within her pdwer, without referElDce to the original SQ-caned right of way. The damages and costs Ulust therefore be divided.' The libelant is entitled to ,a: decree for half his 'damages and costs j and a reference may be taken to compute the amount, if not agreed upon.'
THE LoUISIANA} THE NEW ORJ,EANS. MILLARD
THE NEW ORJ.EANS. NATIONAL STORAGE CO. 11. THE LoumVAN WIE V. SAME. NEW YORK HARBOR Tow-BoAT Co. v.
(District Oourt, 8. D. New York. Mlirch 24, 1888.)
SALVAGE-FIRE ON PIER-TOWING VESSELS INTOSTREAltl:-ApPORTIONMENT 011' AWARD. , . .
Onthe !lofternoon of J!loDu!lory29,1887, a fire broke out on the bulkhead adjoin. ing piers 8 and 9; North river, in the city of New York, and spread with great rapidity pier 9. The steam-ship. Louisiana lay moored on the northerly side of.this pIer, alld the stcam-ship New Orleans on the southerly side, and both vessels cllught fire. Two, tugs hauled the Louisiana into the stream, ,and two others assisted in putting out the fire. Two other tUgs hauled out the New Orleans; olleof them' rendering butslight'service was not a party: herein. The. steam-ships were in great if they remained .long !lot the. pier. There was !lot UQ time any special pei'II to the tugs. The Louisiana and cargo were worth from $300,000 to $400.000; the New Orleans was worth$130,OJO. The above suits were brought by the various owners of the tugs to recover salvage. Held, that the Louisiana should pay $2,000 as salvage to the, four tugs which assisted her, viz., $1,400 to those that hauled her out, and .600 to the others; and that the New Orleans, whose danger was greater, though her value lesB, should pay the same to the awards to blil di,vided three·fourths to the one',fourth to crew.
Libel for salvage.
George H. Bruce, for storage company. Wilcoil:, 4dams &. MacHin, for Millard. John E.Parsort8, for claimants.
BROWN, J. The above libels were filed to recover for salvage services rendered to the steam-ships Louisiana and New Orleans on the afternoon ()f .Tanu1try 29, 1887. At about 4 o'clock of thl1t day a fire broke out among some bales of cotton upon the bulkhE\ad adjoins piers 8 and 9, North river. .The New Orleans lay moored,bows out, on the southside of pier 9; the Louisiana, bows out, moored on the northerly side. The fire spread with great rapidity along pier 9, and both steam-ers caught fire, and were considerably damaged. The cost of repairing the New Orleans was about$15 l 000; the Louisiana, about 87,500. ,Both were ha.uled out as soon aspossiblej steam-tugs Comrpun'ipaw,
. 'JReported by
G. Benedict, Esq., of tho New York
. FEDERAL REPORTER.
I4wis,Pulver, GI30.1I. Starrll, :Baltic, taking part in .the replOval of Louisiana, and in putting outthe fire, and the steam-tug Edwin H. Millard, and another ,tug not .represented in this action, in hauling out the New Orleans. The testim,ony taken is voluminous, and the views of the parties as to the merits of the claims are widely divergent. It would be unprofitable to refer here to the detailq of the testimony. The Louisiana was partly loaded, and the value of the ship and cargo at the time was from $300,000 to $400,000; the value of the New Orleans was about $130,000. Next to the vah1e of the vessels, the most important element was the imminent dange'r to which they were exposed. On this point I have no doubt that there was the most urgent neClessity for imme(liate removal. Neither could have remained where they were without at least very heavy damage. The Louisiana, while she lay next the burning pier, though she hadlatge means, in pumps and hose, for putting out fire, could not have used them effectively there. Several tugs were sent instantly to the seat of danger upon telegraphic calls for assistance; others happened to be near at hand, whose services were called for, and instantly rendered. These services were continued from one to two hours. Three tugs, the Chancellor, Cheney, and Bayonne, which had firstendea\Tored to assist the New Orleans, had failed,when the Millard came to her'assistance. It is doubtful whether any other competent tugs at that moment were present and available' for her use, except the Lennox, with 'which a settlement was made without litigation. Others appeared shortly after. The situation was such·that there was no immedanger to the tugs in rendering assistance to either diate ,or that at least shortly after the vessel; and the evidence, I think, tugs here represented commenced their services a number of other tugs Two others, the arrived ready and anxious to render any aid Fletcher and the Garrett, seem to have been present about the time the Millard arrived. Bllt considering that the officers of the New Orleans had been pressing for iriimediate help; that the previous effurts of the Chancellor, the Cheney, and the Bayonne had been ineffectual, it must be inferred that the Fletcher and the Garrett, if there at the time the· Millard arrived, or before, were either unwilling to take hold,or were deemed insufficient; otherwise it is not credible that their services would not have been used. The suggestion that the New Orleans could safely lie on the. south side of the slip in the berth where the Chancellor had been, and from which the latter had fled in haste, and that removal tothat berth was all that wasdeshed or needed by the New Orloons1 I regard a.s chimerical. The Communipaw was the first to come to the rescue of the Lo'uisia1lll, and the Pulver soon followed; they together pulled her away by a hawser from the burning dock. The Baltic and theStarrs soon went alongside; they were necessary to keep her from drifting away with the tide or against other vessels; and both, at the master's request, played upon the fire and assisted in putting it out; the Starrs being mosi serviceable for tn_at purpose, but arriving later:' . Although there was no special danger to any of the tugs in rendering their assistance, there is. always some danger to tugs in going in the immediate vicinity of burn-.
