Goodrich, Deady (/; Platt, for libelant, Silas T. Havens, Bf'nedici, Taft If Benedict, for claimant.
BENEDICT, J. Upon all the testimony I am·of the opinion that the cause of the lighter's taking in water as she did was not a leak in the .lighter, nor an overload, but the speed at which she was towed through the swells of steam-boats' waves in the North river. I am also of the opinion that it was negligence in the tug to tow the lighter through these swells at a rate of speed sufficient to cause her to take water as she did. The result of this negligence was that the water thrown into the lighter rendered her unseaworthy, and put her in danger of sinking, and the subsequent capsizing of the lighter. and loss of much of her cargo, was the immediate consequence of this negligence. The liability of the tug follows. There is in the case testimony from the tug that, after the danger to the lighter became apparent, the tug proposed to take her into the nearest dock on the New York shore. and there is testimonv warranthad been pursued "the loss in ing the conclusion that if that question would have been avoided. On the other hand, there is testimony from the master of the lighter that he proposed to the tug to take the lighter to the New York docks, and that the proposition was not acceded to by the master of the tug. But the testimony of the tug-men on this point, if taken as true, does not assist the tug. If it be assumed that the plight to which the lighter was reduced by the negligence of the tug cast upon the tug a duty to put the lighter in a place of safety, the tug would not be relieved from that duty by an from the master of the lighter. If, on the other hand, the duty of deciding upon the proper course to be pursued to secure the safety of the lighter after she had taken the water was upon the master of the lighter, an error of judgment committed by him in arriving at the decision to attempt to make the Jersey shore-excllsable as it was under the circumstances-would not relieve the tug, for it was the tug's negligence that brought upon the captain of the lighter the necessity of deciding whether to go to New York or New Jersey. An error of judgment committed by the master of the lighter under Buch circumstances can have no effect to relieve the, tug from liability for a loss which was an immediate consequence of the act of negligence found to have been committed by her.
(Di8fJrlct(Jourt, E. D. New York.
December 11'1, 1885.)
to have occurred from the odor of petroleum, while on the bark Venner, had not been proved, and that the action must therefore fail.
2. SAME-DELIVERY OF CARGO-SHORTAGE-BILL OF LAD1NG-"WEIGHT AND CONTENTS
There can be no recovery for short delivery where the bill of lading says "weight and contents unknown," and no testimony is offered to show how much cargo was shipped, while the testimony from the ship is that all taken on board was delivered. _
In Admiralty. Scudder it Garter, for libelants, D. V. Arguimbau and others. Wilcox, Adams etMacklin, for claimant.
BENEDICT, J. If the canary-seed while on board the vessel was damaged by petroleum, the liability of the vessel for such damage cannot be disputed, whether the damage arose from actual contact with petroleum, or from the fumes of petroleum caused by the heat of the hold. The decisive question of the case is whether the seed was so damaged while on board the vessel. Upon this question of fact the testimony is conflicting, and I am unable to say that the existence of such damage to this seed at the time of its discharge from the ship has been proved. Furthermore, there is uncontradicted testimony that no odor of petroleum could be detected on the seed claimed to have been damaged, when carefully examined some time subse· quent to its discharge; that a sample taken from this part of the seed was actually fed to a canary, and eaten by the bird without ob. jection or injury; and a sample is produced in court in which no odor of petroleum is discovered. This testimony seems to prove that, if the seed had been tainted with the odor of petroleum while on the vessel, that odor disappeared in time, and left the seed as valuable as before. Such being the fact, the action must fail because no damage is proved. In this connection it is to be remarked that there is no evidence that the seed was sold as damaged, and if the sample produced in court is a fair sample, as is testified, no reason is seen for selling it as damaged. There is also a claim for short delivery; but the bill of lading says: "Weight and contents unknown." No testimony is offered to show how much the bags contained when shipped, and that they were all full, and the testimony from the ship is that all taken on board was delivered.
Reported by R. D. & Wyllys Benedict, Esqs., of the New York bar.
THE NELLIE BLOOMFIELD. t
SEAMEN - LmN FOR WAGES CLAIMANTS. .
n. NI'AJ) Jer8ell.
STALE CL.A.IM -
April 28, 1886.)
PRIORITY OIl' BONA FIDE LmN
In the distribution of the proceeds of a sale, the libelant. a former mariner. claimed. as against a material-man. wages for three years. From the libelant's own testimony it appeared that over two years had elapsed before the institution of the present proceedings; that he had been in the neighborhood of the vessel and her owner during all the time; and that no excuse whatever was given for this long delay. It further appeared that during all this time he had not heretofore made an'y attempt to collect the debt. Held, that public policy requires that such huns should not be enforced. to the detriment of other bona fide lienors. after such a lapse of time. and without the assignment of any reason for their having lain so long dormant.
