It follows that the renewed application of Taylor & Hodgetts was not made in time, and that their subsequent ratification of Cozzens' unauthorized appearance did not relate back to the date of that appearance. This disposes of the Taylor & Hodgetts patent. The Boyd patent, reissued to the complainauts, dates from March 30, 1869. In the pressure of other business since the close of the argument in this cause, a week ago, I have not been able to examine fully the questions necessary to a decision. I shall therefore postpone my decision as to that patent until the opening of the June term of the Eastern division, at Columbus, where this cause is pending, and where the final decree will be entered. But that patent expired at the close of the twenty-ninth of March, 1886, and is no longer in force. The restraining order hereinbefore granted is removed, and no further order will now be made.
YOUNG and others v. LEHMANN and others.
(District Oourt, S. D. New York.
April 30, 1886.)
OARRmR OF GOODS BY SHIP-DELIVERY OF IRON CARGO-WHARF BREAKING DOWN-WEIGHING-CHARTER-PAR,£Y.
Though a ship as a common carrier where she selects her own wharf is answerable for its sufficiency until the lapse of a reasonable time for removal of the goods by the consignee, including the necessary custom-house weighing and gauging, the ship is not responsible for the breaking down of a wharf apparently sound and in good condition, selected by the consignee in accordance with the provisions of the charter, when the breaking down occurs through secret defects, of which the ship has no notice, and the evidence does not establish any unusual or excessive deposit of cargo for a sound Wharf.
SAME-CASE STATED-SHIP'S AGENTS, WHEN AGENTS OF
The ship S., under a charter to the respondents, was loaded with spiegel iron "to be delivered at New York, at such wharf or place as may be ordered by the consignee on arrival. .. The consignees finding it difficult to obtain a wharf for spiegel iron, requested the local ships' agents to find a wharf, which they did, The ship began to discharge there, dumping the iron in a pile, from which it was distributed as fast as it could be weighed, A part of the Wharf, 30 feet by 20, where the pile was, gave way, and a portion of the iron not distributed slid into the river, The timbers and supports of the Wharf proved to be decayed and rotten. Held, that the charter imposed upon the consignee the duty of finding a suitable wharf for the discharge, that the ship's agents in selecting the wharf in question upon the consignee's request acted as the agents of the respondents, and that the selection made was legally the charterers' selection, and not the ship's; and the evidence not showing either notice of unsoundness to the ship or an excessive or unusual accumulation of iron, lIeld, that the ship was not answerable for the loss.
In Admiralty. E. B. Convers, for libelants. Jas. K. Hill, Wing d; Shondy, and H. Putnam, for respondents. BROWN, J. On the fourth of June, 1880, about 1 :30 P.,?I., while the libelants' ship Stranton was discharging a cargo of spiegel iron
upon the dock at the foot of Noble street, Williamsburgh, a portion of the pier, about 30 feet long by 20 feet in width gave way, and 93 tOllS of spiegel iron slid into the water. Seventy tons were recovered; the other 23 were lost. The respondents, claiming that the loss was through the fault of the ship, retained from the freight the sum of $1,145.31, to recover which this libel was filed. The right to recover depends upon the question whether the ship was in fault by reason of her negligence; or, if not negligent, whether she was liable for the loss as a common carrier. The ship was chartered to the respondents to bring a cargo from England to New York, "the freight to be paid at the rate of 14 shillings per ton upon the right delivery of the cargo .. .. ... at "such wharf or place as may be ordered by the consignee on arrival." Neither the charter-party nor the bill of lading contained any other provisions material to the case. The provision in the charter that the iron should be delivered "at such wharf or place as may be ordered by the consignee on arrival" was not a mere privilege of the consignee; it also imposed a duty upon him to provide a suitable wharf. It is well known that many wharfs in this port are unfit to receive a heavy cargo like iron, and there is often more or less difficulty in obtaining a suitable place for discharge. This clause of the charter I must regard, therefore, as intended in part to relieve the ship from the burden of finding a suitable wharf, and to impose that duty upon the consignee. Before the arrival of the vessel the respondents found there was likely to be difficulty in obtaining a suitable berth for such a cargo, and they therefore requested the ship's agents in this port, who were better informed in regard to such matters, to select a wharf. Theyaccordingly selected the wharf in question. The ship went there, and gave timely notice to the respondents of her readiness to discharge. The wharf was one at which iron had been accustomed to be discharged; and in external appearance it was sound, even, and suitable for the pnrpose, though more newly repaired at the outer end. The evidence showecl that at the place where it gave way tlle main rafter and some uprights. were decayed and rotten. 'fhe planks were not broken, but when the rafter gave way the iron upon this portion of the wharf slid off into the river. The outer end of the wharf, about 30 feet in length, of tbat the planking of the wharf was of solid crib wood. was laid upon rafters snpported by piles,-the usual and necessary mode of constructing wharves in the East river. The discharge of cargo commenced at 7 o'clock on the morning of the 14th from hatches 3 and 2, which weJ;e respectively about 60 and 150 feet from the end of the pier. The United States weigher was present to weigh the iron as it came upon the dock at 7 o'clock, or a little after. Up to the time the wharf gave way about 150 tons had been landed. As fast ati it was weighed the iron was distributed on various parts of the dock, from the extreme end of the pier along a
YOUNG f7. LEHMANN.
