My conclusion, therefore, is that the salvors are entitled to be paid their salvage and their costs out ofthe fund in the registry, prior to any payment of duties out of the fund, and that next in order of payment is the claim of the United States for duties. I do not now fix the amount of the salvage award, because the facts are not all before me, and because the view I have taken of the law may render it desirable for the United States to be heard upon the question. . .
THE WHISTLER.1 MILLS f1. THE WHISTLER. (Di8fJrkt (Jourt, E. D. NeUJ York.
December 81, 1886.)
HABrrnm LIENs-DOMESTIC VESSEL-DEPARTURE FROM PORT. The departure of a domestic vessel, in the regular course of her occupation, from Brooklyn to Long Beach, on her return making fast to the shore in Rockaway inlet, is such a leaving of the port as to prevent the enforcing of a lien against her, arising under the laws of the state of New York.
In Admiralty. John P. Ada'ln8, for libelant. Wilcox, Ada'1n8 k Macklin, for claimant.
BENEDIOT, J. This is an.action to enforce a lien upon a domestic vessel, arising under the laws of the state of New York. The libelant's lien, if he ever had one, was, in my opinion, lost when the vessel went in the regular course of her occupation from Brooklyn as far as Long Beach, on the Atlantic ocean, returned,and put into Rockaway inlet; there making fast to the shore. This was, in my opinion, a leaving of the port. The libel must be dismiBBed.
THE CAROLINA! McKENNA f1. THE CAROLINA.
(DiBtrictOo'Urt, E. D. NeUJ York.
December 27, 1886.)
MARITIME LIENs-FAILURE TO PROVIDE SAFE "MAClII:NERY FOR DISCHARGE OF OARGO.
A lien arises against a vessel for damages occaSIOned by failure to provide safe machinery for the discharge of her cargo.
2. SAME-PERSONAL l:NJURy-STATEMENT OF OJ As.a hogshead was being hoisted from the hold ofthe steam-ship Carolina, a guy-rope, belonging to the ship and used for the hoisting, parted, and the
JReported by Edward G. Benedict, Esq. of the New York bar.
fall of the hogshead injured libelant. The officers of the ship knew of the , insufficiency of the rope." No flJ,ult Gould be attributed to libelant. Held, that he should recover damages against the ship.
In Admiralty. Anson B. Jitewart, for libelant. Wheeler & Cartis, for claimants.
BENEDICT, J. 'This is an action in rem, to enforce a lien upon the steam-ship Carolina for the damages sustained by the libelant, by reaE'cn of a personal injury, that occurred as follows: The libelant was one of a gang of longshore-men, employed at the time of the accident by a stevedore, who had contracted with, the owners of the steamer to discharge the cargo of sugar with whibh the steamer was laden. The station of the libelant was o,n, the dock and skid leading from the steamer's side to the dock, and his duty was to take care of the hogsheads of sugar when they were landed on the dock. The hogsheads were hoisted out of the hold, and lowered to the dock, by means of a tackle and fall attachedtQ o,theboom, and this boom was steadied by a back guy-rope, leading from the boom to the off-shore side of the steam-ship. The tackle, bOOtn;and guy-rope belonged to the ship, and were furnished by the officers of tlie ship for the purpose of hoisting out the cargo. In the process of hoisting out a hogshead of sugar from the hold the back guyrope parted, and the boom swung, whereby the hogshead was t4rown down the skid so rapidly that it caught the libelant before it was possible for him to get out of the way. His ankle was crushed, and for this injury . It is the defense thll.t the accident was caused by a flaw in the rope, by ordinary inspection. ,On the part of the libelant, the rope is claimed tO,have been old and unfit. A latent Raw in the rope.wouUl perhaps some of the testimony; but it would be inconsistent with the testimony of several witnesses, who say that this same rope broke the day before. The testimony of the man at the winch is to the contrary; but his testimony is overborne by the testimony of the libelant's witnesses to the fact. The officers of the ship are therefore chargeable with knowledge of the insufficiency of the rope, and were guilty of negligence when they permitted it to be used after its insufficiency had been decided by its breaking. The guy-rope, boom, and tackle constituted a machine, constructed and used for the purpose of landing the sugar. This machine it was the duty of the ship-owner to maintain in ,a safe condition. :Having failed in this duty, he is responsible for the results of his neglect. The libelant had nothing to do with the working Of that machine; his duty commenced when the work of the machine ended. He had no occasion, therefore, to examine the rope in question, and was not bound to do so, but, on the contrary, had the right to assume that the machine provided for hauling the hogsheads out of the ship was fit and proper for the service; and he took no risk as to its condition. He was guilty of no neglect, therefore. Neither was he a fellow-servant with the officers of the ship. His employment was .an
independent one,-his master was the boss stevedore. He assumed no risk whatever in regard to the method in which the ship-owner and his servants discharged their duties. If, therefore, this were an action in per80nam against the owner of the ship, the libelant's right to recover could not, in my opinion, be denied. Whether he has a lien upon the ship is a different question. Upon this question I am bound by the adjudication of the circuit court of this circuit in the case of The Rheola, 19 Fed. Rep. 926, where, ina case quite similar to this, a lien was en· forced. In the opinion in that case the question of lien is adverted to simply to say that the existence of a lien was not disputed. I may, therefore, perhaps, with propriety add that I do not perceive any ground for a sound distinction between a claim for damages founded upon negligence in the navigation of the ship, where a lien always arises, and a claim likethis,based upon neglect to provide safe machinery for the discharge of the'cargo of the ship. As to the damaKes, I think' $450 will be a proper sum to award, 'with costs. Let a decree for that sum be entered.
HAS1ON8 and others
(Circu't Cou"t. E. D. NetIJ York. ,June 28, 1888.)
ScB:ooNEn IN TOW-SUDDEN 8BEn. The decision of the district court in the same case (28
Admiralty Appeal. H.D. Hotchkiall, for libelants, Haskins and others. Owen &: Gray, (F. D. Sturges,) for the Richmond, appellant.
BLATCHFORD, Justice. The reasons assigned by the district judKe for condemning the Richmond, and exonerating the tug, were these, the Richmond improperly sheered to the west, and struck the schooner. Even if the tug began to sheer to the west before the Richmond did, act did not cause the collision, because the tug was, from the outset, to the west of the RichJ;llond, and a swing of the tug to the west would be in a direction away from the Richmond, while the swing of the Richmond to the west was towards the tug, and such swing necesBllrily brought the steamer and the schooner into collision. The tug and the Richmond were not upon courses crossing, so as to involve risk of collision, and impose on the tug the duty of avoiding the Richmond. I concur in theilEl views, and in the conclusion to which they lead. Let
by R. D. &,Wyllys Benedict, Esqs., of the New York bar.