THE ANN L. LOCKWOOD.
limited credits provided by the respondents in London to meet Casuso's drafts; and these were the accidental causes of thlJ delay in the receipt of the bill of lading that caused the loss. Had the master signed the bill of lading as presented, even without qualification, no claim to these large consequential damages that accrued in Philadelphia could, I think, have been maintained; because they were not the natural consequences of the master's act. The claim would have been limited to the value of the shortage in weight; and any such liability for shortage is precisely what both vessels stipulated against upon the face of the bills of lading. This was notice to everyone, the respondents' agents in London as well as others, of the liability to such shortage; and it was all the notice that the master was called on to give, under the circumstances of this case. The libelants are entitled to a decree for the stipulated freight as the charter money earned by the ship's right delivery of cargo, with interest and costs; the decree to provide for an as!'lignment by the libelants of their claim and lien for freight upon the proceeds of sale by the collector, on defendant's payment of the amount of the decree.
THE ANN PEARCE
(Di8trict Court, D. Delaware. December 28,1888.)
A vessel at least six miles from shore, submerged from midships to bow, her running rigging overboard and snarled fast, her boat gone, her cabin, fore· castle, and galley full of water. a distress flag set, and deserted by her crew, who had left no signs of an intention to return, and were not visible, is prima facie derelict and abandoned, though she was anchored, and her master was intending to return to save her, and had telegraphed for a wrecking vessel to assist him.
The respondent. a strong, well·equipped vessel, found a vessel in distress, and abandoned by her crew, about six to ten miles from shore. Respond· eut's master, discerning no signs of the crew, who were ashore ata life-sav· ing station partially hIdden behind a small hillock, and there being no sign when tbe vessel was abandoned except It live dog, took her in tow. During the following night the tow-lines parted in a gale, and the crew placed on the distressed vessel were forced to abandon her. She was afterwards found adrift, and taken to port. Held, that the respondent, having acted in good faith, with reasonable expectation of saving the vessel, was not a trespasser, or liable for the injury caused by the gale that compelled her abandonment.
In Admiralty. Libel in rem by George B. Pearce, master of the schooner Carrie Hall Lister, against the schooner Ann L. Lockwood, for injury done the tister by a gale, while in the possession of the LoCKwood. Ohaa. O. Lister, Levi Bird, and Henry R. Edmwnds, for libelant.
by Marks Wilks Collet, of the Philadelphia bar.
I''EDERAL REPORTER ·.
Alfred Driver and J. Warren Coulston, for
Carrie Hall Lister, with a crew Of four men all told, laden with 182,000 feet of lumber and laths below decks, at about 5 o'clock A. M,o onthe2d of October, above 1883, while onavoyage from Bowdoinham, Me., to ,New York, and 'YhEm off Long Island,. encountered a. strong gale from the south-east, with a. heavy sea, causing her to pitch and plunge so that her master was compelled to bear away towards shore.,At12 M. on the same day she lost per mainsail, main-boom, and. gaff, the main-peak were cut away, and, the wind working round more to the southerly, t1:le deck load began to shift,breakinK off her stanchions, and 100sthe At this time 'she.began to fill, and at 2 P. M., being water-logged and soaked, ran into land until sundown. The kedge anchor was tirst let go,hut, .this failing, to hold, the starboard was stopped anchor. was, got ()ver with 30 fathoms of chain, and at 9 P. M. in 15 fathoms of water, at from 5 to 7tu,illlS from the Be)1. port life-saving station. The Lister was now submer'ged' from midships to bow, and unmanageable. One-third of the deck load had been waE'hed overboard, and the crew, without water or provisions, passed the night on deck until sunrise the next morning, when they all left in the yawlhoisted on the foremost backboat for shore, leaving a signal of stay, but without any notice of their intention to return, or of where they had gone. UPQO approaching the beach, the·stuf being high, they anchored the boat on the bar, and signaled the life-saving crew for assistance, who:came off in their surf-boat, and carried them to the station. The captain of the Lister immediately sent a telegram to ,New YorJr, re.quesijng send a tug to ,tow the schooner to New York, and three hours afterwards received a reply that the steamer be sent atonce. In the Olean time, while, the crew of the Rescue Lister were 