apace of 250 feet towards the shore. None of the iron that had been weighed and distributed went into the river. As discharged from the .ubs by which it was raised from the vessel the iron was dumped along-side, forming a conical pile, from which it was taken to be weighed and distributed. It was at this point that the wharf gave way. It was only what was in the pile waiting to be weighed and distributed that went into the river. Bya statute of the United States (Rev. St. § 2882) it is unlawful to remove such goods from the pier until they are weighed by the proper officer. The duty of the ship to make a "right delivery" includes a delivery at a place where the goods can be weighed; and her liability as carrier continues until a reasonable time has elapsed for that purpose, and for the subsequent removal of the goods by the consignee. If not suitable for that purpose and for that period, the wharf is not a suitable place of delivery. Tielman v. Plock, 17 Fed. Rep. affirmed 21 Fed. Rep. 349. Except for some stipulation in the charter-party or bill of lading, the liability of the ship as a common carrier, and as insurer of the goods, for the sufficiency of the wharf selected by her, must continue during that interval. That time had not elapsed in this case when the wharf fell; and, accordingly, if the responsibility for the selection of the wharf had rested upon the ship, she must have been held answerable for this loss without regard to any question of negligence, or of overloading the part of the pier that fell. See Vose v. Allen, 3 Blatch£. 289; The City fIj Lincoln, 25 Fed. Rep. 835,839; McAndrew v. Whitlock, 52 N. Y. 40. The ship was not in this case responsible, however, for the dock selected, nor was the selection made by her. The ship's agents, in acting upon the request of the respondents to select a dock, acted in behalf of the respondents in the discharge of the duty devolving upon the latter under the terms of the charter. For that purpose the agents were the respondents' agents, and the selection of the Noble street dock was, in law, the respondents' selection. The agents did not represent the ship in that selection, and had no authority to vary the terms of the charter. The vessel, therefore, was not an insurer of the sufficiency of the wharf for any period whatever, nor responsible for its secret defects, or for any loss arising from the use of it, unless that loss arose from some unreasonable or improper use of the wharf, such as overloading or an improper distribution of cargo; in other words, for her own negligence. The wharf having been selected in effect by the respondents, and being a wharf also where cargoes of iron were accustomed to be landed, and being in external appearance sound and fit for such a cargo, the master of the ship, and the stevedore employed by him, having no notice of any secret defects, had the right to assume that it was a sound wharf, and a suitable place for the landing of the cargo in the customary manner. They were in no fanlt so long as they discharged t.he iron in the usual way, and, having no notice of any v.27F.no.4-25
defects, avoided any unusual piling that could be deemed excessive for a wharf presumptively sound. Judged by this rule, no negligence in the use of the wharf can be imputed to them. The testimony of the witnesses on the part of the ship, given before the amount of iron taken from the water was known, must, no doubt, be greatly modified. Their estimates of the weight of iron on that part of the pier which gave way turns out to be only from one-half to one-third of what it actually was. There is no question, however, but that the iron was well distributed as fast as it was weighed, and that the wfligher was in attendance all the time. As the iron was discharged faster than it was weighed, there was a gradual accumulation of iron near the scales. But the evidence does not show that the accumulation was excessive or unusual. The respondents' evidence shows that the amount was 93 tons upon a space about 20 feet by 30. The carpenter estimated that the strength of the timbers that supported this part of the wharf, if sound, would be 200 tons. There is no evidence to contradict this estimate. Aside, however, from this evidence, the custom-house weigher called by the respondents must be regarded as a disinterested witness. He testified that he had seen five times as much iron upon that wharf, and, near the conclusion of his testimony, he says: "1 do not think this wharf was loaded unusually. If sound, it would not have broken. The pile was not unusual in height or extent. This dock had a good character. It was a city wharf, and thought to be a good one." Upon this evidence 1 am not warranted in holding that the ship was in any fault in her use of the wharf, or that the pile at the scales was unusual or excessive for a eound wharf, or that the master of the ship had any reason to suppose the wharf was weak, or not able to sustain the weight that 80 sound wharf would have borne without injury. The libelant is entitled to a decree for the amount olaimed, with interest and costs.
