Cal. 509, 6 Pac. Rep. 329; The Vidoria, 13 Fed. Rep. 43; Dwyer v. Na,#onal S. S. Co., 4 Fed. Rep. 493. At the time the ship was turned over to the stevedores the trimming hatch was OQmpletely covered. The deck was also covered with dun. nage two inches in height, i. 6., inch boards laid on battens one inch high. The master, I believe, (although, there is some discrepancy in the evidence on this point,). told the foreman of the stevedores that one inch of dunnage would be sufficient for case goods. He gavl;l no direcHe did not see tions that the trimming hatch should be left the boards removed from the hatch; nor did he.know that it had been done, Ml the details of the operation of loading the ship were under the exclusive charge and $uperintendence of ,the foreman of the stevedores. If he, in obeying the master's general direction, tQ the effect that one inch of dunnage would be sufficient, removed the boards which cov,ered the hatch without warning his men of the existence of the hole thus opened, it seems to me that the negligence was his, and not that of the master. The circumstances of this case differ widely from those of the cases to which I have been referred, and mOEt of which are cited in this opinion. In every instance there was manifest negligence on the part of the ship-owners or their servants in failing to provide adequate appliances for discharging or lading the vessel, or in turning her over to the stevedores, with an uncovered and dangerous "trap," in a dark and unusual place. In this case the hatch was uncovered by the foreman of the stevedores. It was his duty either to leave it covered, or, if its removal was necessary to conduct the work, to warn his men of the danger to be apprehended from it; and this seems to be the view of one of the libelant's fellow-workmen, who thought of telling his comrade to beware of the hole, but forgot to do so. ' I think that the ship is not liable, under the circumstances, and that the libel should be dismissed.
THE ELIDA. 1 ZINCKE,
Master of the Elida,
(IJiatrict Oourt. E. D. Pennl/ylvania. June 28, 1887.)
DEMURRAGE-TRANSFER OF CARGO....,NoTIOE. To relieve. the owner of a cargo. when he has
transferred it, from responsibility for demurrage, he must show that notice of such transfer was given to the master of the ship.
SAME-CuSTOM OF PORT.
Demurrage will not be allowed for delay caused by unloading in accordance with the custom of the port.
by C. Berkeley Taylor, Esq., of the Philadelphia bar.
aharlesGibbons, Jr., for libelunt. Driver & Coulston, for respondents.
BUTLER, J. Knowledge of the allegedtranst'er of cargo by respondents is not brought home to the libelant. To shift responsibility for the demurrage claimed this fact should be made clear. The respondents were dealt with as owners throughout. They were looked to for the freight, and they paid it. This point presents no difficulty, and may be dismissed without further remark. There was delay in reaching the wharf. The respondents admit liability to the extent of one day. I think another should be allowed for detention at this time. The evidence seems to require it, though there is some conflict between the witnesses about this. Are they liable for subsequent delay? This is the most serious. question. An undue amount of time was occupied in unloading. Did this result from fault of the crew, who put the barrels out, or of the respondents, who received them? Complaint is made of the position in which the vessel was placed at the wharf. This position, it is alleged, seriously retarded the work. It appears, however, to have been in accordance with the custom of the place, and is therefore not a proper subject of complaint. There is nO doubt, however, that the position, and the state of the weather, interfered with the work, and thus some part of the time lost is accounted for. Does the evidence show that further time was lost by tardiness in receiving the barrels? The testimony on the one side and the other is irreconcilable. The witnesses are apparently all equally qualified to speak on the subject. I do not propose to discuss it. A careful examination has satisfied me that some delay was caused by tardiness in this respect. I am equally well satisfied, however, that all the delay did not result from this cause. It is a significant fact that the libelant settIed for the freight without complaining in this respect. It is not sistent with the allegation that so great a loss had been sustained from this cause, that he should neither have protested while unloading, nor demanded compensation when settling. Still, as we have seen, the respondents admit liability for one day's detention in getting to the wharf. ·'1.'he failure to demand compensation for this tends to weaken the force of the inference just referred to; and, as before stated, I am convinced that some delay did arise from tardiness in receiving the barrels. Precisely how much, it is difficult to say. The burden of proof is on the· libelant, and the consequences of uncertainty must fall on him. The respondent must not be held accountable for a greater sum than can be with safety. One day will cover this, in my judgment, and the libelant will be allowed the demurrage provided by the charter for this, and the previous day referred to, in addition to the amount paid inte> court. To what cause the remaining time, unnecessarily occupied, should be ascribed, need not be determined. It is sufficient that the evidence does not justify me in holding the respondents liable for it. A decree must be prepared accordingly.
INs. Co. 1
E.I). !'enn81/1fJania.May 81, 1887.)
MARlNE INSURANCE-CONSTRUCTION OF POLICy-SALVAGE. Under ll. policy of insutance,Mntainin?, the clause, "free
from particular average less than fifty percent.,' there can be no recovery from the Insurer, of salvage, and agenrs expenses, when there are other insurers, and the proportion of loss payable by the respondent is less than 50 per cent. of the amount of the policy.
In Admiralty. . The case came up on libel and exceptions, of which the following are copies: ' The libel of William Buzby, owner of the bark Samuel Welsh, against the Phoonix Insurance Company of New York, in a cause of insurance, civil and maritime, showeth: (1) That on the twenty-sixth day of February. 1886, the Phoonix Insurance Company caused the libelant to be insured, on account of whom it may concern, ,in the sum of twenty-five hundred dollars on the. bark Samuel Welsh, valued at fifteen thousand dollars, against the perils of the seas, and other forth I:>ya policy oithe defendant company; free from particular perils, as .general average' tirider fifty per. cent., from the fourteenth day of February, 1886, until the fourteenth day of February, 1887, for the sum of one hundred and fifty dollars, expressed to have been paid by the insured, to which libelant craves leave to refer as a part of this libel. (2) That, at the time of effecting the said insurance, the said William Buzby was interestedinthe said bark, as sale owner thereof, and continued so until at and after the happening of the disaster hereinafter mentioned, and that other insurance had been effected by the libelant, according to the ordinary forms of their policies, free from particular average under fifty per cent.,in the Insurance Company of North America, ten thousand dollars; and in the Insurance Company of Pennsylvania, two thousand five hundred dollars, -on the said vessel, in each of the said policies valued at fifteen thousand 'dollars. (3) That, among other clauses in the defendant's policy, is one in the following words: "And, in case of any loss or misfortune, it shall be lawful and necessary to and for the assured, his factors, servants, or assigns, to sue, labor, and travel for, in and about the defense, safeguard, and recovery of the said vessel, or any part thereof, without prejudice to this insurance; to the charges whereof the said insunmce company will contribute according to the rate and quantity of the sum herein insured; nor shall the acts of the insured or insurers, in recovering, saving, and preserving the property insured in case of disaster,becbnSidered a waiver or acceptance of an abandonment. (4) The said vessel, while said policy was in force, was, by the perils of the sea, driven ashore ,on the rocks at Sea Island, on the coast of Nova Scotia, while on a voyage fr9m Sierra Leone, and was abandoned by the master and crew to save their lives;, ,that the vessel came off the reef, and was taken possession of by wreckers, whO took her into the port of Yarmouth, and libeled the vessel and her cargo for salvage; that the libelant, in accordance with his under· standing of the said respondent's salary,sent an agent to Yarmouth to attend ,to the vesse1'sinterests, whose expenses amounted to $603.34, and the libel1 Reported