'at breakfast in ,the station, at about ,9 Q'clock, the schooner , Lockwood sailed up to the Lister, and slipping her anchor, took her in tow, and sailed off in an easterly directioil. As soon as the captain of the Lister saw, or was informed of this, he counterlllanded the order for the tug. The Lockwood subsequently abandoned the Lister at sea; and w,hen the latter was afterwards found at Newport, R. I., into which port she had been f./ili;en by the United States revenue cutter, Dexter, she was materially damaged and despoHed,as specifically set forth in the libel; . andit is for the damage and. the consequent detention, together with the . loss of the personal effects of the crew, amounting in all to $5,681.79, which'occurred between th1ltimetheLockwood wrongfully took the Lister away from her anchorage', and the finding ofthe vessel at Newport,that reparation is now sought: . The libel. alleges thattlle Lister was securely i anchored, was in no itnnfediate danger, that her master and crew had left bel' onlStemporarilyfortbe purpose of getting provisions and of procuring assistance to tow her to New York', and. that she was neither derelict nor abandoiled; The Lockwood was therefore a trespasser, and· not justified in interfering. '
The evidence on the The Lockwood, a three"masted schooner; loaded, with 500 tOlls of coal, was bound from Philadelphia to Bostori; when shefellin with the Lister, iil the condition already described, distant about 11 miles land, the wind being north-west, wIth II: heavy sea rolling from the south-east. ,,'/'>-' mate and two seamen were put on board the Lister. They found her port anchor lashed to a ring bolt, aud the starboard anchor gone, the chain hanging out of the hawse-pipe, the end of which could be seen as the vessel rose with the sea; her running rigging was overboard, and snarled fast to the vessel, and towing along-side; her boat was gone; the deck load shifted; her cabin, forecastle, and galley full of water, lind water in her hold; no lines or hawsers, and no provisions or water on board. With the exception of the main jib, all the sails were gone' or useless. She was taken in tow as a water-logged, unmanageable wreck, abandoned and derelict. The master of the Lockwood had previously examined the sea and land, and saw no human beingorcratt in s,ight, excepting the fishing steamer Joseph Church, which had made to'Yards the Lister with the intention of taking her in tow, as derelict, to the nearest port,but was anticipated by the Lockwood., Everything moyable in the Lister's cabin was afloat, and the secretary in the captain's room broken open, from which the ship's papers were taken by :the mate, and subsequently deposited in the custom-house at Boston" and from thence forwarded to Wilmington, in this district, where she was enrolled and licensed. Soon after the Lockwood' had started ",ith 'her tow, a second hawser was attached to the Lister, aM the towing ptoceeded favorably until 7 o'clock P. :M., when the wind canted, and came out from the north' north-west 'tip to the north,and blew a gale, #ith, a heavy and rough sea. 'fhe night was very dark, and at 8 o'clock the towing hawsers, by reason of the vessel ,vorking in the sea-way, parted. At the same time the deck load on the Lister began to work,and, the lumber cutting the lanyards, one part of the deck load werit The Lister then righted on' the starboard, side, and the mahul1ast fell forward. The mate and the two sailors, who had remained on the Lister up to this time, tearing that she would turn bottom up, left to save their lives, and drifted about in th6 storm and darkness untU 3 o'clock the next morning, when they were taken aboard the Lockwood, which, after the Lister had broken loose, was .sailed by the wind, and, tacked for several hours in order to rescue the men. The men refused to go on the Lister again. and the Lockwood, seeing nothing of her., kept' oft' on her course to Boston. When the hawsers parted, the Lister was, between Montauk and Block ,Island. The Lockwood had her and jib blown away duringthegale. On the 4th of October, atl'p'; M;,' the captain of the Rose Brothers, a small schooner of 19 tons, of ]31.ock, Island, seeing a wrecked 'vessel adrift" about 20' miIeB wpich ; afterwards proved to be the Lister, went to her relief, and unavailing attempts finally succeeded in boardin'g her, a, hawser fast to her, just before dark, intending to tow her Harbor, or Newport. Follr of the crew of the Rose Brothers remained on '