THE SOUTH AMERICA. MAGOWAN v. ANDREWS and another. (Libel in P6r8onam.) (Libel in Rem.)
ANDRE-WS and another v. THE SOUTH AMERICA.
(District OOU1't, D. Delaware. April 24, 1886.)
CHARTER-PARTy-RULE OF CONSTRUCTION.
In the absence of fraud or misrepresentation in the inception of a charter· party, the owner and charterers must be governed by its express terms.
THE SOUTH AMERICA.
stone, a large portion of which was placed on deck, and the balance beneath the hatchways without being distributed evenl, over the bottom, and while being hauled out into the main channel of the rIver, the wind and tide being strong from the S. W., she careened. and went over on her beam ends, losing all of the deck-load, and drowning four of the crew. Held. on the proof, that the accident was caused by the careless, negligent, and unskillful loading and stowing of the stone by the charterers and their servants, and that the owner was not liable for any loss or damage on his warranty of seaworthiness. 8.
SAME-PERIL OF THE SEA.
On her last trip, after arriving at the breakwater, and while cargo, the barge sprung a leak. and was towed towards shore, sinking In 21 feet of water. Held, on the proof, that the leak was caused by the scraping of the stones down the side of the boat when unloading. whereby one of the bottom planks was started, and as the charterers had taken no precautions to protect the sides, or in any manner to guard against such a result, they must abide the consequences. In no sense can a loss arising from such a cause, and under such circumstances, be attributed to a peril of the sea, or to the unseaworthiness or faulty construction of the boat.
In Admiralty. Levi C. Bird, for libelant. J. H. Hoffecker, Jr., for respondents.
WALES, J. These are cross-libels on the same charter party, and may be considered together, the testimony taken jn the first case being applicable to both. Andrews & Locke, having a contract with the United States to deliver 30,000 tons of stone at the Delaware breakwater, on or before the thirtieth of June, 1885, chartered the barge South America from Robert A. Magowan, its sale owner, for the special purpose of carrying the stone from Wilmington, or any other place on the Delaware river, or its tributaries, to the breakwater, for the term of six months from the first day of January, 1885, at the rate of $400 per month, payable monthly; and with the reserved right to Andrews & Locke to renew the charter-party after the expiration of that term, from month to month, at the same rate, until the end of the year. Neither tonnage nor measurement is given in the charterparty, but the proof shows that the barge is 170 feet in length, 23 feet and 9 inches on top and 20 feet at bottom in breadth, and 13 feet 9 inches in depth. The hatchways are 6x8, with the exception of one, which is 14x8. The owner stipulated to keep her in good repair, and the charterers agreed to return her at the expiration of the contract "in condition as when chartered, necessary and usual wear, tear, stranding, sinking, or the perils of the sea whatever accepted," either at Wilmington, Havre de Grace, or Philadelphia, as might be designated by the owner. The charterers were also to furnish officers and crew, and all needful appliances, not expressly stipulated for, for loading and unloading, and to pay the expenses of running the barge. Andrews & Locke took possession of the barge on the first of J anuary, 1885, and after fitting her out with engine, cranes, and other apparatus for hoisting, brought her to the railroad pier on the Delaware to receive her first cargo. Here she was detained by an ice
blockade until the elevent1t of March, when sbe carried the first load of stone, consisting of about 700 tons, of which about 250 tons were placed on deck, "it being found," as alleged in the libel of Andrews & Locke, "impracticable and unsafe to load her otherwise." The charterers further say that, owing to the necessity for handling the stones so many times in loading in the hold and unloading therefrom, it was found utterly impossible to make as many trips per month as were desired, and it was not until the fifth of April that she was loaded for the second trip. On this occR.sion, as alleged, at the suggestion of and under the supervision of Magowan, the charterers put a larger load (325 tons) on her deck than before, and 428 tons in her hold. She was then taken in tow by a tug, and hauled out into the river at a distance of about 500 feet from the end of the pier, and, when the tug started to straighten the barge in the main channel, the force of the current and a strong S. W. wind caused her to careen, and all the stone and other movable property on deck were lost overboard, and four of the crew drowned. After she had been righted and repaired the barge carried three more c&.rgoes, to-wit: One on