I am unable to perceive in this anything more than ordinary towage service, rendered at the request of the John Markee. The brig being without available sails or anchors, with the wreckage of her spars dragging at her side, would certainly have been in imminent danger of drifting on the rocks upon Light-house Island, if she had been alone, and had not already secured all the assistance necessary for her safety. It is true the hawser of the John Markee had proved inadequate to tow her in the rough sea against a strong ebb-tide. Hut it was of sufficient strength to hold her stationary, or to tow her with the current, or across it in either direction, to a position of safety. The weather had cleared, and the wind, though strong, had ceased to be in the least degree dangerous. The tug-boat York, the consort of the John Markee, was coming down the harbor to help her. The hawser of the John Ma.rkee parted at the hawse-hole, and was still of sufficient length for use. The only disputed fact in the case was with reference to the distance of the brig from the rocks at the time the William H. Clark took hold. Of course the estimates of the witnesses varied widely, some of them placing her on the northerly side of the channel, close to Light-house Island, and others on the opposite side, near Nash's Rocks. The keeper of the light-house, a disinterested and intelligent witness, who saw the occurrence, testified that the William H. Clark took hold about. the middle of the channel. This would make the distance on the oblique course of the . brig's drift considerably more than an eighth of a mile. I take his estimate as the correct one. This would give the John Markee ample time to come to the resoue. It also appeared that the master of the William H. Clark claimed at the time only the usual towage charge allowed by the custom of the port to a tug when called upon to assist another in towing a vessel. It shonld also be noted that it is not pretended that the William H. Clark was exposed to any extraordinary peril, or to any risk but such as was incident to her every-day employment. My conclusion is that the servic6s of the William H. Clark were towage, and not salvage, services. It appeared that the master of the Raven offered to pay $80 for the services rendered, which was declined by the agent of the William H. Clark. The compensation offered was sufficient, and should have been accepted. A decree may be entered for that amount for the benefit of the owners of the tug, but the claimants of the brig are to recover their costs. Ordered accordingly.
No. 6. 1 No.6.
BIRCHALL 'V. BARGE
(District Oo'Urt, S. D. New York.
WHARFAGE-HEI,L GATE-Tow IN SECTIONS-NEW YORK STATE STATUTBLAWS OF 1882, CR. 410, 798-"USES OR MAKES FAST TO WRARF"-LIARILTTY OF BOTIC TUG AND Tow-DEMAND-DOUBLE RATES. A law of New York, passed in 1882, (chapter 410, § 798,) provides that wharfage may be collected "from every vessel that uses or makes fast to any pier, wharf, or bulk-head." within the city of New York. In 1883 libelant gave general notice that Wharfage would be required. Afterwards, a tug having agreed to tow barge No.6 for a lump sum, and having taken her with many others in tow, left her with others at libelant's wharf, between One Hundred and Thirty-ninth and One Hundred and Fortieth streets, East river, and the libelant claims wharfage. The barge-owner claimed that the tug-boat should pay the wharfage. since it was for the latter's convenience that the barge was left at the bulk-head. It has long been the practice for taking large tows through Hell Gate to divide them into sections, and, takmg one section at a time through the Gate, to leave the rest at the libelant's wharf till they are successively taken through. He;d that, under such circumstances, the tug "uses" the wharf, in the sense of the statute, and is liable; but that the barge is "made fast" to it; and that wharfage may therefore be collected of either. Demand not being clearly proved, only single wharfage can be collected. 2
In Admiralty. T. O. et G. N. Oampbell, for libelant. Biddle et WM'd, for respondent.