the Lister while she was being towed, until the hawser parted, not long after dark. The Rose Brothers laid by the Lister all night, and the next morning took her in tow again, about 9 A. M., when the United States revenue cutter, Dexter, appeared, and, taking the Lister in tow, carried her into Newport, arriving there at 7 or 8 o'clock in the evening of the same day. The owner of the Lister settled with the owners of the Rose Brothers, paying them $600 for salvage. The Dexter charged nothing, save for fuel and oil. Capt. Monsell, of the life-saving station, and the captain of the Church both agree in thinking that the List.er was at anchor when the Lockwood first approached her, because her head was kept to the wind, which it would not have done, if she had been adrift. Capt. Monsell also estimates her distance from land to have been from eight to ten miles. Capt. Gabrielson, of the Dexter, and Wrecking Master Waters, both say that they would have taken the Lister in tow, under the same circuman abandoned vessel; the former qualifying his opinion by stances, saying that he should have first gone to the life-saving station, had he known one to be near, for information, The captain of the Church was within a few miles of the land wherihe first sighted the Lister, and saw tiQ one on shore. The life-saving station is about 100 yards from the beach, and somewhat concealed by a small hillock. The men from the Lockwood (oul}d nothing on the Lister to show how long she had been deserted by her crew, excepting a live dog. In the,c.ourse of the argument, much reliance was placed by the libelapt's proctors on the evidence of the Lister being at anchor on the morning of the 3d, an4 on the provl:ld intention of her master to return and endeavor to save her, to take her out of the category of derelict vessels, The question of her being anchore<;lis not wholly free from doubt, but, conceding the fact that she was, yet, in her then condition, being partly under water and unmanageable, in the open sea, at the distance of eight orten miles from shore, and deserted by her crew, she was, primafacie, derelict and abandoned, The intentiop of master to procure assist- . mce to take her into port might have affected the amount of salvage to be, awardl:ld to the Lockwood, had the latter succeeded in the attempt to reaQh Newport with her in tow; but such intention was unknown to the captain of the Lockwood, who could only judge of the necessity for his from what he saw before and around him, viz., a helpless wreck, sttre to be lost, soon or late, by ocean storms, if allowed to remain where she was, without aid·. The tempestuous weather of the day before had nearIydestroyed her, and the captain of the Church says it lQoked on the morning- of the 3d as if there would .be plenty of wind before mght,-aprediction that was fully verified. The life-saving station wllS not in sight, and there is no evidence that its exact location was known to the Lockwood. The two vessels were so far from land that On shore could not be seen with the naked eye, and Capt. Monsell, with aid of ll. glass, was una.ble to discern the movements of the men who boarded the Lister.· Thadhere was considerable apprehension aInotigthec,re\v of the Lister that she was in some danger, if not in im-
'RHE ANIt> L. LOCKWOOD.
mediate peril of being lost, is evident from her master's answer to the question: "Did you intend to come back to the vessel? Answe1'. That is the reason we did not take our clothes. Mr. Kirk said that morning. before we started to go asbore, all he cared about was to get his foot upon dry land. I said to him, ·Look here, if you don't intend to come back to this vessel. we might as well stay while we are here;' so he said he would come back if I wanted to He said he didn't know I wanted to COllle back. I told him of course I wanted to go back. I didn't intend to throwaway the vessel if I could . save it." He admits that it wal!!. impossible for himself and crew, without additional assistance, to save the Lister; and two disinterested witnesses, Capts. Gabrielson and Waters, testify that a vessel in her condition, even at anchor, in the open sea, is never safe,-apart from becoming a dangerous obstacle to navigation. There is some vagueness about the definition of "derelict," when applied to vessels abandoned at sea, but the general rule is that a vessel which is abandoned by her crew, without any purpose on their part of returning to the ship, or any hope of recovering it by their own' exertions, comes strictly within the definition. 