RUMBALJ, 'II. PUIG.
ing wharves or ships, from a variety of causes. The ordinary insurance is thereby forfeited, in case of loss while rendering such services. The element of danger to the tngs cannot be whoUY ignored. The chief considerations. however, in this case, in favor of the tuge, are the urgent necessity of immediate aid to the steam-ships, and the certainty of very large loss unless they had been towed away at once. Every minute's additional delay in the removal. of the steamers would probably have cost them from $500 to $1,000 additional damage. On the other hand, there was no considerable difficulty or danger to the tugs or to the men in rendering their services; and very shortly after these tugs came, other tugs arrived, which would have been glad to render similar, though somewhat later, services. The general principles that should guide in making up a salvage award are stated by Mr. Justice BRADLEY in the case of The Suliote, 5 Fed. Rep. 99, as follows: "Salvage is the reward granted for saving the property of the unfortunate, and should not exceed what is necessary to insure the most prompt. energetic. and daring effort of those who have it in their power to furnish aid and succor. Anything beyond that would be foreign to the purpose and principle of salvage. Anything short of it would not secure its obdects." Bearing this principle in mind in both its aspects, I find, upon all the evidence, that $2,000 will be a just award to be paid by the Louisiana. the New Orleans was of much less value, she was in greater danger, from the strong north-east wind that blew the fire directly towards her. I allow $2,000 to be paid by her to the Millard, in addition to the small sum already paid in settlement with the Lennox for the minor of the latter. The sum to be paid by the Louisiana will be divided among the several tugs that assisted her as follows: To the Communipaw,$800; to the Pulver. $600; to the Starrs, $300; and to the Baltic, $300. Of the amounts awarded to each tug, three-fourths will be paid to the owners, and one-fourth to the master and crew, in the following proportions: Four parts thereof to the master or pilot; two parts to the mate or foreman; the same to the chief engineer, and one part to each of the other hands. See Markham v. Simpson, 22 Fed. Rep. 743. Decrees, with costs, may be entered accordingly.
RUMBAJ,L 'II. PUlG. 1
(DiBtrict Oourt, 8. D. New York. March 28. 1888.)
.DKmJJnu.GE-LIABILITY OF CHARTERER-FAILURE TO FURNISH CLEARANCE PAPERS-CUSTOM AND USAGE.
A vessel's lay days expired on Saturday. Her loading was completed on Friday, but her clearance papers were not furnished by charterer until Monday afternoon, and the ship sailed Tuesday. The charter provided that charterer should be liable" for any detention of the vessel by his default" after the
'Reported by Edward G.
Benedict, Esq., of the New York tiar.
ofths Jay days·. E;vi4ence was of the a C,uSt(lID allowing a charterer one day after t)le loadmg IS completed In WhICh to fur', nish necessary papers, and charterer claimed that he was: entitled to one day for furnishing papers after tbe expiration of the lay days. , Held. that under the above clause of the charter a detention of clearance papers would render the charterer liable.' Held, further, that no custom was proved. or would be 8uetained; alloWing charterer more than one day after the loading is in fact or until the end of the lay days, if thILt be later:. and that a ship cannot be detained after her la:(days have expired. without compensation, when the loading has been actually completed more than a day previous.. Charterer was therefore held liable for one day's demurrage. .
Wilcoz, .Adams Macklin, for libelant. Ullo, Ruebsamen Hubbe, for respondent.