In Admiralty. Goodrwh, Deady cf; Platt, for Cahill and others. Bristow, Peet cf; Opdyke, for New York Emery Company.
NIXON, J. The commissioner has found due to the libelants as follows: To Thomas W. White, for wages, $19.50; to Peter Karney, for wages, $2.76; to James Cahill, for wages. $37.87; to Matthew Keefe, for wages,$17.S8; to Thomas Dunn, for wages,$16.12; to John Cahill, for wages, $509.24. The New York Emery Company, a subsequent libelant, excepts to the allowance of anything to John Cahill, upon the ground that his claim has become stale, and must be deemed as abandoned by lapse of time. His statement, under oath, is that be went on board of the Bloomfield in March, 1880, and left ner in December, 1883, there being due to him for wages at the time of leaving $450. The commissioner has found due this sum, with interest to the date of his report. The libelant gives no excuse for his long delay in enforcing his lien. The testimony shows that he has been in the neighborhood of the vessel and her owner during all the time, and has made no attempt to collect the debt. Public policy requires that such liens should not be enforced to the detriment of other bonn fide lienors, after such a lapse of time. and without the assignment of any reason why they should have lain dorment so long. This exception is therefore sustained. Let a decree be entered in favor of the other libelants forthe sums found due to them respectively, and let the claim of the New York Emery Company be referred to a commissioner to ascertain and report the facts to the court.
Reported by Theodore M. Etting, Esq., oC the Philadelphia bar.
THE SOUTH CAMBRIA.
THE SOUTH CAMBRIA.. ROWLAND
(DiafJrict Ootvrt, D. Delaware.
May 14, 1886.)
The provisions of a state law, regulating pilots and pilotage, which are In direct and manifest collision with the act of congress of March 2, 1887, con· cerning pilots, held, to be inoperative and void. 2. SAME-CONSTRUCTION OF THE ACT OF CONGRESS OF MARCH 2, 1887. A law of the state of Delaware provides that the first duly-licensed pilot who may offer himself to any inward bound vessel in the Delaware bay, requiring a pilot, shall take charge of her. and that if his services are refused he may sue the master, owner. or consignee thereof for full pilotage. The act of congress of March 2, 1837. (581. Hi3,) enacts "that it shall and may be lawful for the master or commander of any vessel coming into or going out of any port situate upon waters which are the boundary between two states, to employ any pilot duly licensed or authorized by the laws of either of the states bounded on the said waters, to pilot said vessel to or from said port, any law, usage, or custom to the contrary notwithstanding." Beld, that, although the Delaware bay and river do not constitute a boundary between the states of Delaware and Pennsylvania, these states, being coterminous, and bordering on the same navigable waters. come within the spirit and meaning of the act of congress, which was intended to neutralize the effect of adverse and contlicting laws of adjoining states which had exercised, or might assume, an exclusive regulation of pilotage on navigable waters which are the common, though not the separating. boundary of such states. Following TIUl Olymene, 9 Fed. Rep. 164; S. C. 12 Fed. Rep. 346; The Ullock, 19 Fed. Rep. 211: TheAbercorn, 26 Fed. Rep. 877.
PILOTAGE-VALIDITY OF STATE LAWS.
In Admiralty. Flanders et Pugh and Levi O. Bird, for libelant. Morton B. Henry and Benj. Nields, for respondent.
WALES, J. This is a libel for pilotage service. On the twentysecond of October, 1885, the British steam-ship South Cambria, bound from St. Jago de Cuba to Philadelphia, when about 20 miles W. by N. from Cape Henlopen, signaled for a pilot. In answer to the signal the libelant, a regularly licensed pilot under the laws of the state of Delaware, and duly authorized to pilot vessels of that class, was put on board the steam-ship, and tendered his services to pilot her to Philadelphia, he being the first pilot to offer himself for that purpose. The master of the South Cambria refused libelant's offer, under instructions previously given by the agent of the owners not to employ a Delaware pilot, and subsequently, on the same day, accepted the services of E. L. Davis, a duly-licensed pilot nnder the laws of the state of Pennsylvania, who navigated the vessel toPhiladelphia. The master selected the Pennsylvania pilot in order to avail himself of the lower rate of charges for pilotage, the difference in this instance being $26.06. 'fhe libelant sues for $115.50, the amount he would have been entitled to had his services been accepted and performed, by virtue of sections 5 and 6 of the act of the legis-