2 Pars. Shipp. & Adm. 288. It has also been held that, if a ship be left, though not derelict in a nicai sense, one who in good faith takes possession as' salvor is' not a tres· passer, but has his reasonable claim for salvage, according to: the good he actually does. Id. 291. And the same doctrines have been recognized by the admiralty courts of the United States. The 'SfJIU1Wr, 1 Brown, Adm. 372; The John Gilpt"n, Olcott, 80; The Island CUy, 1 Black, 121; The Grace Brown, 2,Hughes, (U. S.) 112; The Laura, 14 Wall. 336; The Boston, 1 Sum. 336. Perhaps the law on this subject iSJnowhere more clearly and concisely stated than in the case of The Bee, 1 Ware, 340, where the court says: "But when the owner, or the master and crew, who represent him, leave a vessel temporarily, without any intention of final abandonment, but with the intent to returnand resume .the possession, sheis.npt ,considered as a derelict, nor is the right of possession lost by such temporary absence for the purpose of obtaining assistance, although no individual may be remaining on board for the purpose of retaining the possession. Property is not, in the sense of the law, derelIct, and the possession left vacant for the finder, until animus revertendi, is finally given up; the spes reduperandi, is gone and The AqUila, 1 C. Rob. 41. But when a man finds property thus temporarily left to the mercy of the elements, whether from necessity or any other cause, though not. finally abandoned and legally derelict, and he takes possession of it with the bona fide intention of saving it for the owner, he will be treated as a trespasser; on the contrary, if by his exertions he contributes materially to the preservation of the property, he will himself to a remuneration according to the merits of his service as a salvor." . The respondents, finding the Lister i.n distress, and without anyone on board, had just grounds for believing her abandoned, and lawfully took possession of her as salvors, and, had they succeeded in taking her into port, wOlild have been entitled to salvage compensation. The honesty of their motive must be judged by the situation and condition of
the List'e'r;B.i!Hbey saw her on the ltiorning of the 3d, and by the prornprness, diligElnce, care, and ability with which they undertook the work ofsalvage;'Th!e -Lockwood was aelrol1g and well-equipped vessel, and in alIprobtibilitywould have succeeded in saving the Lister, if the storm .of the ensui):)g hight had not intervened, as is evident from the fact that the favorably for several hours before the hawsers parted, and the Lockwood was compelled by stress of weather to seek her own safety j after the loss of some of her sails, and the exposure of her mate and the two seamen to serious personal danger. To hold the respondentEl ,to. bl;l trespassers under these circum&tances might establish a dangerous 'precedent, and, should such a rule become generally prevalent, it would prevent sea-faring men in the future from making any effort to rescue distressed vessels, and thus contravene the hitherto settled policy of the law, which has always encouraged salvage services by giving to tbem the most ample rewards. The penalty of total failure in endeavoring to render a salvage service is to forieit all compensation for work and.labor, for risk of life and property, and for detention; and this has been cQnlilidered sufficient to deter strangers from interfering to save property at sea, unless they believed their interference warranted, and that they wopldbe able to render aid. To increase this penalty bya.ddil1g. to iithe .punishment of trespassers,' in a. case like the present one, where the act cOmplained of has been done in good faith. and was bl'lgunwith reasonable expectation of success, would DOt be consistent or good policy. It is unnecessary to consider the defenses of laches on the part of the libelant bringing his suit, and ofwllont of jurisdiction. A decree will be entered disJUissing the libel, with costs.
THEe. H. NORTHAM·.
York. January 9, 1889.)
. (DiBtrict Court,
7 AND 8. The .:N·· overtaki,ng tpe tug L.· with stow. passing around Negro Point in the flood-tide. and a H. W. wind, attempted to pass'the L. to t'he left, after 8 signal of two whistles. wliich she claimed to have been a&sented to by ,8 ,replYQl two. The steamer E. C. W8S 8t the same time ·.approaching near from the opposite direction. having. the right of way on the N.'s port side· · ThE! threll.boats collided. The H:. struck the L,'s port quarter; the L.having vetlred t,Q"JIOrt"het tow struck the E. C.'s port waist. lield, (a) both to blame for vlOlatJDg InSpectors' rules 7 and 8.
CQLLTBION-:-0VERTAKrNG AND PASSING VESSELS-INSPECTORS' RULES 8AME-DANGEROUSCIIANNEi."'::'HELL GATE. . ,
sufficient tor. safe navigati.on, and that the N. WIIS to blame for p;oing on faster than thidi. yeforeit·was plain' that the space and the L.'sactual course made it safeto8ttempt to pass her. : 8., 8A.ME:.-.:oCROwDING. .' . .' . . : (c) 'That th.e L. was als9 to blame forstarbollrding probably by mistake;'tllat She was b'olind in any event not to crowd upon the No's coutse,
(b) That :tbe,.place was dailgerous.'p,nd the Passage to the left of the L.not