':rHE OARL FREDERICK. THE DELAWARE.! CUFF
(Oircuit Court, E. D. New York. December 13, 1887.)
APPEAL-FINAL DECREE-DISMISSAL FOR WANT OF EVIDENOE.
A decree of the district cOll,rt dismissinu: a libel for want of evidence is not a final decree, within the meaning of the statute allowing appeals from the district court,in admiralty, and an appeal therefrom will not lie.
On motion to dismiss appeal.
Goodrich, Deady &: Goodrich, for libelant. Carpenter &: Mosher, for claimant.
LACOMBE, J. This is a motion to dismiss an appeal from a decree of district court, on the ground that such decree is not final, within the meaning of the statute appeals from the district. court, in admiralty·. When the case was regqlarly reached for trial in the district court, appellant's counsel moved lor a postponement, which was refused; and, upon his further statement that his witnesses were all away, and that he had no evidence to. offer. counsel for claimant moved to dismiss the libel, as no evidence had been submitted. The motion was granted, and decree of dismissal entered. The case is clearly covered by the prior decisions of The Merchant, 4 Blatchf. 105; and Farrell v. Campbell, 7 Blatchf. 158. The motion is granted.
THE CARL FREDERICK. THE ENOCH TALBO':r. SUNSET TELEPHONE & TEL. Co. v. THE CARL FREDERICK and THE ENOCH TALBOT.
(DiBtrict Court, No D. California. December 5, 1887,)
COLLISION-WITH SUBMARINE CABLE-DRAGGING ANCHOR.
Where aship has been lying at anchor in one spot for 18 days, and suddenly, in the night, begins dragging, and it afterwards appears that a kedge which had been lost had so fouled her anchor as to wrap round the chain, and cause the anchor to lose its hold, the accident must be ascribed to the peril of the sea. When a ship her anchor by a peril of the sea, and it does not appear that the dropping of a second anchor would have been of any avail, and there is no evidence to show want of reasonable skill and diligence on the part of the captain, the vessel is not liable. .
, IReported by Edward G. Benedict, Esq., of the New York bar.
In Admiralty. Libel for damages. The Sunset Telephone & 'Telegraph, Company filed a libel against the ships Carl Frederick and Enoch Talbot, alleging that by carelessness and mismanagement they had dragged their anchors against the submarine cable of the libelant, and had broken it. Pillsbury for libela.nt. Milton Andro8, for claimants.
HOFFMAN, J. I have carefully;, reconsidered the evidence in these cases, and have come to the conchision that the judgment heretofore ren· dered was erroneous. That the cause of the accident was the fouling of the Enoch Talbot's anchor with a kedge, which had been lost or abandoned by some vessel, and which was lying on the bottom of the bay, unknown to and unsuspected by anyone, is, I think apparent. When the anchor was hove up, aite;r the accident, it came to the surface crown 'Up; and with the chain so wound around it as to deprive itofall effi. cacy as an anchor, except from,its mere dead weight. It is suggested by the advocate for the libelant, that there is no proof that this fouling occurred the Talbot began to drag. There is, of courSe, no direct proof, beCltlui'e 'ocular observation was impossible. But to what other cause can we attribute the dragging of the ship? There was no high wind or sea; The ebb-tide was .running,however, with unusual force. There was1'lothing, therefore,in'the nature of a m.s. major, which. could 'have caused a well-anchored ship to break from her moorings. She had lain at the same place for 18 days; when suddenly, on the night oCAugust 7th, the second mate, who kept the anchor watch, observed that she was dragging. The only probable explanation this circumstance is that her anchor had fouled, and lost its hold on the bottom, which, in fact, proved to be the case. To suppose that this occurred after she began to drag is to leave the dragging wholly unexplained and inexplicable. But the condition in which the anchor anf! chain were found, when subsequently hove up, seemst() demonstrate that the fouling must have occurred belore, and not after, commenced, and was in fact the cause of it. The condition of the anchor and chain was illustrated in court, of mofIel. From the, number of turns which the chain had taken around and crown it was apparent that the ship must have swung to the tide more than once, after the kedge was pioked upja faat inoonsistent with the idea that the kedge was picked up after she began to drag, and when she was drifting to the ebb-tide. ., .If then, the fouling of the anchor was the true 'cause .of the accident, the colliSion 'tilust be ascribed to&. peril of the sea; for such 'an unusual and unforeseen occurrence is like an unknown or sunken rock, or a derelict w,reck,---anacoident ,fQr the consequences of which the'ship .is not respousible.' Butth.e master 'of a vessel, even though the cause of the accideht may be a peril of the sea, isnevp,rtheless bound to the exercise of reasonable care and nautical skill avoid or mitigate its injurious consequences. The only. fault charged upon.themaster in thiscase is
TH:E MAGGIE M.
that he did not let go his second anchor. The second mate seems to ,have thought this advisable. But the captain's judgment was that he had not room enough to give her aufficient chain to bring her up before striking the Carl Frederick. He further says the anchor would have dropped over the chain of the latter vessel, and would have had no effect. Both the captain and the second mate agree that the second anchor, if dropped, could not have prevented the collision nor the subse.quentdrifting of 'both vessels down the bay, to the vicinity of Blossom rock. This opinion is confirmed by the fact that when the master, did let it go, because, as he says, he did not like to go on the rock with an anchor on his bow, it had no effect whatever, and the vessels continued to drag until brought up by a change in the tide. When the primary cause of disaster is shown to be a peril of the sea, the proofs should be clear that' it might' have been prevented by the exercise of reasonable skill and diligence. Error of judgment ought not wcreate a liability, unless the error be such as to show incapacity, or the want of that degree of professional skill which reasonably may be exacted of a ship-master. It must also plainly appear that but for that error the damage would have been avoided, or appreciably mitigated. I do not consider that the proofs show that the master in this case committed any, error' disclosing a want 'of reasonable skill and diligence. I think, on the contrary, that the preponderance of proof is in favor of the conclusion that the dropping of the second anchor would have been wholly i!letrectual to prevent or modify the injurious consequences of the accident. Libel dismissed.
THE MAGGIE, M.I ROBINSONet
tI. THE MAGGIE M.
(DUt'I'Wt 'oourt, S. D. New YO'I'k. January 18, 1888.)
ADHIRALn-"-8TIPU'LATION-SUltETY DEFENDING LIABLE FOR INTEREST;'
One whp signs a stipulation for the value of a vessel libeled. and thereafter defends the SUit. is liable for interest'on the face of such stipulation from the time it was filed, though hll acted simply as ,agent for an absent owner.
,Henry Broadhiad, for libelants.
. OlJi:n', Rives, <to MontglYflUfrg, for claimants.
BROWN, J. The bark in question being British, and her owners resident abroad, upon her arrest by the marshal, I..eonard & Florez, the ship's agents here, intervened as agents of the owners, and filed a claim on the owners' behalf. They executed a stipulation for the agreed value
'Reported by Edward G. Benedict, Esq., of the New York bar.