M., and relieved the captain; that "he pulled up the bay for a while, until opposite Red Hook," when finding the tide too strong, and that he was making no headway, he sent word to the captain, and was told to go in to the sea fence; that he did so, and reached it about an hour and a half afterwards, between 4 and 5 o'clock A. M. From the Robbins Reef buoy to abreast of the Hook is but two nautical miles, and the tow was making at least two knots through the water. If, therefore, the captain is correct in supposing that he rounded Robbins Reef light, as he says he did, between 10 and 11 P. M., and that he had the benefit of the still continuing slack flood current, as he testified he did have after passing the buoy, Bed Hook would have been reached before 12 o'clock, instead of at 3, as the pilot states. There is no accounting for this three hours' interval of time, or for the difference between the pilot's testimony and the captain's testimony as to this interval. If the captain had already got near Govemor's island when he met the downward current of the ebb·tide, and before the change of the watch at 1 o'clock, the pilot could not after he went on duty have "pulled up awhile" before reaching Bed Hook at 3. The pilot's testimony in this respect is in approximate accord with what the libelant's wife testifies as to the time of passing Robbins Reef light; and if that time be within two hours of correct, the current could not have been running up in the bay at the time when the tow rounded the buoy at Robbins reef, but must have been strong ebb, since it was from three to four hours after high water. Upon this discrepancy in the testimony of the libelant's chief witnesses as to the navigation, I am not warranted in disregarding the direct and positive testimony of the libelant's wife. As. no charge was made at the time against the navigation of the boat, there was nothing that tended to fix the recollection of the captain and of the lookout in his watch with regard to any particular occurrences of that trip prior to putting into Red Hook. I must consider, therefore, that, without any intentional misrepresentation, they have testified, not from any precise recollection about rounding the buoy on this trip, but from the picture in their minds of their usual practice, or what they usually do; there being no recollection of any deviation from it. It was not unusual to go inside the buoy to avoid a strong ebb in the bay. The scratch may have come from that attempt; or it may be that in going too near the northerly shoals on coming out of the Kills on a strong ebb the libelant's boat touched some slight obstruction on the bottom, while the tug was pulling off strong to the eastward and south ward of the buoy,-a position that would equally accord with the wife's testimony. A rub upon a rock sufficient to make this scratch and cut upon the bottom of the libelant's boat would not be perceived by the tug ona hawser 100 yards away; and, as I have said, it was not mentioned by the wife until a month after· wards. The pilot, on the other hand, who was obliged to put in to Red Hook, would be likely to remember the particulars of putting in
there, and what led to it; and his testimony should be regarded as coming from a more definite memory in reference to it, and as more likely to be correct; and it is consistent with that of the libelant's wife. Had the latter mentioned at or about that time, either to her husband or to others, what she now testifies that she noticed as to the jar at Robbins Reef ligRt, no doubt would have been entertained concerning the truth of her testimony, or the cause of the accident. That she kept silence about it until the mark was discovered a month afterwards has cast great doubt upon her testimony. But this is not under the circumstances, to cause its rejection, in the absence of any other explanation of the injury. The jar as felt was probably far less marked and alarming than it now appears in her testimony. As soon as it was over, no importance probably was attached tb it. She was of a nervous and apprehensive temper. She lived upon the boat, and often had experiences that excited momentary alarm, when nothing ill resulted. It was not until the mark and cut were seen in the bottom of the boat a month afterwards that she connected them with the leak as the cause. This view will furnish some explanation, and it is the only rational explanation that occurs to me, for her failure to mention the circumstance at the time. Her account does furnish an explanation of the leak; it harmonizes with the pilot's testimony. Without this we have no explanation of the injury at all. The tug offers no explanation except the mere hypothesis of some entirely unknown obstruction in some other part of the trip. This is too general and speculative to acquit the tug on a trip over a safe and secure route. In the absence of any other explanation, therefore, I feel constrained to hold the tug answerable; not, however, without considerable hesitation and embarrassment, nor without a full recognition of the difficulties of the case, which has been ably 'presented and argued by the respondent's counsel. Decree for the libelant, with a reference to compute the damages if not agreed upon.
and others v. THE
(District Court, S. D. New York. May 4, 1886.)
SALVAGE-FmE IN OIL-WORKS-TOWAGE-LIGHTERS.