the fifteenth of May, of 750 tons, of which 250 tons were on deck; one on the twenty-eighth of May, of 750 tons, distributed in the same way; and one on the ninth of June, of 688 tons. of which about 250 tons were on deck. On this last trip, after arriving at the breakwater, and while discharging cargo, it was discovered that the barge had sprung a leak. She was immediately towed toward shore, and sank near the government pier. The agents of the companies which had insured the barge for the owner took possession of ber within a day or two after the sinking, pumped her out, and towed her to a ship-yard at Wil· mington for repairs, from which time the charterers ceased to have any actual possession of the boat. The same companies had, through their agents, temporary possession of the barge while undergoing repairs after the accident on the fifth of April. Andrews & Locke claim damages for losses sustained by reason of tbe unfitness of the barge for the special purpose for which she was chartered, and of the fraudulent representation of the owner that she would carry 600 tons of stone on deck, by which they were induced to enter into the charter.party. In consequence of delay in loading and unloading they were obliged to get an extension of their contract with the government, and to construct, at great expense, barges better adapted for their purpose. Magowan sues for the recovery of the monthly payments from April to December, inclusive, with interest on each from the time it was dne. The charter-party contains no warranty or representation of the capacity of the barge, or of the quantity or manner of carrying a cargo. She is described as "stanch, sound, and ssaworthy," and it is stipulated that the owner will provide certain chains, anchors, and mooring lines. Magowan denies having guarantied orally or in writing that the barge would carry 600 tons on her deck. He had no knowledge or experience
nn the subject. His boat was new,-had never before been used. She was well built, of the best materials, at a cost of $20,000. Locke had frequently examined her at Havre de Grace, where she was built, and OIl one occasion had brought with him an expert from Baltimore, and they had measured her inside and outside. Locke admits that he took Capt. Henry to Havre de Grace "to get his judgment in regard to what she would carry aHogether,-as to what her tonnage would be." Locke's statement that Magowan assured him the barge would carry 600 tons on deck is denied by the latter, and is uncorroborated. The fair inference from the conduct of Locke in seeking the opinion of Capt. Henry is that he did not depend on anything that was said by Magowan in relation to the capacity of the barge, and that he was not induced thereby to enter into the charterparty. There was no concealment or misrepresentation on his part. Andrews & Locke knew as much as he did about the carrying capacity of the boat, and, in the absence of any proof of fraud in the inception of the charter-party, both parties must be governed by its express terms or stipulations. The charterers contend that the careening of the barge off the railroad pier was the direct or immediate result of her faulty construction; that she was cranky, top-heavy, unfitted for carrying any cargo, and therefore unseaworthy. The testimony on this point is very voluminous, but a careful examination of the evidence has convinced me that the cause of the mishap in April was the unskillful and careless loading of the barge. The testimony of the master, Wills, and of the marine inspector, Crowell, leaves no room for doubt that had the cargo on the fifth of April been properly stowed, with two-thirds in the hold and one-third on the deck, or half and half, the accident would not have occurred. The stones weighed from one to three tons each, averaging one and a half tons. Wills says that it was difficult to get them into the hold, they were so large. He put them in the hold, stowing as best he could under the circumstan(les, and had about half the load on deck. "That was what he aimed to do." "The stones were very heavy and irregular in shape." To the question, "(9) Was or not this barge when so loaded, on this occasion, in your judgment, top.heavy?" he replies, "Yes, sir." "(10) Was or not that the reason largely, in your judgment, why she careened? Answer. Yes, sir. (11) Was she or not, in your judgment, for the purpose for which she was then being used, unseaworthy? A. If I could have got those stone in her hold she would have been all right; under the circumstances, she was not. The stone were in such shape that you could not stow them in her hold to load her." "(14) Then, how could she carry the load? A. We stacked them up on her all the same." "(18) Then, in your judgment, if you could have gotten a larger portion of her cargo in her hold and less on her deck, you think she would not have been top-heavy. A. No, sir; she would not have been top-heavy. (19) Do you think sbe could have carried
