therefore, in the libelant's schooner, that she remained where she was. 'Under these circumstances, I think the tug took the risk of landing the Wallace along the end of the pier in such a way as t:> inflict no severe blow, or, any rougher contact with the libela,nt's schooner than is usual or naturally t9 be expected in navigation about the piers and slips. If this blow or contact was greater than such an ordinary contact or blow, the libelant had no'cause of complaint, unless heb:ad previously given notice of some special weakness of his vessel that required more than usual care. The Reba, 22 Fed. Rep. 546; The Syracuse, 18 Fed. Rep. 828. But no such, notice was given. In spite of the testimony and judgment of some of the witnesses for the tug, I am satisfied, as in the cases above cited, that the blow inflicted was such as was unjustifiable as respects either a new or an old boat. The parting of the hawsers, and the breaking of chains by which the bltthhouse was secured, and against which the libelant's schooner lay, seem to me conclusive evidence on this point, in confirmation of the libelant's testimony. As in those cases',aIso, there is sufficient evidence of the rottenness of the wood eXI?osed in the side of the libelant's schooner, when she was repaired, to convince me that the schooner was not in a condition of fair or ordinary strength, but weak, and unfit for the usual contacts of vessels about the slips. The R. Stone. 9 Ben. 182. It is impossible to tell what injury would have been inflicted on a sound schooner by a blow such as this, while I have no doubt that it would have been much less than happened to this schooner. There is no other way, therefore, than to divide the damage, as was done in the cases cited; since both are to be treated as in fault, contributing to the damage that actually occurred. To allow old boats, that give no notice of their weakness, a right .to be fully repaired, would encourage them to run in the way of others. A decree may be entered for half the damages, and a reference taken, if they are not agreed upon, to ascertain the amount·.
THE SALI,IE McDEVITT 11. THE
January 18, 1887.)
The owners of the respondent hired the libelant to carry a cargo of sand from their wharf, on the Rancocas creek, New Jersey, to Baltimore. They sent their own tug to tow the libelant in and out of the creek. The creek is sinuous, and difficult of navigation. The channel, water. and obstructions were well known to the respondent, but not to the libelant. While the reo spondent was towing the libelant out of the creek, the libelant ran into an ob· struction. and soon after sunk. Held. that the movements of the libelant were legally a.nd actually under the control of the respondent; that it was the respondent's duty to conduct the libelant so as to keep her clear of ob· structions; and that, in failing to do this, the respondent was negligent.
lReported by a.Berkeley Taylor, Esq., olthe Philadelphia bar.
THE SALLIE M'DEVIT'X V. THE J. W. PAXSON.
In Admiralty. . Appeal from district court. See 24 Fed. Rep. 802. H. R. Edmunda, for libelant. Pugh, for respondent.
McKJ!:NNAN, J. This case involves and turns upon a single question offact, viz., was the respondent guilty of negligence in the performance ofthe duty which he undertook to perform in reference to the libelant, whereby' the injury complained of was caused? The barge Sallie McDevitt was hired about the fifteenth of November, 1882, by the owners of the steam-tug J. W. Paxson, to carry a cargo of sand from their wharf, in Rancocas creek, New Jersey, to Baltimore, they furnishing their own tug to do the towing in and out of said creek. The barge proceded to the place of loading, and the cargo was put on board of her.. Rancocas creek is sinuous, and somewhat difficult of navigation, butits channel and water, and the obstructions in it, while the libelant was not familiar with them, was specially well known to the respondent. The McDevitt was taken in tow by the Paxson at the end of a hawser 40 to 60 feet long, and the tug had. in tow another barge, theMurray Manville, which was attached along-side of her; the McDevitt dra.wing about six feet and one-half, and the Manville about five and a halffeet. Just below a sharp bend in the creek, where the channel is 901y about 80 to 35 feet wide, a sunken wreck had remained for 25 years, which was well known to the respondent. It inclines from the shore, and' extends to the edge of the channel, and over it the water flows about three feet in depth. At this point the collision occurred, the libelant running afoul of the sunken wreck, knocking a hole in her bottom in her port bow, and causing her to sink a few miles below. The tug was running under one bell, about two miles an hour I at the time, and the barge was steering so as to head between the tug and the Manville. The movements of the barge were, legally and actually, under the controloUhe tug, and she was therefore bound to conduct her so as to keep her clear of an obstruction with the existence and location of which she was perfectly familiar. This was altogether practicable, and this obligation she did not discharge. She assumed sucha place in the channel as to; push the barge along-side of her onto the obstruction, and to bring the stern tow, which drew more water than the Manville, directly incontac.t with it. This was negligence, and caused the injury. Theallegl\tion. of the respondent that the McDevitt was not steered so as to· keep directly in the wake of the tug is against the weight of the evidence, as is also the hypothesis that, just before the collision, the McDevitt steered to port, and then to starboard, by which she was brought into contact with the obstruction, and that this was caused by the unskillful steering of the .1f,1cDevitt. Upon the whole, I am satisfied the decree of the district court was right, and a decree will therefore be prepared and entered in this court for the sum awarded in that court to the libelants, with costs.
(DiBWict Court, E.
and others. l
Febru$ry 4, 1887.)
TO FU:RNISH CARGO-BREACH-DAMAGES.
. In Admiralty. Theodore M. Etting, for libelant. F. S. Brown, for reSlpondent.
"of about loO.tons" of bones, and the libelant undertook to carry thisnum-
By the contract, respondent undertook to fumish a cargo
ber of tons. There was no express stipulation where they should be stored, but it seems to have been contemplated that, after filling the hold, the balance should be placed on deck. The contention by respondent that the libelant, when loading, claimed that he was only to receive what could be strlred in the hold, and refused to receive more, is not sustained by the proofs. It is true that Mr. Fitch swears to this, but his testitimony is met by that of the master, who, although not called after Mr. Fitch had testified. nor in antlcipation or with knowledge Of what this witness would say, swears to facts wholly inconsistent with Mr. F.'s testimony. All the material circumstances of the case, bearing on the subject, also, are irreconcilable with Mr. Fitch's testimony. At the very time when this witness (whose miscalculation, or mistake, caused the litigation) says the libelant refused to take more bones, the libelant was protesting in writing against the violation of his contract in not fumishing the 150 tons. From the beginning to the end the libelant's conduct was consistent with the position that he expected to earry this quantity, and with no other. It is impossible, therefore, to avoid the conclusion that Mr. Fitch is mistaken, or unreliable. If the respondent had furnished 145. tons, I would hold that the terms of the contract had been complied with. I am inclined to think that a materially greater shortage than this would not be allowable. He furnished 106, and must be held responsible for failure to fumish the balance of 145, to-wit, 39. The libelant's damages are therefore what he would have made by carrying this additional quantity according to the terms of the contract. A decree will be entered accordingly.
JReported by O· .Berkeley Taylor. Esq., oithe Philadelphia bar.