TJlE ,JOHN _ COTTB.ELL.
mate's testimony that on arrival the wood had not dropped away from any others except the two injured, will not permit the inference that it arose from rough weather alone; since in, that case the wood' between other drums would have been similarly affected.. The only fair inference of fact is that the wood between these two drums was Dot secured uaual and proper manner,and that negligence in this respect was the cause of the wood's dropping out, and thereby of the leakage which caused the loss. The Bnrgnndia, 29- Fed. Rep. 607; The Surrey, Id. 608, and note. In The Polynesia, 30 Fed. Rep. 210, there were no special circumstances indicating negligence on the part of the ship. The libelant is therefore entitled to a decree for the amount claimed, with interest and costs.
THE JOHN COTTRELL. THE STARI,IGHT. LAVERTY
THE JOHN COTTRELL and THE STARLIGHT.
D. New ;York. April 21, 1888.)
SHIPPING-CARRIAGE OF GOODs'-LIABILITY FOR Loss.
Thalighter J. C., with a of iron bars, moored outside of -another vessel,lying at·e. wharf. As the,Jide went down, she took the bottom. or S,OII\C obstruction,. gradually careened. and lost her deck-load overboard. She selected the mooring place herself, which was an improper one, and was left without a watchman. Held. that she was responsible for the loss of the iron.
On being libeled in this suit, the lighter brought in under the fifty-ninth adII\iralty rule the barge S., which was the vessel along-side of which she had moored. claiming that the barge, being moored unskillfully, had careened agaiust her, for.ced down her rail. and thus caused the loss of the deck-load. Held th\tt,' even had the accident occurred in this way, the barge S. was not liable, as she owed no duty to the lighter, which had moored along-side of her own volition, without request or permission, and at her owu risk. Being brought into the suit by petition of the lighter C., Mld, that the barge should recover her costs of the C., and' not .of the libelant.
. . . . .',
2. COLLISION--'--AT PIER-C08TS"';'FxFTy-NINTH RULE.
In Admiralty. Hyland Zabriskie, for libelant. Edwin G. for the John Cottrell. Goodrich, Deady &; Goodrich, for the barge. BROWN, J. In July, 1887, the libelant contracted with the owner's
to transport for them a quantity of iron bars from the Pennsylvania'Rail-
road, Jersey City, to Cornell's yrharf, foot of Twenty-Sixth street, North river. The libelant thereupon made 1\ subcontract with the captain of the lighter ohn .Cottrell to' transport the iron. . The cargo was loaded and taKen to. the basin in: which Cornell's wharf is located, where the
Edward G. Benedict, Esq., of the New York bar.
lighter arrived Ilbout 7 o'clock in the evening of the 4th of August, The basin is formed by a causeway built of stone and rubble, which, CUI ri 6 outward and to the northward from the foot of Twenty-Sixth street, ·u.;; up in a line with the river for about 1,000 feet, leaving but a narrmtil.let of from 40 to 60 feet wide along the front of Cornell's wharf, betVTeen that and the causeway. The wall of the causeway was not vertical, an:1 the testimony is not satisfactory as to the actual width of the basin in front of the wharf. When the Cottrell arrived thtlre was no one present to give directions where she should go. Another vessel was lying by the wharf to the southward, and there was not room for another to lie A little to the north of the wharf, or about opposite to its northern end, the barge Starlight was moored along-side the causeway, but angling a little towards the wharf, and the captain of the lighter concluded to moor along-side the barge. About 4 o'clock on the following morning the lighter careened towards the barge to such an extent that the iron, which was loaded on deck, slid ofl' into the water. This suit was brought to recover for the loss and for the damage to the iron thereby occasioned. It was claimed by the lighter that the barge was improperly moored; so that, by slipping upon the rocks and careening 'outward, she 'caught the lighter's rail, and gradually pressed her down until the iron was precipitated into the water. I do not think the evidence sustains this contention; nor, if it were true, do I think the barge could have been held answerable for the damages. Even if she had been moored unskillfully, having reference to the peculiarities of the place, and was liable to take the ground and