a larger cargo on deck than she did in safety? A. Yes, air; by stowing the hold properly, she could." Such is the testimony given by the master, a witness called by the chartert.rs on his direct examination. He was in charge of the boat from January to the fifth of June, and the loading was under his sole charge and direction. Capt. Crowell, a witness for the owner, a marine surveyor of 13 years' experience, inspected the barge before and after she was launched, as agent of the insurance companies. He considered her sound, stanch, and seaworthy, and fit to carry any cargo if properly stowed. He saw her at the railroad pier while lying on her beam ends, and "found the stone was placed in the hatchways, and between the hatches and in the bilges there hadn't been any stone; and a large deck-load made her top-heavy." It was his opinion "that if the barge had been properly stowed,-the cargo in it properly stowed and carried out to the sides, and between the hatches,-with the number of tons she had on deck, she would not have capsized." Capt. Hughes, the owner of several barges, says that in loading a barge the larger portion of the cargo must be placed on the bottom; "that every man handling a barge ought to know, and is supposed to know, the depth and width of her, and how to load her,-if he don't, he will get himself into trouble." The opinions of Jones and Denny, both practical men, are to the effect that, with her cargo properly distributed,-from one-half to two-thirds in the hold and the balance on deck,-the barge could safely carry 700 tons. Mr. Moore, at whose ship-yard in Wilmington the barge was fitted out in January, says: "If the charter-party don't require her to carry stone on her deck, she was perfectly seaworthy." It is unnecessary to make further extracts from the depositions. rrhe judgments or opinions of two or three of the workmen who repaired the barge after each accident are not sufficient to outweigh the testimony of the master and marine surveyor, or to contradict the admissions of Mr. Locke. The barge was all that she was war· ranted to be by the charter-party, and the cause of her upsetting in the river was due solely to the bad and negligent stowing of the cargo. Had one-half of her load on that occasion been evenly distributed over the bottom and along the sides of the boat, she would not have careened. rrhe charterers were in too much haste to loael and unload; too eager to save time in taking on and discharging cargo; and, for their own convenience and advantage, and to save expense, chose to run the risk of carrying heavy stones "stacked up" in the hatches, and on det:lk, without regard to proper stowage, or to wind and currents. The master saw the danger, but did the best he could under the circumstances. For the natural consequences of such carelessness and want of ordinary skill on the part of the charterers or their servants the owner cannot be held responsible. The origin of the leak which caused the sinking of the barge at the
government pier is not explained in such a way as to relieve the char. terers from fault. The concurrent testimony of all the witnesses proved that the boat was well built, out of the best materials. Mr. Locke says:
"It was one of those unforeseen accidents that there is hardly any account. ing for, unless it was in the improper construction of the barge.. This barge was plallked across the keelsons, the planks running across her keelsons to the outside of her side planking. Had her outside keelsons been rabbeted to have caught the plank without the running to the outside of the plank, the accident could not have happened. * * * At the point where we discharged these stone the water was 60 feet del'p. The stone, of necessity, had to be dumped from the side pf the barge. rrhere was very little, if any, careening done when the stone was thrown from the side of the vessel into the water, but the cause is in some cases in putting over a stone that was not square; Lut then, when it would strike in the water, tlH' water directed it from the vessel, and if it struck in a different way, the same thing would happen towards the vessl'I. And I believe that a stone of that kind struck so in the water; that this stone took a course under the vessel, and struck the ends of the planking in the bottom, which started the plank. Had she been otherwise constructed it could not have happened."
Capt. Kershaw, the superintendent of the ship'yard where the barge was repaired, says:
"She had the planks started on her bottom. It is customary, for that kind of wurk, to rabbet the plank in the bilge-log; then if a stone should fall it could not hit the plank. It cuuld not hit it at all in a round-bottom boat."
