copied a lithograph which was protected by the complainants' copyright. and have thus attempted unlawfully, and without due recompense, to reap the fruits of the complainants' genius and enterprise. The complainants are entitled to a decree for an injunction, with costs.
THE MAGGIlt ROBINSON
and others v.
(lJi8trict (lourt, S. lJ.l(ew York. April 21, 1887.)
SHIPPING-STOWAGE-DAMAGE TO GOODs-LEAKAGE-PERILS OF THE SEAS.
A vessel is bound not only to stow securely, so far as practicable, but a.Jso to separate, so far as may be, such as are liable to injure each other, . .through accident, in severe weather. . Two tie'rs of oil barrels were in the between-decks in front of and over bales of cork. The barrels got adrift in severe weather. Some were smashed, others leaked, and the bales below were injured by oil. Held, that the burden of proof was upon the vessel to show that the injury could not have been avoided by reasonable care, both as respects secure stowage of the barrels, and the separation of the barrels from the bales. wth reference to the liability to accident, and consequent leakage. Neither satisfactorily appearing upon the proofs, the vessel was held liable for the damage.
SAME-CASE STATED-BuRDEN OF "P:B00F.
In Admiralty. Henry Brodhead, for libelants. Olin, Rives & Montgomery, for claimants.
BROWN, J. This libel was filed to recover damages for injuries to 31 bales of corks out of a shipment of 114 bales, brought from Seville La · New York by the bark Maggie M., in the autum of 1885. The bales were alleged to be damaged by oil. The proof shows that the cork bales were stowed in the lower hold, mostly around and aft of the main hatch, and extending up between the beams of the open between-decks. Immediately forward of the main hatch were stowed two rows of barrels, ·containing olive oil, running athwart ships. The ship experienced some very heavy weather, causing great rolling of the vessel, and the loss of some sails, and during this weather the pumps began to bring up oil from the bilges. Upon arrival, the oil barrels of the forward tier were found to have got adrift, and their contents gone, a ·few of them being smashed to pieces. The weight of proof shows that most of the bales were stowed aft of ·the oil; but considering not only the positive testimony on the part of · the libelllnt;l, as well as the statements of two of the claimants' witnesses, I think that some, at least, of the bales were stowed beneath the oil. There is nothing inconsistent, therefore, in the theories urged on both sides. namely, that the bales that came out first were uninjured, which
THE MAGGIE M.
may have been those taken from aft of the main hatch, or those that projectedbetween or above the beams; and the testimony of the libelant's witnesses that the oil ran down upon the bales beneath the main hatch; while still other bales may also have been injured by the rolling of the ship after so much oil was suddenly set free in the rough weather. While the proof on the libelant's part is very indefinite as to the extent of the damage, it is impossible to doubt from the testimony that the bales were damaged to some extent by the oil that came from the broken barrels. Quite a number of the bales are described as "soaking wet" with oil, so that the oil could be squeezed out of them. That the barrels were broken during the rough weather, and in consequence of it, I have no doubt. The only questions that remain, therefore, are-Fir8t, whether the barrels of oil amid-ships were stowed as securely as by reasonable care they might and should have been, having reference to the contingencies of the voyage; and, 8econdly, whether, in view of the injury likely to arise from any leakage of the oil, or any breakage of the barrels, they should not have been stowed further away from goods specially liable to be injured by it. A careful reading of the testimony does not satisfy me on either of these points. While the gales that the vessel met were undoubtedly severe, they certainly were not unprecedented; nor, so far as I can perceive, is any justification or excuse shown for stowing the oil and the bales of cork so near together. In the stowing of goods, the possibility of heavy weather must be considered, and duly provided against; and equally also the effect upon other parts of the cargo, if oil barrels should get adrift. In excepting perils of the seas, the owners of goods do not take upon themselves the consequences of a want of reasonable prudence and care Dn the part of the ship. The vessel is bound to make reasonable provision against all the ordinary contingencies that experience shows to be likely to cause damage. She must stow securely, and, so far as possible, keep goods well separated that are likely to injure each other through .accident in severe weather. The latter this vessel clearly did not do, and no excuse for not doing it appears. The Snbioncello, 7 Ben. 357. The present case is less strong for the vessel than that of the case last cited. The cases of The Fern Holme, 24 Fed. Rep. 502; The Bnrsweall, 13 Fed. Rep. 904; The Oha8ca, 23 Fed. Rep. 156; The Titania, 191i'ed. Rep. 101; and The George Heaton, 20 Fed. Rep. 323.- referred to by the claimants' <counsel,-seem to me substantially different j.gthe circumstances and the proof. . Not being satisfied with the sufficiency of the ship's proofs to clear her in the above respects, and the burden being upon her, I must allow a .decree for the libelants, with costs.
WEISENBERG and others
(District OOU'l't, E. D. Pennsylvania. March I, 1887.)
Money paid by 8 shipwright to the muster of a ship undergoing repairs, for services connected with the contract for muking such repairs, will be deducted from the shipwright's claim, although all the repairs made were neccsslLry. and the charges therefor reasonable.
In Admiralty. aside.
Rule to show cause why decree should not be ,set
Ohas. Gibbons, Jr., and EdmundB Jc Driw:r, for libelants. John Q. Lane, for respondents. '
BUTLF.R, J. A decree was regularly entered in this case, founded on the admissions contained in the answer. The answer was by the master, who was also a part owner. Subsequently, other part owners, having the principal interests, applied to have the decree opened, alleging in substance, that it was obtained through Collllsion between the libelant and the master. A rule to show cause was granted; and this rule, with the testimony taken under it, is now up for consideration. Nothing else is involved. The question of jurisdiction, sought to Le raised, comes too late; and nothing else need be said about it. A careful examination of the testimony has failed to satisfy me that any collusion existed. The repairs were necessary, and properly made. There was no motive for the fraud charged. If the master received a consideration for giving the work to one shipwright rather than another, he did wrong, and may be c9mpelled to account for what he thus received. It dam; not appear that the charge for repairs was unreasonable, or that any injustice was done the ship by awarding the work to those who perJonned it. The decree must therefore stand. The libelant has, however, charged the vessel with $300.99 more than he actually advanced jor repairs. It is true he handed this sum over; but it was immediately returned, pursuant to previous understanding. It was an abatement made by the shipwright in his favor, as an additional compensation for services. The vessel should, however, have been given the benefit of it. The libelant occupied the position of its fiscal agent, for the time, and is entitled to be repaid only what he advanQed and disbursed. with the customarv interest. To allow one occupying his position to enter into such an:angements for his own bellefit would be wrong in principle and dailgerous in practice. The decree must be reduced to this extent, leaving it stand for $7,170.01.
lReported by C.llerkeley Taylor, Esq., of th" l'hiladcll'hia bar.