BRowN,J. The respondentchartered the libelant's)ark Lillian,agreeing to. pay $60 per day "for any de.tention of the vessel.,by his default" after the expiration of 15 lay days. The lay days expired on Saturday. August:3!, 1887. It was the tofprnish the mastercertaindocuments in order to enab4l;her to procurelier..clearance, and sail for her$panish port. Her loading was completed early on Friday. During Satlirday deI1'lands were made upon the respondent for the necessary documl:!nts.Thet were not furnished' until Monday afternClOD, just :in :time to clear at the custom-house; but not in season to make it practicable to sail until the next morning. Evidence was given of a general practice and undefstimding in accordance with a rule of the produce.exchange that allows, charterers one day after the loading is completed jin which to furnish necessary papers and\ documents. The reason oHMs rule was stated to be that it is found· generally impracticable to obtain thenecessaty bills and documents at the moment the loading is completed. There was no default in this case as respects any of the exptess clauses of the charter in regard to loading; and the charter stated nothing in regard to furnishing papers and documents. It cannot be doubted; however, that it was the charterer's duty to furnish: these 'papers. ·'The 151l1y days were for the purpose of loading. Hut eral clause giVing demurragewllB designed, I think; to bind the charterer for the'negltlct of any duty required of him to enable the vessel to sail. . . ' For the respondent, it is claimed that he was entitled to one business day in which to furnish the:ship'spapers after the lay days had expired. That, however, is not the language of the produce exchange rules, nor, as it seems to me, its intention, where the loading is in fact completed before the lay days have' e:lCpired. In some cases, where the time to complete loac;lipgisadvertised,it is the practice to allow desired changes of cargo up to'the last momerit; and when that' is don'e', the charterer perhaps shoUld nQtbe held in default, as respects a custpmaryobliga,tion, until he has hadthe customary.additional day to comply with it. The proofs show in .this caSe that,thEl)oacllng was entirely cOmpleted early on Friday The ·bills of lading were: then signed. .Tqere; is no evid,ence more 'loading of the' vessel was designed ,or expected. The no binding forc,e.. But may be reproduce exchange. rule of
ferred .tp as an. aid in. understanding thEi' custom' testified to, and I do not think is any custom different from that rule. Looking at all the 13vidence, I do not think there is proof of any custom that warrants more than the allowance of one additional day tt) furnish the ship's documimts after the loading is in fact completed, or until the end of the lay days, if that be later; and that the ship cannot be detained after the lay days have expired without compensation when the loading has been actually and practically completed more than a day before. The reason of the custom and of the rule iIi that case fails, and it becomes unjust to the ship to enlarge the time, because that would be practically to extend.the stipulated lay days without cause; and no such alleged custom could be sqstained. 1 must holcl the respondent, therefore, in default for not furnishing the ship's necessary decumentson Saturday. As he had the whole of that day, however, in which to do it. the following day being Sunday, the ship couldnotbave sailed until Monday morning. His delay kept her until Tuesday morning, and the libelant is therefore entitled to one day's demurrage, viz., $60, with interest and costs.
THE PRINCIPIA.· ALEXANDRE
11. THE PRINCIPIA.
(District Court, S. D. N6"IJ) York. March 28, 1888.)
The phrase "working hours" in a clause of. a charter-party means tbOllll hours during which work is ordinarily done about the business to which the clause relates, and is to be construed according to the custom of. the port a8 to the working and hauling of. vessels in loading and discharging.
SAME.:.-BuRDEN OF PROOF.
HOURS "-CUSTOM OF PORT.
In the charter-party: UDder which libelants chartered claimants' steam-ship P. was a clause provIding that "in the event of damage preventing the working of the ship for more than houfs"payment of. hire should cease till she should be again tit to resume her service. The steam-ship, having broken a propeller blade, was dry-docked f.or repairs on the afternoon of Saturday, and was taken off on Monday afternoon. Libelants claimed a rebate of charter money for the three days the vessel was on the dock, and this suit to enforce it. claiming that "24 workin¥ hours" meant hours durlOg wnich work might possibly go on, i. e., consecutIvely, night and day Claimants contended that the phrase meant only the ordinary working hOHra in the handling of a ship in port, and that. on this construction, the vllssel's repairs had not detained her for 24 working hours. Held, that the burden was on libelant to prove his interpretation of the clause. and that it was not proved.
In Admiralty. Action for rebate of charter money. A. O. Salter, for libelants. R.D. B'enedict, for claimant.
tReported by Edw,u'd G. Benedict, Esq., of
New York oar.