To question 18. "Unless this boat had been cranky and top.heavy, would a stone, in your judgment, have struck the bottom planking at all? Answer. That is a little hard to answer. A stone striking the water might shoot one way or another,-slue in or out." This is all the evidence on this point, and it is wholly unsatisfactory, inconclusive, and conjectural, so far as it relates to the faulty construction of the barge. The manner of dumping over the stones, the state of the weather and condition of the sea on the tenth of June, are not described, and we are not positively told whether the leak was caused by defective and improper construction or by an accident that could have been foreseen and avoided by ordinary precautions in discharging the cargo. One thing would appear to be certain, and that is, that it would require a vessel to be of a very strong and peculiar build to stand the scraping of stones weighing from one and a half to three tons each along her sides, when dumped from her deck into the water. No special efforts seem to have been made to protect the sides when the boat careened, or a thin stone slued in towards her bottom. The chart.erers knew that the barge was built with "wall sides," tapering towards a flat bottom which was but three feet and nine inches narrower than the top. It is obvious that a slight careening would bring the side in contact with a stone fall· ing perpendicularly from the deck, and that such careening could be caused either by a wave of the sea or by the sudden discharge of a. heavy weight from one side of the deck. In either case it was the
duty of the charterers to have exercised ordinary care Bnd skill iu throwing over these huge stones, and there is a total want of evidence to show that they did so. The unloading may have been, and probably was, conducted with the same reckless negligence and haste as were exhibited in stowing the cargo on the fifth of April. The charterers were under pressure to complete their contract with the government. They chose to run some risks, and they must abide the result. It is not contended that the sinking was caused by a peril of the sea, and there is no proof that the barge or its owners were in fault. The claim of Magowan for the monthly payments after the end of June, at which time the charter-party was to expire by its own terms unless renewed by the charterers, cannot be allowed. The charterers did not, it is true, actually deliver the possession of the boat to its owner at the end of the first six months, or give notice to him that they would not renew the charter-party; but it was not necessary for them to do either, because the owner had knowledge of the fact that the insurance agents and ship-builders had taken and obtained pos· session of her from and after the tenth of June until she was seized by the marshal at the suit of Andrews & Locke, and that she had been in the custody of that officer ever since. rfhe only question remaining is whether the charterers should pay the hire for the whole month of June. In view of the history of the case, and with my conviction of the real causes of the sinking of the boat, I think they should be held liable. A decree will therefore be entered for the owner for the sum of $1,200 with interest on the monthly payments for April, May, and June from the dates on which they were respectively due until the entry of the decree, with his costs in this suit. The libel of AndrewB & Locke is dismissed, with costs.
THE S. ANDERSON.t BAVELAND and others v. THE S. ANDERSON.
(.District Oourt, E . .D. Wisconsin. April, 1886.)
CoLLISION-CROSSING COURSES-SPECIAL CIRCUMSTANCES JUSTIFY A DEPARTURE FROM THE ORDINARY RULE-FAULTY EXECUTION OF DAMAGES.
The schooner E., while sailing with the wind nearly aft, sighted the schooner A. The latter vessel was, at the time, close-hauled on the starboard tack. The vessels were sailing on crossing courses; the red light of the E. bearing five points on the A.'s starboard bow, and the green light of the A. bearing four points on the E.'s port bow. The distance between the vessels was from oneeighth to one-fourth of a mile. A thick fog prevailed, shutting in the lights
Reported by Theodore M. Etting, Esq., of the Philadelphia bar.
THE S. ANDERSON.
of both. In this emergency the E., instead of passing astern of the A., luffed. The A.. instead of holding her course, put her helm up. In executing the maneuver the E. did not luff sufficiently to materially deaden her headway, and the A., instead of gaining distance by a slight change of helm, made an extended circuit. When each vessel attempted to regain the course upon which she had been sailing, prior to the execution of the maneuver, they met again in closer proximity, but in positions otherwise corresponding almost precisely with those in which they originally stood. Held, that the closeness of the vessels when first seen was a special circnmstance which justified a departnre from the ordjpary rule of the road, but that as both vessels were in fault in the execution of the maneuver, and as the collision resulted therefrom, the damages should be divided,
In Admiralty. M. C. Krause, for libelants. Van Dyke et Van Dyke, for claimant.