A fire broke out in some oil-works on Bushwick creek, near the East river, within a shed inclosed by a brick wall immediately adjacent to the creek. Several lighters and other boats were moored near the shed. The standing orders of the company were to clear the creek of boats in case of any fire Oil the premises. There were other combustible materials in different parts ot the premises near the shed. Soon after the fire broke out the libelants' tug, of light draught, came to the mouth of the creek, and was immediately
engaged to tow out three lighters partly loaded with naphtha, which were above the fire. The tug did so, devoting about two hours to the enthe service. The lighters, with their cargo, were worth about $4,500. Held, that the service was not a mere ordinary towage service, but one rendered with reference to the apprehension of danger of fire, and was therefore a salvage service, though of no high degree of merit; and $200 compensation was awarded, one-half to the tug, the other half to the captain and crew·
In Admiralty. lIylnnd et Zabriskie, for libelants. Knox et Woodwa1'd, for claimants. BROWN, J. During the forenoon of the fourtoenth of November, 1884, a fire broke out on the premises of the Pratt Manufacturing Company's Oil-works, in a shed on the south side of Bnshwick creek. The shed was about 100 feet long by 45 feet deep; inclosed by a b-rick fire wall about 20 feet high. When the fire broke out, the lignter Oregon lay outside of a canal-boat which was moored along-side of the shed, and within three feet of it. The canal-boat and lighter were immediately removed somewhat further up the creek; the lighter about seventy-five feet above the shed, and the canal-boat some two or three hundred feet further up. The premises in the vicinity of the shed were employed in the oil busineRs, and there were various tanks in different parts of the grounds not far distant. The general orders of the Standard Oil Company, that control the whole premises, were that, whenever a fire occurred along the creek, the creek should be cleared of boats. The libelants' boat Alpha was towing a schooner down Newtown creek, when, observing the fire, the pilot dropped the schooner at the mouth of the creek, and went down to Bushwick creek, not far below. When he arrived there, he was hailed by the assistant foreman of the premises to come into the creek and tow out the lighters. The Alpha accordingly went into the cteek, and succeeded in towing out the three lighters in a line upon a hawser. 'rhe Oregon had naphtha aboard; the other two lighters, refined oil. For this service a salvage award is claimed. Two questions are presented: First, whether the service is entitled to salvage compensation; and, if so, the amount. The rescue of property in danger of destruction by fire is a familiar ground of salvage award, where the essential elements of a salvage service exist. The Connemara, 108 U. S. 353; S. C. 2 Sup. Ct. Rep. 754. Such cases have frequently arisen in this court. The Tampico, 16 Fed. Rep. 491; The Baker, 23 Fed. Rep. 109; S. C. 25 Fed. Rep. 771. As respects the degree of danger, it is not necessary that there be a certaiuty of loss unless the service were rendered. It is s'lfficient that there is a reasonable apprehension of danger, and that the service is rendered in reference to that apprehension of danger, and not in the ordinary course of business. The Bailces, 1 Hagg.247; The Jos. C. Griggs, 1 BeIl. 81; The Plymouth Ruck, 9 Fed. Rep. 413, 416.
There can be no doubt that the Alpha was not employed in the ordinary course of business, or that the service was rendered as a rescue from danger of fire. The superintendent, indeed, testifies that he did not regard the Oregon as in any position of danger, but altogether safe; that she might have been towed further up the creek, if necessary; and that the request to tow her out was on account. of the standing orders to clear the creek, in case of fire. But I cannot doubt that this standing order was promulgated, in part, at least, on account of the danger that any vessels in the creek might be in, as well as to furnish additional room for the work of fire-boats that might be wanted to protect from loss other parts of the premises, A fire in one place might spread to others. The combustible materials all about the grounds were such as to favor the spread of fire; and it could never be certain till the fire was checked how far it might be communicated. The service desired of the Alpha in this case was sought under the pressure of this reasonable necessity, and because the respondent's own boat, the Niagara, which had been expected. did not make her appearance; and the removal of the boats from the creek could not be properly delayed longer under the standing orders mentioned. The fire was already under full headway. Of the many other tugs in the vicinity none but the Alpha was of sufficiently light draught to go upon the opposite side of the creek, somewhat away from the fire, and astern of the fire-boats, which took up a considerable portion of the creek. Dnder these circumstances, the service was of a salvage character, and not a mere ordinary towing service. The Oregon undoubtedly was not moved as far away from the fire as she might have been moved; but that, no doubt, was because it was expected that she would be taken out of the creek very speedily. There is much contradiction between the witnesses as to the amount of the Alpha's exposure to the fire. On the libelant's part the testimony is that her deck hands were considerably employed in throwing water upon her house: that the glass of her sky-lights was broken by the heat; and that the neck, face, and hands of two of the persons thus engaged were burned and blistered; and that the paint of the boat was also injured,-her position being for some time opposite to the fire. Two disinterested witnesses who stood on the opposite bank testified to the same effect. Several of the respondents' witnesses say that the Alpha lay lower down in the creek, astern of the two fire-boats, which lay partly athwart the creek; and that the fire-boats lay between the Alpha and the fire. These discrepancies would, in the main, be reconciled if the Alpha, after first going opposite to the fire, and throwing out her lines, had then dropped back astern of the fire-boats; and such may have been the fact,-the libelant's witnesses testifying as to the former position, and the respondents as to the latter. . The services in this case, however, are not of any high degree of merit, considered as salvage services. Though the Oregon had naph.
