,of 60, or the ope,!Uong-side. ,On the other hand, the libelant, Mr. Stangebye, that he went, to the wharf on receiving respondents' notice, anq :told by theindiyidual incharge that ,he, could not have a berth there., Mr. Ellicott Was not called to sustain his clerk, pre,sumably becausA he could not doH. No motive is libelant's refusal of a proper wharf there, if he could ha,ve ,obtained it. He appeared anxious to unload, and get Under the Qircumstances, we, cannot <:redit the clerk's testimony against libelant's; and the burden of proof being on the respondents, this disposes of the ,question. I have llotoverlooked the,fact of libelant's interest, and theapPa.rent disinterestedness ofthEi clerk. The latter, however; may have heard inaccurately, or his memQry be at fault.' If Mr. Ellicott gave permission to enter, he doubtless knows it, and his testimony would have removed all doubt. I will" therefQre, allows six days' demurrage, according to the terms of the charter, and for the freight. The question whether demand was made for the latter before suit iSllOt important. ,It related to costs only. The disp9sition made of the claim for demurrage settles this.
THE HARRY BUSCHMAN.' REEHoRSr
(Di8triet Court,S. D. New
Ja.nuary 16, 1888.)
:1. NEGLIGENCE-SEAMEN-INJURYof the bark B.. as the vessel waS running 'before ON DUTy-HEAVY SEA. " Libelant, whlle at the wheel
S!:SEAMEN-lNJURIES To-RIGHT TO HOSPITAL TREAT14:mNT-DuTY TO PUT ON SBORE. , ' " , ," '
a gale of wind, was thrown over the wheel through the effect of 8. heavy sea striking the rUdder: and. his wrist being thereby broken. he bronght suit for the injury, No faulty construction of the wheel being proved. or negligence on the of the ship established; held, that the vessel was'not liable.
Libelapt was in)uredwhile on a voyage from New York to Spain. , He testified that, on atrlval in a port of'Spain. he inSisted upon hospital treatment there, Which themastet tefllsad.; The master testified that libelant had preferred to return with the vessel·to Now York. His injury was a pecullar one; the·resqltQf the skillful treatment he received at the LOJ;lg Island hospital was so excellent as to render it doqbtful whether it would have been better for him to have been left in a SpanIsh hospital. Held, on the eVidence, that libelant CQuid ,not recover. "
In Admiralty. Libel by Charles Peter tel' Reehorst to recover dam:ages for persori8.liiljuries received as a seaman on board the Harry Buschman. ' . Shepard k' Oilborne, for'libelant; . . Wing, Shqudy &: Putnam, for c1l!imants.
BROWN, J.'; The libelant shipped as an able seaman On the bark Harry Buschman fotavoyage from New'York to Spain; .'fhe ship Sailed from
IB.ePQi'tAld by,lUdwW G. Benedict, Esq., of the.New York bar.
THE HARRY BUSCHMAN.
New York 011 the eighteenth ofJanuary , 1887. On the fourth day out, at about 8 o'clock in the morning, while the libelant was at the wheel, the ship running before the wind in a gale, a heavy overtaking sea struck th.e!rudder and caused the libelant to be thrown over the wheel, whereby the radius of his fore-ann was broken about an inch from the the wrist joint. The fracture was what is known in surgery as the "Collis Fracture,"-a difficult one to treat, and until comparatively recent times often confounded with dislocation of the wrist. The master did not think the wrist was broken,; it was bandaged and treated by him as well as he knew how. The radius was, however, completely broken, and the main portion overlapped' the other part at the wrist, turning the hand somewhat forward and outward, so as to lessen by one-half, or more, the power to rotate the arm, or to close the hand; thus resulting in a permanent partial disability" The vessel arrived at Pasages, Spain, abbut 40 days after the accident,and at Bilboa in about 55 days. The master testifies that at both places he made several inquires in regard to hospItal accommodations; the result of which was that there was none at which it ,was desirable that the libelant should go for treatment of such a fracture, and after such a length of time. A Spanish surgeon was procured ,at Pasages, who visited the libelant twice on board the ship,and prescribed for ,him. The libelant testifies that he, ills1sted upon being left at some hospital at or near,Pasages, or at Bilboa, or that he be sent by steamerto London rOT' treatment, and that the Spanish surgeon,advised that he should:go aNjnee to the nospital. The master, on the "Contrary:, denies any suchrecommendation of the surgeon, or· that the libelll.ntinsiated upon going to the hospital. He testifies that he told the libelant of his various inquiries, and of the results; that he would leave him, ifhe 'insisted on it; but recommended his remainingoD: board the ship; and the libelant finally acquiesced in that, as the best thing he could do. On arrival at New York, about 100 days after the accident, the libelant :was paid his wages in full, and was sent to the'Long Island hospitBl, where he remained'about three months at the ship's expense. Brskinful this long interval weteruptured, and the radius brought· back nearly into place, with a resulting success vety rare in such cases; but the rotation of the arm and the prehensile power of the hand are still such as to disable the libelant permanently for the duties of an able' seaman. ,The libelant claims damages-Jilirst, because the accident itself:, ashe alleges, was caused by the shl.cknass of ,the ropes at the Wheel; and; secOM, for not giving him hospital treatment earlier, and in the meantime reqUiring dfhim work for·which he was unfit. As respects the cause of the accident, I cannot find from the testimony that the libelant establishes negligence in the ship. The evidence shows that the wheel-ropes ought not to be kept perfectly tight, and that the slackness is constantly varying from different causes. The mate testifies that the ropes were in a proper condition; and that even if they were more slack than usual that circumstance instead of increasing the danger to the wheelsman, through seas striking the rudder, would diminish the
