelphia bar.
THE EPHlU.IM AND ANNA..
the said tow-boat Storm King was proceeding from Boston to Philadelphia, with the ship Mary L. Cushing in tow, bound for Philadelphia, and when off Barnegat light, bearing W. tN., and about 27 miles distant, the master of the tow-boat sighted a schooner in distress, with flags flying in the fore and main rigging, to seaward of the tug-boat, and on her port bow, about 10 miles distant; that the tow-boat thereupon altered its course and stood towards the vessel, which appeared to be in distress; that he sent a boat with men on board, and found the schooner abandoned; that thereupon he took the schooner in tow, astern of the ship, fastened with a hawser to the tow-boat, and towed both into the breakwater, at which place he procured the services of another tug to take the ship . to Philadelphia, and proceeded with the schooner in tow to the port of Philadelphia, where he arrived in safety on the following morning. By agreement of counsel for the three vessels and for the Virginia Home Insurance Company, the court decreed an interpleader between the parties, and fixed the amount of salvage at $1,200. Sub., sequently judgment was entered for the full amount of salvage in favor ofthe Storm King, whereupon the Mary L. Cushing appealed. Curtis Tilden and Henry Flande'ts, for appellants. Where the cargo being towed assents, or may be presumed to have assented, to a deviation to rescue a vessel, it is entitled to a proportion of the salvage. The Blaireau,2 Cranch, 240; The Nathaniel Hooper, 3 Sumn. 543. That delay or departure from the course of the voyage to save property is a deviation, and involves a loss of insurance, is a well-settled principle of American law. The Cora, 2 Wash. C. C. 80; Foster v. Gardner, Amer. Jur. No. 21; The Henry Ewbank, 1 Sumn. 400. In the latter case Judge STORY said that any stoppage on the high seas, except for the purpose of saving life, would be a deviation, and diBcharge the underwriter. The Boston and Cargo, Id. 328. This is likewise the law of England, and so expressly held in Scaramango v. Stamp, L. R. 5 C. P. Div. 295. Morton P. Henry, for the Storm King. Towage is a contract by which the tug undertakes to expedite a voyage. The tug is neither a common carrier nor a. bailee of the tow. Transp. Line v. Hope, 95 U. S. 297. The tug is not the servant of the tow, nor are its servants the servants of the ship. Sturgis v. Boyer, 24 How. 110; The Galatea, 92 U. S. 439; The James Gray. 21 How. 184. When a tug undertakes to tow a vessel, each vessel. in its own way, is liable for the acts of its servants, and not one for the other,-the ship, if its servants, and the tug, if its servants, are in fault. The Galatea, supra; The Margaret, 94 U. S. 494. But if the ship had the right to refuse, such services are not of the merit which makes the owner of the vessel a salvor, or entitles him to participate. Such services are compensated by way of equitable compensation, when any real damage is done or a loss is sustained. Hawkins Avery, 32 Barb. 551; The Oharlotte, 3 W. Rob. 68. If a devi-
ation does take place for the purpose of a rescue, the tug becomes an insurer of itself and the ship in tow, and liable for any subsequent misadventures. Scaramango v. Stamp, L. R. 5 C. P. Div. 299; Davis v. Ga1'rett, 6 Bing. 716. McKENNAN, J. Obviously, the just basis of apportionment of salvage among several salvors is the extent of the salvage service rendered by them respectively. Judged by this standard, it is difficult to see upon what ground of merit the claim of the Mary L. Cushing, for any part of the salvage allowed, can rest. It is true that the derelict schooner was fastened to her by a hawser, and in this condition they were towed to the Delaware breakwater by the steam-tug Storm King. But she was only a passive means of towage employed by the tug, and rendered no actual, effective service herself. This' was altogether performed by the tug. There is no other evidence of contributory service by the ship, and I think that is not of a character, under the circumstances, to entitle her to any part of the salvage compensation. It was earnestly urged by the learned proctor for the appellant that the ship ought, at least, to share in the salvage, because she was taken out of her course by the and thus subjected to the risk of forfeiture of her policy of insurance. Really, the departure made from the ship's most direct path did not involve any increase of the hazards of navigation. The deflection from a direct course was so slight, and the consequent prolongation of the voyage so inconsiderable, that both may be said to be inappreciable. Besides, when the signals of the distressed vessel 'were seen, the tug had good reason to apprehend that human life was in peril, and so was justified in going to ber relief. But when it was found that the crew of the schooner had abandoned her, and that no merely humane service was needed, the tug, by attaching a hawser to her and towing her to a place of safety, may have thereby been guilty of a deviation, in its narrowest, technical sense. It may also have devolved upon itself the liabilities of the Mary L. Cushing's insurers, and have incurred damages for a formal breach of its contract of towage; but all this did not constitute the Mary L. Cushing a salvor, and entitle her to compensation, which can be claimed in that character alone. A decree will therefore be entered awarding the whole salvage fund to the Storm King, dismissing the libel of L. W. Brown, master of the Mary L. Cushing, and directing that the costs of his interpleader be paid by him and his stipulator.
TEILMAN .V. TEILMAN
(Oirouit Court, 8. D. New York. July 30,1884.)
When a charter-party specifies that the cargo shall be discharged at the same place as the other cargo, snchdlscharging to commence immediately after arrival of the ship, in order to recover demurrage from the consignee, the master must show that he provided a suitable place for discharging the goods, or his inability to do so, or else some circumstance relieving him of his duty to provide such suitable place.
2. SAME-WHAT 18 A "SurrABLE PI,ACE." A suitable place for discharging iron rails is not a place at which the customs officers will not weigh such article, and is not a place where the owners . of the wharf will not permit iron rails to be landed.
Beebe, Wilcox et Hobbs, for libelant. E. S. Hubbe, for respondent.
WALLACE, J. This is a libel by the master of the Norwegian bark Anna against the respondents, as consignees of part of the cargo, for demurrage for three days' detention in discharging cargo. The cargo was carried under a charter-party with one Wissman, and was consigned to several· consignees, and consisted of empty petroleum barrels, iron rails, and pig-iron, the barrels being stowed on top. The respondents were the consignees of the iron rails only, and these were shipped under a bill of lading which, after providing for the terms of freight, specified that the cargo should be discharged at the same place as the other cargo, to immediately after arrival of the ship, without delay, and "all other conditions all per charterparty with Mr. Wissman." The charter-party provided for loading and discharging the vessel with customary quick dispatch, the cargo to be received and delivered along-side the vessel, within reach of her tackles, at consignee's risk and expense; lighterage, if any, to be borne by the cargo, and for demurrage at the rate of £9 per day for each days' detention by default of charterer. The bark arrived at the port of New York, August 30, 1880, and proceeded to the Atlantic docks to discharge the barrels. The respondents were duly notified by the agent of the vessel-owners, and asked to attend to the discharge the rails as soon as the barrels should be discharged, and they promised to send a lighter to receive the rails if they could obtain a custom-house permit. On September 3d the captain of the lighterman, to whom respondents had given a delivery order, left the order with the mateof the bark, promised to Bend a lighter as soon as she was ready to discharge the rails, and was informed by the mate that she would be ready the next morning between 9 and 10 o'clock. At that time she was not along-side the wharf, but was discharging the barrels while l:ying aside of another vessel. On Saturday, September 4th, the captain of the lighter called