tha aboard, she was at such a distance from the fire, and the service was so soon after the fire broke out in the shed within the walls, that I cannot regard the service as one involving much personal danger, although that element is not wholly out of the case. In other respects the service was not one of any special difficulty, or labor, or risk. The damage to the Alpha was slight. Her painting was not repaired until a year afterwards, and then at a slight cost, and this libel was not filed until some five months after the service. The value of the three lighters towed out, WIth their cargoes, was about $4,500. I think $200 will be a just and fair compensation, (The Baker,supraj The O. M. Hitchcock, 25 Fed. Rep. 777; The Key West, 11 Fed. Rep. 911; The M. Vandercook, 24 :Fed. Rep. 472; The Rialto, 15 Fed. Rep. 124; The Grid, 21 Fed. Rep. 423; The Mabel, 22 Fed. Rep. 543; The Florida, Id. 617; The Indiana, ld. 925;) one half to be paid to the tug, the other half to the captain and crew, in proportion to their wages.
ONDERDONK V. SMITH
(Gircuit Gourt, 8. D. New York. June 28. 1886.)
1. NEGLIGENOE-OOCUPIER OF PIER-How CHARGED GENERALLY. A party who enjoys the exclusive privilege from the owner of a pier to use such pier in his business. though under no obligation 0 the owner in regard to repairs, assumes the duty to those invited there, to do business, not to expose them to peril by reason of defects in the condition of the premises known to him, or which, by reasonable diligence, would be known. 2. SAME-OBLIGATION TOWARDS INTRUDERS. One who occupies, and has the exclusive use of, a pier for loading his coal, is not respo'lsible for damage to a barge caused by a defect in such pier, when the barge. having received its load some time before, had no business at the pier at the time the damage occurred, and was injured by a defect that did not exist during business hours. '
In Admiralty. Oharles W. Brooke, Geo. Bethune Adams, and Franklin A. Wilcox, for respondents and appellants. J. A.. Hyland, for libelant and appellee.
WALLACE, J. The district court awarded damages to the libelant for the inj uries to the scow barge and her cargo, occasioned by the sinking of the barge in consequence of being punctured by a spile which projected from the bottom of the slip,· and directly under the place where the barge had taken her cargo. The defendants have !lPpealad. Although the appellants were not the owners or lessees of the pier, and were under no obligation, as between themselves and the owners, to make repairs, or remove any obstruction in the slip, inasmuch
as they enjoyed the exclusive privilege from the owners of using the pier and the adjoining slip for shipping their coal, and had to that extent the control and occupation of the premises, they assumed the duty towards those whom they invited there for the transaction of business not to expose them to hazard from any defects in the condition of the premises known to themselves, or which, by the use of reasonable diligence, should have been known. Their superintendent knew, and they were therefore chargeable with notice, of the existence of the spile, because, about three weeks before the occasion in question, another boat, the Getman, while lying at the same place, was struck by the same spile. On that occasion the Getman had taken on her cargo in the morning, the loading having been completed by 11 o'clock, but no tug came to take bel' away; and she remained there until half past 2 o'clock P. M., the tide in the mean time going down until it was somewhat more than half ebb, when she struck this spile. Her captain succeeded in getting her off without serious injury, but the attention of the appellants' superintendent was called to the occurrence. If the scow had heen injured by this obstruction while being loaded at the pier, or while going to it or away from it in the prosecution of the business which called her there, the case of the libelant would be clear. But the evidence is that her loadmg was completed at half past 4 o'clock in the afternoon, when the water was a little below high tide, and the accident happened about half past 9 in the evening, when the tide was low ebb; and if the scow had been removed from the place where she was loaded within a reasonable time after the loading was completed, she would not have been injured. When the tide went out, the scow settled down upon the spile, which projected about a foot from the bottom of the slip, .and sufficiently far to puncture the boat at that condition of the water. The place was entirely safe, nnder ordinary. circumstances, notwithstanding the existence of the spile. The captain of the Getman testifies that he had loaded his boat there 40 times without discovering the spile, and, although boats were being constantly loaded there, there is no evidence that any of these had ever encountered the spile except the Getman. It was only when the tide was at half ebb, or when, owing to some other cause, the water was low in the slip, that the place was not safe. According to the usual course of business, the master of the scow should have hauled her away from the place where she was being loaded, when the cargo was fully delivered, to make way for other boats. Indeed, he had been expressly directed by the defendants' superintendent to move out of the berth when loaded, because another boat was expected to come in that afternoon. The master of the scow subsequently ascertained from the master of the other boat that the latter did not intend to begin loading that night, and assuming, doubtless, that there was no necessity for moving his boat away, as
