THE B. B. BAKER.
viz., that she would carry 300 tons "if it could be got aboard;" while, if made in the positive form alleged by the broker, there is no reason why the charter-party, drawn up by himself, should not have contained it. Moreover, within a week after the execution of the charterparty, in a conversation between the broker and the master, the broker desired the master to saw the logwood in order to have it packed more compactly, and thus be able to bring as large an amount as possible; and he offered to contribute something for that purpose. But the master declined to do anything about sawing, as not incumbent on him. Such a conversation seems to me less likely to have occurred had it been understood that the brig was at all events to bring from 290 to 300 tons of logwood, than if the amount she would bring was understood to be dependent upon her capacity for stowage. If the rule of law which makes the writing the highest evidence of the ,actual contract between the parties, and which excludes evidence of prior conversations to vary it, or to attach to it new conditions or obligations, is to be relaxed in cases of fraud, actual or constructive, or in case of mutual mistake, the evidence showing such fraud or mistake must be entirely clear and satisfactory to the court; and in case of doubt, at least, the writing, as it stands, must prevail. The libelants are, therefore, entitled to the balance due according to the terms of the charter-party, with interest and costs.
THE S. B. BAKER, etc.'
(District Oourt, S. D. New York.
SALVAGE-FIRE IN COTTON-TOWAGE.
A fire broke out during a westerly gale among the cotton bales which composed the cargo of the lighter Baker, lying along-side the Servia. The slip was filled with boats, which were imperiled by the fire, and the fire could .not be extinguished there. Upon signal from the superintendent of the whl',rf, the tug L. towed her out from the slip into the river, and played upon the'fire with a small hose until the arrival of two city fire department tugs. The L·. thcl1 towed the three vessels to a place convenient for taking out the burning cotton. The value of the cotton saved and sold was $29,000, the value of the lighter about $3,000, and the tug L. was worth about $14,000. There were no special circumstances of danger to the salvors or their tug, and the service was completed in about two hours. Held, thut $750 was a proper salvage award.
In Admiralty. Alexander cf: Ash, for libelants. Butler, Stillman cf: Hubbard and Wilhelmus Mynderse, for claim ants. BRowN,J. At about 1 P. M. on the twenty-fifth of September, 1883. a fire was discovered among bales of cotton on the lighter S. B.
Reported by R. D. & Edward Bell edict, Esgs., of the New York bar.
lyitig inth.e slip on the southerly side of pier 40, North river. The wind was westerly, blowing nearly a gale. The lighter lay near the end of the slip, inside of the steam-ship Servia. The fire had burst out ablaze around the wood-work of the mainmast, and the blaze ran up along the canvas, which hung upon the mast. The pier was well supplied with means for putting out fires, and a hose was very speedily run from the pier, across the Servia, to play upon the fire. Another hose was also got out from the Servia. The slip was full of vessels, and the superintendent, fearing danger from an increase of the fire in a high wind, called for aid to move the lighter away. The libelants' tug Lyndhurst answered the call; came along-side the lighter about five minutes after the fire broke out; attached his lines to her; pulled her out of the slip; and then took her along-side further into the river, playing upon her with a one-inch hose, which was aboard. Very soon the steam fire-engine boat Zophar Mills, belonging to the city fire department, came along-side of the Lyndhurst, threw her hose across her, and poured several heavy streams upon the burning cotton. As fire among cotton bales cannot be thoroughly extingnished without either submerging them or unloading, it became necessary to take the lighter to some vacant wharf, where the bales could be rolled off, and the fire among them completely put out. The Lyndhurst was therefore directed to go ahead, and take the boat in tow up-river till a suitable place could be found. The Lyndhurst then left the side of the proceeded ahead, and took the lighter upon a hawser, the Mills being along-side of her. About the same time, another fire-boat belonging to the city fire department (the Havemeyer) came up, and went along the other side of the lighter; and the three boats were towed by the Lyndhurst to Fifty-seventh street, where the bales were rolled off, broken open so far as necessary, and the fire extinguished. The value of the cott0n saved was $29,000; the value of the Baker, about $3,000; and the Lyndhurst was worth about $14,000. The claimants contend that a very small sum only, if anything, should be allowed for the salvage services of the Lyndhurst, on the ground that the lighter originally lay in a good place for being drenched with water to put out the fire; and that her removal was directed, not for her own safety, but for the safety of other vessels. There were no proper means, however, for extinguishing the fire where the lighter 'ay in the crowded slip. Though the fire might be subdued, it could not be put out there. There were no means there of unloading the bales; and in the high wind then prevailing, the fire might break out anew at any moment, and in remaining there she would be a source of constant danger to other vessels. As it was, one other lighter caught fire. The removal of the barge was, therefore, a matter of neceseity; both to put out her own fire and prevent its spreading. The services of the Lyndhurst were clearly salva,ge services. They were rendered promptly and efficiently. Her crew were active and energetjein removing the lighter; in playing upon her with their
own hose till the Mills came Up; and then in assisting the Mills; and, finally, in towing aU three boats to Fifty.seventh street. The Lynd. hurst, thongh scorched and blistered, can hardly be said to have been in actual danger. The whole time occupied was about two hours. Considering all the circumstances, I think $750 will be a proper sum to award as salvage; one-half to the boat, and the rest to be divided among the captain and crew in proportion to their wa.ges.
