OpenJurist

760

FEDERAL

REPORTER.

amined the beam to see if any such crack existed. Otherwise the beam was sound. Boardman says it looked shelled, and he could not tell whether the crack went through the beam or not. That the master was perfectly familiar with the method of strengthening such It beam by splicing and bolting cannot be doubted. Some discretion ought doubtless to be left to the master concerning the extent of the repairs to be made in a port of distress. He is bound. to put the ship in good seaworthy condition if possible, (Hazard v. New England Marine Ins. Co., 1 Sum. 218; Starbuck v. Same, 19 Pick. 198;) and his general authority does not restrict him necessarily to repairs that will be exhausted by the voyage, (Green v. , Briggs, 6 Hare, 395; Brooks v. Oriental Ins. Co., 7 Pick. 268.) But he is bound to act in good faith for the interests of both ship and cargo; and when temporary repairs, quite sufficient for the rest, of the voyage, can be made quickly and with slight expense, he is not justified in inflicting a heavy charge upon the cargo, and in other· wise endangering its condition, through long delay, for the sake of making permanent repairs for the general advantage of the ship and her owners. Wilson v. Bank of Victoria, L. R. 2 Q. B. 203, 211, 212. In the case last cited, BLACKBURN, J., says: "Inasmuch as the master could, by the expenditure of a comparatively small sum on temporary repairs and coals, bring the ship and cargo safely home, it was his duty to do so;" and it is intimated that if the master had done more, and unshipped the cargo for that purpose, his owners could not have charged the expense of unloading to the cargo, but would have been liable to the cargo owners. The substitution of a new beam in place of the old one, in this case, when, as I am entirely satisfied, the repair of the old one would have been quite sufficient for the voyage, was, under the circumstances of this case, in my judgment, an unnecessary and unjustifi. able mode of repair. It compelled the discharge of a much greater quantity of sugar than would have been otherwise required; set in motion secondary drainage, which could not have been wholly unexpected; and entailed a long delay at Bermuda, with the consequent increased waste. Seven days were employed in unlading, and five days in reshipping. To repair the beam without removing it would have required scarcely more than the removal of the 498 damaged bags, which could have been done in a day; and no reason appears for a detention of more than two weeks altogether for such temporary repairs as were necessary. From the fact that the cargo was worth much more than the bark, the expenses on a general average would fall mostly on the cargo; and these expenses include some charges which, if the repairs had been made in New York, would have fallen wholly on the ship. It is not necessa.ry to determine what was toe master's motive in making more than temporary repairs at Bermuda, -whether because he supposed they could be done cheaper there than in New York, or in order to have but one job, instead of two,

THE QUEEN.

761

or from some more personal interest, or from mere error Qf judgment. But the course pursued was, in my opinion, so plainly such a sacrifice of the interests of the cargo as to make the ship answerable for the loss thereby caused. The other circumstances shown by the evidence are not such as to mdicate that any considerable discharge of the cargo was necessary. If the topmast was so decayed as to require renewing, as recom· mended in the survey, and all the top sides from the metal up needed iecaulking, it is difficult to believe that the baJ;.k was in suitable condition when she left Bahia, seven weeks before. I do not, however, adopt that alternative, though that would make the ship equally liable. The fact that, during the hour elapsing between the two soundings of the pumps by the surveyors on their first survey, there was no increase of water in the pumps, indicates that there was no actual necessity for all the caulking done on the top sides; and on arrival at Bermuda the caulking of the deck was started in only two seams next the main hatch. Although, by the American law, necessary repairs in a port of distress, made necessary by a general average cause, are themselves a subject of general average, yet it was stated by the supreme court, in the case of The Star of Hope, 9 Wall. 203, 236, that "expenses for repairs beyond what are reasonably necessary to enable the ship to proceed on her voyage are not general average." j"IcAndrews v. Thatcher, 3 Wall. 347; 7'he Hornet, 17 How. 100; The Ann Elizabeth, 19 How. 162; Brooks v. Oriental Ins. Co., 7 Pick. 268; Atwood. v. Sellar, 4 Q. B. Div. 342; S. C. 5 Q. B. Div. 286; Svensden v. Wallace, 11 Q. B. Div. 616. But where the repairs are such that, even under our liberal law on that subject, they would not be general avemge, there can be no justification for inflicting on the cargo a heavy expense for the sake of making permanent repairs, instead of Buch temporary ones as would perfectly well serve the purposes of the voyage. The ship must be held chargeable, therefore, for the loss arising from secondary drainage consequent on the unnecessary landing of so many sound bags, and the long delay at Bermuda. This loss apparently amounts, as I have said, to about 38,673 pounds. But, as I must find the long delay at Bermuda unjustifiable, so much of the natural waste as arose through and during the unnecessary delay must also be charged against the ship; and this, from the comparative length of time, cannot be less than It per cent. This operated upon the whole damaged pad of the cargo, viz., 1,124,802 pounds net; and would cause a loss, at ,the rate of It per cent., amounting to 16,872 pounds. To the previous items of loss, 16,872 pounds must therefore be added for this cause, making in all an apparent loss of 55,545 pounds. If either party, however, desires a reference to take further proof on the subject of damage, which was not fully considered on the

762

FEDERAl, REPORT:ER.

trial, a reference may be taken; otherwise damages will be allowed for the loss of 55,545 pounds of sugar at the market rates on March 20, 1884, with costs.

THE EUGENE VESTA.

(District (Jowt, E. D. Michigan. February 15, 1886.)
TOWAGE-COMPENSATION-VESSEL AGROUND-AUTHORITY OF MASTER.

W.here a vessel in process of loading was driven ashore and damaged, aurl the owner of the cargo demanded a return of the property shipped by him, offering to pay the expense of unloading, but the master refused thIS, and employed a tug to haul the vessel off and tow her to a place of safety, held, the master had no power to bind the car&,o, and the owner of the tug must look to the vessel alone for his compensatIOn.

In Admiralty. This was a libel against the scow Eugene Vesta and her cargo, to recover for the services of the tug International in rescuing the scow and her cargo from being wrecked on the shore of Lake Erie at the port of Tyrconnell during the month of August, 1885. The services were renderdat the instance of the master of the scow. The scow was loading wood for transport-ation to Detroit, and had taken on board about 80 cords, or two-thirds of a load, when a storm arose, which rendered it necessary to stop loading. The storm increasing, the vessel began to drag her anchor; and the master, fearing that if she drifted ashore she would be lost, voluntarily beached her not far from the dock, after throwing overboard some 15 or 20 cords of wood. The vessel suffered some damage from the stranding; and, as there were no means of getting her off the beach, the mastertelegraphed the owner, who sent the tug International, owned by the libelant, and the lighter Benedict, together with a steam-pump, to effect her rescue. The tug and lighter, with the steam-pump, left Windsor about noon of August 23d, but, meeting with heavy weather, were obliged to lie over at Port Stanley, and did not reach the wreck until the evening of the day following their departure from Windsor. Arriving at the place of stranding, the tug pulled the scow off without much difficulty, and brought her to Trenton with 60 or 65 cords of wood on board. The value of the vessel as she lay stranded upon the beach was estimated at from $600 to $900, and the value of the wood at the place of loading was three dollars to three and a half per cord. There was testimony tending to show that the wood had depreciated by the water-logging of the vessel. . The wrecking expedition arrived at Trenton in safety, but was there detained overnight, and did not reach Detroit until about noon of the next day. No tender was made to the libelant on behalf of the vessel or cargo, and no payment made for the services of the tug, lighter, or steam-pump. No appearance