careen at low water, she owed no dutyin that respect to the lighter, which moored along-side of her of her own volition, without request or permission, and, as I find, at her own risk. The duty of watching, as regards any results of grounding, was the duty of each as regards her own .safety. When the lighter arrived none of the barge's men were on board, but only a watchman for the night. As against the StarlighUhe libel must therefore be dismissed; but inasmuch as she was brought in as a party defendant on petition of the Cottrell, under rule 59 in admiralty, the Cottrell,and not the libelant, must pay the costs. There is a conflict as regards the precise place where the barge and There is conlighter were moored, and as to the cause of the siderable evidence to show that the barge extended into the narrow entrance abreast of the wharf, and; was angling a little across it, so as to bring the lighter's bows very nl;lar to the upper end of the wharf; and with the fall of the tide the side of the lighter caught upon some projecting, log, thereby causing her to careen to starboard, as above stated. This theory finds sou16cqnfirmation in the fact testified to by the .barge's witnesses that .neither the barge nor her lines showed any tl1l-ces of change or injury such as must have happened had she slid dO.Wll upon the sloping rocky, botto lll at the low ebb, when this accident wok place. This is sustained by the majority of witnesses, and, lam. inclined to think, is the more probable account of the accident. The lighter was not moored in the usual or customary place, 01
in the usual manner. She was left without a watchman, or, if the man on board was intended as a watchman, he wholly neglected his duties, and got on deck but a few moments before the iron went overboard. The evidence shows that the iron was lost after several hours of gradual careening of the lighter, and, as would appear from the almanac, at just about low water. From whichever ofthe two causes assigned the accident happened, this was not reasonable and proper care for a cargo like iron, liable to slip off the deck. Without considering, therefore, the question whether the lighter, in a case like the present, was under the obligations of a common carrier, which many late authorities in this country would seem to sustain, (see Hutch. Carr. §§ 58,61; Browne, Carr. §§ 74, 32, note; Sumner v. CaBWell, 20 Fed. Rep. 249,) I think the lighter must be held answerable for not in the first place making the necessary inquiries and examination to obtain a safe place to moor for the .night, in a place where the circumstances were evidently peculiar and also, after having thus moored withoutuscertainment or inquiry, fot being left without any watchman to look after her safety at night dUring the rise and fall of the tide in such a place. The libelant is entitlEld to a decree against the Cottrell, with costa.
THE GIULIO. 1 PAOLII,LO t1.
THOUSAND NINE HUNDRED AND FORTY BALES OF VEGETABLE HAm. CORMACK
11. THE GIULIO.
(District Oourt, 8. D. New York. April 30, 1888.)
SHIPPING-CARRIAGE OF GOODS-UNREASONABLE DELAY.
A vessel chartered to the Mediterranean and back to New York, put into her home port in Italy on account of stress of weather. Some repaIrs were put on her there, and, after their completion, she was detained three weeks longer, t!;trough acute rheumatism of the master. Held, that the owner was not justified in detaining the vessel in her home port for such reason, without indemnifying the charterer for the expense and loss caused by the delay. A vessel is liable for the fall in market prices during a period of negligent delay on her part, though such delay arose before the cargo was shipped, when the delay was voluntary. and was in the course of the voyage contracted for by the charter, and after it had been entered upon.
Charterers who load a vess.el with return cargo after, a period of nel;l:ligent delay on the part of the vessel do not thereby necessarily waive the right of action which has alrearly accrued to them for the breach of the ship's legal duty of dispatch in fulfilling the charter requirements. '
,Where objection that a vessel has not takana full cargo is not made at the time when objections in other respects are made by protest, any complaint made afterwards on thi, score should be looked upon with suspicion.
'JReported by Edward G. Benedict, Esq., of the New York bar.