the other boat WllS not to be hauled in, took the responsibility of permitting his boat to remain at the pier. He testifies that he asked permission of defendants' superintendent to allow his boat to remain there over night, and that the superintendent consented; but in this he is contradicted by the superintendent, and the latter's testimony is measurably corroborated by other testimony. 'fhe only liability of the defendants grows out of their duty arising from their implied invitation toothers to use the pier for the transaction of the business to which the pier was appropriated. Their invitation was spent when the boat's business at the pier was finished, and a reasonable time bad elapsed to enable her to move away. After that she remained there at her own risk. It is not necessary to hold that she was there against the permission of the defendants, and therefore a willful trespasser; but, assuming that she was there without having obtained the permission of the defendant's superintendent, the defendants were not under any obligation to concern themselves for her protection. Under such circumstances, the law imposed no duty upon the defendants except the general duty which every man owes to others to do them no intentional wrong or injury. The case is quite analogous to that of Morgan v. Penns.lJlvania R. Co., 19 Blatchf. 239, S. C. 7 Fed. Rep. 78, (decided in this court.) There the plaintiff, while crossing the grounds of the defendant, fell into an unprotected pit, and was injured. He had often crossed there before, and others had done so. It was held that there was no invitation, and therefore that the defendant was not liable for the injury. Owners of private property are not responsible for injuries caused by leaving a dangerous place unguarded, when the person injured was not on the premises by permission, or on·business, or other lawful occasion, and had no right to be there. One who thus uses another's premises cannot complain if he encounters unexpected perils. H()unsell v. Smyth, 7 C. B. (N. S.) 731; Bolch v. Smith, 7 Hurl. & N. 736; Gautret v. Egerton, L. R. 2 C. P. 371; Nicholson v. Erie By. CO.,4:1 N. Y. 525; Slttton v. New York Cent. R. Co., 66 N. Y. 243; Johnson v. Boston rf M. R. R., 125 Mass. 75; Hargreaves v. Deacon, 2.5 Mich. 1; Pittsburgh, etc., Ry. Co. v. Bingham, 29 Ohio St. 364; Parkerv. Portland Pub. Co., 69 Me. 173. The libel is dismissed, with costs of the district court and of this court.
HOLLOWAY V. LANey.
(District Oourt, n. Massachusetts. June 16, 1886.)
DEMURRAGE-FAILURE TO OBEY INSTRUCTIONS OF CONSIGNEE-DELAY ARISING THEREFROM.
Libelant's schooner was ordered by the respondent, to whom it was consigned to proceed to a certain wharf in. a certain manner. The libelant to reach the wharf in another manner, and while so engaged the schooner grounded. In consequence of this a delay of eight and one-quarter days ensued. Held that, as the wharf designed was suitable, and the manner reasonable, and as the accident happened solely from the libelant's fault in not obeying the instructions given him, the libel must be dismissed.
In Admiralty. Chnrles F. Walcott, for libelant. Joseph M. Day, for respondent.
NELSON, J. This is a libel, by the master of the schooner L.8. Melson, against the consignee of a cargo of 312 tons of coal, brought from Philadelphia to Provincetown, for demurrage and expenses incurred in discharging a part of the cargo in lighters. In attempting to approach the consignee's coal wharf, in Provincetown, at which the master was directed to deliver the coal, the schooner grounded, and by this cause was detained eight and one-quarter days beyond the lay days stipulated in the bill of lading, and was obliged to discharge a part of the cargo by lighters before she could be got afloat. The disputed points were as to the depth of the water, and whether the master followed the directions of the consignee in approaching the wharf. It was clearly proved that in front of the whal'f, which extended out from the shore in a southerly direction, and on the easterly side, where vessels lay when discharging coal, the water was at least 10 feet deep at ordinary high tide. It was certainly of that depth when the schooner first attempted to enter. 'J'his depth of water was sufficient for a vessel of her draught, which was nine feet and four inches. But further out from the end of the wharf, on the east side, there was a shoal where the water was of less depth, and it was on this shoal that the schooner grounded. The libelant had never been in Provincetown before, and was unacquainted with the harbor. He states in his deposition that, in trying to get the schooner in, he followed the directions of the consignee, and he denies that the coneignee informed him of the existence of the shoal. Perhaps the libelant is under some disadvantage from the circumstance that his testimony appears only by deposition, while the witnesses of the other side were examined orally in court. But, making every allowance on that score, I find myself unable to disbelieve the Provincetown witnesses, from whose testimony it is clearly proved that the libelant was directed by the consignee to bring the schooner in under sail, and was told about the shoal, Itnd cautioned to beware of it. If he
by Theodore M. Etting, Esq., of the Philadelphia bar.