DYER, J. This is a libel in rem to recover damages for injuries to the schooner Ebenezer, caused by a collision with the schooner Anderson. The collision occured about 10: 30 P. M., June 14,1879, on Lake Michigan, about 15 miles off Port Washington. The night was dark, and there was a heavy fog which prevented a view of objects except at a short distance. The wind was a moderate breeze from the south. 'rhe Ebenezer, bound from Milwaukee to Washin'gton Harbor, was heading N. by E. t E., and, with all sails set, was sailing light directly before the wind, at a speed of about five miles an hour. The Anderson, bound from Elk Rapids to Chicago, was sailing close-' hauled on the starboard tack, laden with a cargo of pig-iron, and heading S. E. by E. Her speed was about four miles an hour. The lights of both vessels were in their proper places, and burning. The red light on the Ebenezer was first seen on the Anderson when about a quarter of a mile distant, and bearing about S. by E. t E., or about five points on her weather bow. The Anderson's green light was first. seen on the Ebenezer when the vessels were about one-eighth of a mile apart, bearing about four points on her lee bow. On the Anderson it was the master's watch, composed of three personst-the master as officer of the deck, one seaman as lookout stationed on the forecastle, and another at the wheel. On the Ebenezer it was also the master's watch, composed of two persons,-the master at the wheel and one seaman forward. The Anderson carried a master, mate, and four seamen. The Ebenezer carried a master, mate, two seamen, and a passenger. The lookout on each vessel sounded the fog-horn according to the regulations, but on neither vessel was the horn ot the other heard. The courses of the two vessels crossed, and when the crew of eacb, knew of the proximity of the other they were very close. As the Ebenezer had the wind free, and as the Anderson was close.hauled on the starboard tack, it was duty of the Ebenezer to give way. The general rule applicable to the situation required the Ebenezer tochange her helm so as to go off to the starboard side of the Ander-
Elan, passing her astern, and for the Anderson to keep her COUl'se. But as the vessels were so close when the lights of each were first seen, I am satisfied the Ebenezer could not have performed that maneuver with safety, and, in obeying the rules, "due regard must be had to all dangers of navigation, and to any sp8cial circumstances which may exist in any particular case rendering a departure from them necessary in order to avoid immediate danger." The testimony shows that when the green light of the Anderson was sighted, the vessels, as near as could then be determined, about one-eighth of a mile apart, and rapidly meeting, the master of the Ebenezer put her wheel hard down. The men below were called up, and the main sheet was hauled aft. This brought the vessel up in the wind, heading about east. At the same time the wheel of the Anderson was put up, her mizzen sheet was slacked off, and the vessel ran before the wind. This movement brought her on a northeasterly course. Thus, both vessels to keep out of the way of the other, and, as we shall presently see, the movement of each tended to baffle the other. The mate of the Ebenezer says when he arrived on deck from below he saw the stern of the Anderson as she was passing off on a north-east course before the wind. The lookout on the Anderson says that as that vessel changed ber course from S. E. by E. to N. E., or N. E. by E., he saw the broadside of tIle Ebenezer, which placed that vessel on an easterly course, or, perhaps, a little south of east. Thus the vessels were situated when, after a few moments, the master of the Anderson, undoubtedly Elupposing he had sailed far enough out of his original course to again resume that course without danger of collison, ordered the wheel of that vessel put dO,wn and the mizzen sheet hauled aft. This brought her back on her starboard tack, and in a moment or two, as she gained headway, she found the Ebenezer again directly in her path, with a collision then unavoidable, and she struck the Ebeuezer directly amidships, bow on. With these facts before it is not difficult to see what were the causes of the collision. Indeed, it is plain that both vessels were in fault. 8ince the vessels were too close to enable the Ebenezer to jibe and go astern of the Anderson when they first sighted each other, the movement by which it was songht to put her up in the wind was a proper one. As there were only two men on deck, and as those below had to be called up, there was some delay when every moment Wll-S precious in hauling the main and fore sails aft, so as to successfully bring the vessel up to the wind; and I am satisfied she was never, during the affair, brought as high up into the wind as she would head. A.fteribeing hauled round she stood on an easterly course. This conclus.ion accords with the weight of the testimony, and with the circumstances, and with the diagrams furnished by both parties. One two of the witnesses think she may have been brought round so as 'to, be heading E.S. E., but the circll'mstances strongly indicate that