danger; f1,nd that not five minutes before the accident he had given special cautions tothelibelantj and that the ropes were not tightened, as the libelant alleges, until several dp,ysafterwards. The master testifies that he was carrying all the sail that was prudent; and it is not admissible to substitute the libelant's judgment, unsupported by other testimony, that more sail might have been carried, so as to lessen materially the effects of overtaking seas. Such saas are always attended with some danger to the helmsman, unless constant attention and caution are used. The mate's .:lRution to the libelant had evident reference to the known necessity of careful attention. There is no such preponderance of proof as to satisfy me that the slackness of the ropes was the proximate cause of the accident. As respects. treatment, had the libelant insisted upon being sent to a hospital in Spain, the master was doubtless legally bound to give him the benefit of immediate hospital treatment, or take upon himself the burden of proving the unfitness of the hospital, or that the libelant has sustained no additional damage from the want of it. The libelant testifies that he insisted repeatedly, and very earnestly, on being sent to the hospital; and only returned with the ship because the master would not permit him to go ashore. ,The master's testimony is quite as explicit to the contrary, and it is, to ,some ,extent, sustained by the mate. It is unfortunate thl;it the libehmt.has no one to corroborate any part of his tesiimony. There can be no doubt that there was considerable discussion as to what was best to be done. And it seems improbable that, if he were as explicit as he now affirms, none of his shipmates should have been either aware of it, or called, to support him. And even now. considering the length of time that had then elapsed since the accident, the 'special.skill necessary in the treatment of such a case, and the fact more than half the C1tses of" Collis fraotures," when treated at once, instead or after a lapse of 40 days, do not result in perfect cures, it is doubtful whether the final result ,would have been better had he been left atone of the Spanish hospitals. The m.edical experts say that even had the .wrist been treated in the best manner at once on arrival atPasages, that is, 40 days after the fracture, iUs not proLable that it would have been $\lfficieritly restored for the Ilbelant to continue an able seaman. The alleglltion of improper work imposed on the libelant I do not think SUBtained. In every aspect of the case, there temains too much of doubt, /lnd a failure Of the necessary preponderating proof on the libelant's part to authorize m.e to charge the ship with fault. I ain therefore obliged tpdismiss the libel, but it must be without costs.
NATIONAL BANK OF RUTLAND V. HANKINSON.
NATIONAL BANK OF RUTLAND t1. HANKINSON. ,
(Oircuit OOU1't, 8. D. New York.
COURTS-DEPOSITARIES-RATE OF INTEREST.
.A state depositary for court moneys, whose charter provides for a payment by it of not less than, 3 per cen,t. per an,n,um upon court money held in its trust capacity, has no power to make an agreement with parties to a suit for the payment.of a different rate of interest. Such power to vary the rate is vested in the court, and when the order directing the deposit is silent as to the rate If interest, the charter rate will apply.
Alfred R. Page, for plaintiff. Millir. Peckham &- Dixon. for Union Trust Co·
. LACOMBE, J. This action was originally begun in the supreme court of the 'state of New York by one Newton Kellogg, for whom the National Bank of Rutland has since been substituted as plaintiff. The original defendant was the Mutual Life Insurance Company. A motion was made by said company to interplead John H. Hankinson, an attaching creditor,which motion was granted, and on July 6, 1886, an order was entered sublltitutingsaid Hankinson and the public administrator as defendants, and providing that upon the insurahce company depositing the amount of the debt, less $10 costs, viz., $15,521, in the Union Trust Company, it be discharged from all liability to either the plaintiff or the parties so substituted as defendants. By the seventieth rule of the state court the Union Trust Company is named as one of seven trust companies in which court moneys may be deposited. In compliance with the terms of the order of interpleader the Mutual Life Insurance Company sent, by one of its employes, a copy of the order and a check for $15;521 to the Union Trust Company. The order and check were received by the company, and duplicate receipts given therefor as follows: "[Caption and Title.] This is to certify that the Union Trust Company has this day received from the Mutual Lif" Insurance Company the sum of $15.521, to be held subject to the further order of the court in the above-entitled action. Interest to be allowed at the rate of one per cent. per annum. [Signatures.] " It is stated in plaintiff's affidavits that the officers of the insurance company .did not become aware of the terms of the receipts or certificates of deposit until recently, but that circumstance is immaterial. Neither they nor their company had any interest in the fund, nor concern in itR ultimate disposition. The action was subsequently removed into this.cpurt. The plaintiff has prevailed, and an order has been entered (December 12, 1887) directing the Union 'l'rustCompany to pay over to plaintiff's attorneys "any and a,llllums of money deposited with the Union Trust Company to the credit of this aotion, pursuant to order of the supreme court, dated 1886, entitled 'Newton Kellogg v·. The Mutual Life Insurlnce Company,'togE;lthenvith interest thereon froUl the date of depositto 'v':33F.no.9-36