BROWN, J. The libelant has been for many years owner and proprietor of the bulk-head between One Hundred and Thirty-ninth and One Hundred and Fortieth streets, on the East river. This libel is filed to establish his right to collect wharfage from barges and canalboats that are left at his wharf, and made fast there by tugs, preparatory to towing them through Hell Gate. It is not deemed prudent for tugs to attempt to take more than three or four boats at a time through Hell Gate; but as many more than four are often taken in tow from the lower part of the city bound east into the Sound, it is necessary in such cases to take the fleet through Hell Gate by sections; and tugs have, for a long time, been in the habit of leaving a part of the fleet at Birchall's wharf, while they are taking the rest of the fleet by sections through Hell Gate. By the state statute of July 1, 1882, relating to tbe city of New York, (chapter 410, § 798,) it is provided that "it shall be lawful to charge and receive wharfage at the following rates from every vessel that nses or makes fast to any pier, wharf, or bulk-head within said city," etc., "for every barge, 50 cents per day j · · .. every vessel to be liable for double
by Edward G. Benedict, Esq., of the New York bar. Respecting wharfage see note of Orlando F. Bump to The De Bmet, 10 Fed. Rep. 489, and Onachita & Mississippi River Packet Co. v. Aiken, 16 Fed. Rep. 890, and note, 8947
wharfage if she leaves without first paying the wharfage due, after being demanded of the owner or consignee or person in charge of the vessel." Prior to the passage of the above statute no claim for wharfage had ever been made by the libelant. In 1883 the libelant gave notice that thereafter he should demand and claim the wharfage allowed by the above statute. There is no doubt that he is entitled to wharfage either from the tug, or from the boats that are fastened to the wharf. As between the tug and the tow each claims that the other shall pay it. The boats in tow have no control of their own navigation. The how many person in charge of each has nothing to do in shall be taken in tow, or whether they shall be divided up in going through Hell Gate; or, if divided, where any shall be left, or how secured, or how long they shall remain, or when they shall be taken away. 'l'he whole business of making up the tow, the numbers taken, and the mode of going through Hell Gate, is solely in charge of the tug, and the tow is legally in the charge and possession of the tug. In the usual course of business each boat is taken at a fixed sum for the trip. Part of the boats may be left at the wharf until the others have gone through, while others may go through directly; and in re· spect to the latter no claim for wharfage can accrue. When towage is engaged no reference is made to any wharfage, and it is not known whether any claim for wharfage in respect to any particular boat will arise. The use of the wharf is for the convenience of the tug, and to enable her to take a larger fleet along with her on each side of Hell Gate than she can take through that passage. The tug hav. ing the tow in charge, and being answerable for its safety, when she leaves a part of the tow at a wharf for her convenience, in my opinion, "makes use" of the wharf in the sense of the statute. It is by the VOluntary act of the tug, and not by any voluntary act of the tow, that the tow is made fast to the wharf. On the other hand, it is equally clear that the tow is "made fast" to the wharf, and has the use of it for the time being. The statute declares that every vessel that either "uses or makes fast" shall be liable to pay wharfage. The wharfinger, therefore, haE! a right under the statute to look either to the tng or to the tow for his statutory compensation. He is not bound to look to the alone. From the circumstances stated, it would seem that the tug is bound to indemnify the owner of the tow for the charges to which the tug, for her own convenience, has sub· jected a portion of the boats; but as the representatives of the tug are not before me, this qnestion is not pasl:led upon. There is some doubt whether the explicit demand of wharfage was made in this instance from the person in charge of No.6. The bills proved have the names of the towing lines upon them, and the proof leaves the question of demand doubtful. Judgment is therefore ordered for the libelant for the wharfage claimed at single rate;, only, with
THE FAVORITE. t PlllTERS,
Master, etc., v. HELLER and others.
(Diatrict Oourt, E. D. Penm!Jltoania. March 26, 1886.)
DE:utmRAGE-DELAY IN UNLOADING.
Damages can be recovered for delay in unloading upon vrsscls, where the cargo could have been discharged more quickly upon railroad cars.
In Admiralty. Pugh it Flanders, for libelant. Furth ff Singer, for respondents. BUTLER, J. The libelant must be allowed two days. The detention was unnecessary. The unloading might have been completed without interruption, if the respondent had been willing to receive it on cars, which were at hand. He desired, however, to have a part of it on vessels, and delayed the work on this account. Having sold the cargo, he desired to deliver it to the several purchasers immediately from the ship. Fully two days' delay was caused in waiting for vessels, and in changing the unloading tackle back and forth from vessels to cars. For this delay the libelwt must be compensated. A fair measure of computation is found in the charter-party. I do not find anything to sustain the allegation that the crew were inefficient, and the unloading delayed on this account. A decree will be entered for libelant.
(District Oowrt, E. D. New York. July 24, 1885.)
BALE-STOPPAGE IN TRANSITU-AssERTION OF VENDEE'S INSOLVENcy-NoN-DBLIVERY OF CARGo-BILL OF LADING-VENDEE'S RIGHT OF ACTION.
A cargo of clay was shipped by H. on board the schooner E. H. Pray, under a bill of lading providing for its delivery to P. Before the delivery of the clay H. appeared, and, asserting the insolvency of the libelant, and the non-payment of the price, ordered the master not to deliver the clay to P., which direction the master obeyed. P. thereupon brought suit on the bill of lading against the vessel to recover damages for non-delivery of cargo. lIeld. that the assertion of the fact of insolvency by the vendor, made in good faith and believed by the master, coupled with the fact that the goods had not been paid for or the price secured, aud the other fact that the stoppage was during the continuance of the tranaitus, justified the master in delivering the cargC) to the vendor, and gave the vendee no right of action against the vessel.a
by C. B. Taylor, Esq., of the Philadelphia bar. Reported by R. D. & WyIlys Benedict, Esqs., of the New York bar. s note at end of case.