she stood more to eastward. Even if her CQurse was E. S. E., she was within six points of the wind, and she would head five points to the wind. This is the testimony of the mate. After she was brought about, and her speed thereby slackened, she would soon drop off, her canvas would fill, and she would move ahead, and this is precisely what the libelant Saveland, who was on board, says she did. As she took an easterly course, therefore, she was going ahead, so that when the Anderson, after her first maneuver to avoid the collision, resumed her original course, both vessels, although at some distance from their first point of proximity, met again in positions corresponding almost precisely with those in which they originally stood to each other, and thus the collision was brought about. It is evident that when the Anderson changed her course, and went off with the wind to the north-east, and the Ebenezer also changed her course, and went to the eastward, they were going upon almost parallel courses, so that when each attempted to regain her original course there was as much danger of a collision as in the outset. This, I am convinced, is the true story of this collision, and it seems plain that it might have been averted if the Ebenezer had kept up nearer to the wind, so that her movement ahead would have been more effectually arrested, and if the Anderson, instead of making a circuit towards the north-east, had kept her course, varying from it perhaps a point or two to the northward, as the necessity of the case might require. It took time for her to change her course and go off with the wind, and then to come back on her course again, and this proved to be just enough time to bring the Ebenezer, as she went off to the eastward, directly in position where the two vessels must meet. Thus the movement of each tended to baffie the other, whereas, if the Ebenezer had gone as high up in the wind as she could be placed, her speed would have been more effectually slackened, and the Anderson, by keeping her course, being under full speed, would. have passed by. 'This, it seems clear, could have been, accomplished, even if the master of the Anderson had deemed it necessary to deflect from her course one or two points. It seems to me a plain case of fault in both vessels, and therefore one in which the damages must be divided. Decree accordingly.
and another v.
and another. 1
JUDGMENT AGAINST JOINT 'TRESPASSERS-PLAINTIFFS' RIGHT OF ELECTION-EFFECT OF PAn1EN'l' OF }laNEY IN'fO COURT-CLERK'S SATISFACTION OF RECORl;l.
In consequence of ll. collision between two vessels, owned respectively by the complainants and respondents, the latter filed a libel against the former in the admiralty. A decree for $9,572.82was obtained, and an appeal entered. Prior to the trial of the admiralty suit they also brought an action of trespass in the state courts against the owners of the ship-yard at which both vessels were lying at the time of the collision. In the latter suit they obtained a judgment for $4,476.88, which amount was paid into court, and satisfaction entered of record by the clerk. 'The respondents declined to accept and receive the amount in question, and thereupon the complainants filed a bill in equity against them, praying that the decree in admiralty be discharged and canceled by reason of the payment into the state court of the judgment obtained against the otber joint wrong-doer. Held, that when separate actions are brought for ajoint trespass, the plaintiff can recover against one or all, and if separate judgments are obtained he may make his election. Held, that as this is a privilege of which he cannot be deprived, the clerk has no power to bind him without his assent, and payment in court neither concludes him, nor deprives him of the privilege of an election.
The facts in the present controversy, as disclosed by the pleadings, are as follows: In the fall of 1879 the steamer Butte, owned by the complainants herein, Power, McGarry, Rees, McKnight, and Andrew M. Johnson, now deceased, while on the ways at Bismarck, in a shipyard owned and managed by C. S. Weavt.l' and Roger S. Munger, under the firm name of C. S. Weaver & Co., the steamer mentioned having been hauled on the ways, and at the time mentioned being in the charge of the latter firm by a contract with the owners of the same, became loosened from her fastenings, and crushed the steamer Col. McLeod, which was also at the time mentioned in the care and keeping of Weaver & Co., by virtue of a contract entered into tween Weaver & Co. and the owners of the McLeod, the respondents herein. In July, 1881, the owners of the McLeod filed their libel in admiralty against the owners of the Butte, in a case of maritime tort, charging the latter with the commission of wrongs, grievances, negligences, and omissions in the hauling, managing, and propping up of the said Butte, resulting, as alleged, in the damage to tbe said McLeod. Process in pe'rsonam issuing against Thomas C. Power, one of the owners of the McLeod, and the said Power having been duly arrested in accordance with the mandate of the said process, P. H. Kelly and Joseph Leighton, of the petitioners herein, became the sureties of the said Power on the bail-bond duly given, according to the provisions of law, in the sum of $5,000. The case was tried in the district court, and on appeal to the circuit court judgment was entered in favor of libelants for the sum of $9,572.82, and an appeal was taken by the respondents to the supreme court of the United
Rt'port!'d by Theodore 1\1. Etting, Esq., of the Philadelphia bar.