(Di8trict (Jourt, E. D. Pennsylvania. February 16, 1885.)
PILOTAGE-REFUSAL TO ACCEP'l'-ACTION BY PILOT TO RECOVER.
To justify recovery of a claim for pilotage by a pilot whom a vessel has reo fused to receive, the court must be fully satisfied that the respondent refused or neglected to take such pilot, as provided by the statute.
In Admiralty. On April 12, 1883, in the night.time, the bark Talisman, bound for Philadelphia, while off the Whistling Buoy, Delaware bay, signaled Jor a pilot, and such signal was answered by the Henry Cope, which followed her up the bay, and overtook her as she WB.S about to anchor. The pilot tendered his services, and being told by the master that he intended to wait till daylight and see if there were any tugboats about, went off and did not return. Subsequently he sued for pilotage fees. Curtis Tilton and Henry Flanders, for libelant. H. G. Ward, M. P. Henry, J. Rodman Paul, and C. M. Hough, for respondent. PER CURIAlIf. To justify recovery of the claim the court must be fully satisfied that the respondent refused, or neglected, to take a pilot, as provided by the statute. While it is true that the liability imposed by the statute for such refusal or neglect is not, technically, a penalty,-as the courts have decided,-its operation and effect, when applied, is so far in the nature of a penalty that it should not be applied except in cases of willful refusal or neglect. Did the respondent willfully-that is to say, purposely or intentionally-refuse or neglect in this instance? If he did not absolutely refuse the services tendered, he certainly neglected to avail himself of them; and I do not see, therefore, how he can escape liability. It seems quite plain that he intended, from the start, to avoid taking a pilot if he could :find a tug. He appears to have been laboring under the misapprehension that no obligation to take a pilot rested on hini after reaching the point where he anchored. What he said to the pilot is consistent with this view, and seems to be inconsistent with any other. A decree must be entered for the libelant, with costs.
THE AMSTERDUI. J
(DisfJrir.t Oourt, 8.
n. New York.
February 13, 1885.,
LIMITATION OF LIABILITy-INJUNCTION.
In proceedings to limit the liability of a vessel, an injunction may issue to restrain the prosecution of suits in a state court.
Claims for damages for personal injuries arising out of the stranding ot a vessel are within the provisions of the statute limiting liability.
In Admiralty. GUTzman cf Yeaman, for the motion. J. Joachimsen, for the Amsterdam. BROWN, J. rfhe steamer Amsterdam baving been lost by stranding, alld proceedings being thereupon taken in this court by her owners to limit their liability upon payment into COUl't of the appraised value of the vessel and her pending freight, an injunction was issued in accordance with the provisions of rule 54, restraining the prosecution of suits in the state courts. Several suitors, claiming dam. ages for personal injuries arising more or less directly out of the stranding, have asked that the injunction be dissolved on the grounds that there is no statutory authority for the injunction itself; and, secondly, because claims for such personal damages are not within the statute. Rule 54 expressly declares that the owners, on complying with the statute, shall be entitled to an injunction order. It is not for this court to overrule the iuterpretation of the statute put upon it by the supreme court, or the practice they have sanctioned. This rule will not cut off sufficient opportunity to present every legal demand. The causes of action are purely maritime. This court, as a court of admiralty, is at least as appropriate as any other for the hearing of all questions arising in such cases; and every point that can be litigated anywhere can be presented and determined here. The other question, as to whether personal injuries are within the provisions of the statute limiting liability, was carefully considered by BENEDICT, J., in the case of The Epsilon, 6 Ben. 381, and afterwards by CHOATE, J., in this court, in the case of the Seawahnaka, (In re Long Island, etc., Transp. Co. 5 FED. REP. 599, 624;) and in both eaSElS it was held, upon full consideration, that such actions are witbin the provisions of tbe act. The reasons for the conclusions there given commend themselves to my judgment, and this application must, theJ;efore, be denied.
by R. D. & .Edward Benedict, Esqs., of the New York bar.