equipment for the ordinary contingencies of the voyage, which was rUt'nished by the owners at the beginning of the voyage, the defects of which they knew or ought to have known, and of which the injured seamen did not know, and had no adequate reason to know. Halverson v. NWf!!n, 3 Sawy. 562; The Edith Godden, 23 Fed. Rep. 43; The Neptuno, 30 Fed. Rep. 925j The Yoxjord, 33 Fed. Rep. 521; Couch v. Steel, 3 El. & B1. 402. The claimant says that, if the gratings were defective, the owner had provided close-fitting covers for use at sea, and that, if the captain d,id not use them, it was his negligence, for which the owner is not respomlible. If this leg!l,l proposition was a sound one, it is not a proved fact that the covers were for use except in stormy weather, and I do not think that the weather of July 5th required their use. The libelant is a permanently disabled and suffering man. Let a decree be entl;lred in his Javor for the sum of $2,500 and costs.
THE W-1DAJ,E. ANDREWS et'lMt. 'lJ. THE WYDALE. WALKER et
(Circuit Oourt, E. D. Louisiana.
February 13, 1889.)
TO UNDERSTAND SIGNALS.
A steam-ship ascending the left bank of the river in New Orleans. hi the about to cross. gave two blasts of the whistle on discovering- a tug- and tow. which were descending' the middle of the stream, indicating that the steam-ship would pass io port, andstarboarded its helm. and proceeded ,at half speed. The tug did not understand the course and motions. of the steam-ship and responded with one whistle. indicating that it would pass to starboard. and ported its helm and the helm of the tow. The vessels ap". proached,and the signals were and afterwards the tug again gave .a single whistle. The tug then showed its r!ld light. and the steam-ship gave the danger·signal. reversed its eJ;lgines. and ordered full speed astern... The tug responded with the danger-signal, ordered the helm hard a-port. and put on all steam, but collided broadside with the bow of the steam-ship. Held, r:thateach was in faultin n<;lt'reversing its engines, and giving the danger·sigap,art. as required in c,:se of m!sunderstandi?g, nal when they were 800 by Rules & Heg. Gulf of MeXICO, 1; that the tug- was ID fault ID not reverslDg when the danger-signal was given, as required by rule 2; and that the steam. :lIhip was in fault in entering- the harbor under too great speed, and in persist, ing in gO,ing to the left, in violation of rule 1.
ADMIRALTY-JultisDICTION-DEATli BY WRONGFUL ACT.
In the absence of a federal statute or statute of the state, where" collision ,:O,'Cours giving a lien on a vessel for damages for the death, of a human being , fr9m negligence. an intervening libel in rem for damages for death resulting.· . from suchcol1ision cannot be maintained.
:.IIi Adnriralty. Libel for., damages. On· appeal from district court. Libel by Williit:m M. and others the steam-ship d'a1e,' and intervening libel by Walker & Fowler and others.
;:., .' - (.> .
, W. S. Benediet and E. D. Oraig, for libelants and intervening libelants.
Frank N. Butler, for claimant.
PARDEE, J.The libels and intervening libels are brought against the steam-ship Wydale for damageS growing out of a collision between the tug Ivy, and barge in tow, and the steam-ship Wydale, on the night of the 26th of May, 1887, at between half past 8 and 9 o'clock. A great many witnesses have been examined on each side, including the witnesses on each of the colliding vessels, and a large number of witnesses who were ashore on .each bank of the river, and the testimony, as usual, is very conflicting. After an .attentive examination and carefulconsideration of the whole, I reach the following conclusions 8S to the facts in the case pertinent to the issues presented: The steam-tug Ivy, with the barge Cossack in tow, cleared from her wharf in the ,upper part of the city of New OrleansJol' the port c$fGa.!veston. She swung out into the middle of the river, and ing on her course, when about opposite the French market, in' the city: of New Orleans,she discovered a steam-ship ascending the river,show.; ing a white mast-head light, and a redsroe-light. This steam-ship waS the Wydale, which was coming up the river to the port of New Orleans,; intending to make a laQding in the upper part of the city. When' dja.: covered, the Wydale was near the left bank of the river, following the eourse of navigation, and about to cross over by Algiers point, in Qrder to avoid the eddY' in the bend of the river opposite the point. Both vessels carried the proper lights, and were properly manned and eqUipped. At about the tirnethat the Ivy discovered the Wydale, theWydalealso discovered the tug, which was t,hen showing the two mast-head lights, one above the other, inqicating a tow, and the green, or starboard, light. As soon as the lights ·of the tug were seen 011 the Wydale, she gave two blasts of her whistle; indicating that she would pass to port, audstarboarded her helm , and at the same time put herengmes der half speed. The' tug Ivy responded to the signal from the with one whistle, which would indicate that she would pass to starboard, ported her helm and the helm of thebllrge accordingly. The e,vipence is not satisfactory as to whether the, pilot in charge of the Ivy understood that the Wydale had given onewhistl,e ()r.two Whistles; the pilotinsis1;s that the signal was one whislle,a,nd he: is corroborated by witnesses afloat and ashore. After thisexchapge of signals, the vessels proceeded a sho.rt appmaching each other, when the Wydaleagaiin, gave two signalsofhel' whistle, and tug replied with one whistle. There that thissignal.was first given by the tug, and is evidence in responded to by the ship, but it is not material. whioh one at this time signalled first. Not liking the t\ppearance which the, vessels nOw ,pre,. sented, the tug, again gave a single .Whistle, and ;by this tiJ1Wjorneady, had arounq, so as to show her red light to the Wydalc. The.re. upon the Wydale gave. the three short whistles, Eeversed her eI,lgines,a.nd ordered.full speed astem, The tug Ivy answered with the qaI;lger-s;,gllal, order
'maneuvers brought the'bidad side'oftnelvydirectly in front ofthe steamer; inunediately'the tug went against the bow of the Wydale, whose headway had not been entirely checked. The tug was sunk, nearly aU the crew esaapimg by way ofthe barge; a few, however; went into the river, all being up safely, except the son of one of the proprietors of the Ivy, who, in some way, fell between the barge and the tug, and was c;lrowned.·, The Ivy and all the property aboard was a total loss. '1'he barge Cossack, which was in tow of the Ivy, escaped with slight damages:, and the loss of a hawser. On these facts, I have no doubt that both vessels were in fault. Rules 1 :and 2 of the rules and regulations for the government of pilots of steamers navigating the rivers floWing'into the Gulf of Mexico, and their tributaries, are as follows:
" II approachi ng each other from . opposite directions, the signals for passmg ,shall be one blast of the steam-whistle to pass to the I1ght, and,'two blasts of' the steam-whistle to pass to the left. The pilot on' the as<lendingsteamer Bhallbe the tirstto indicate the side on which he desires to pass; but. if the pilot on the descending stt'amE'r shall deem it dangerOilS, to ,take the side the pi)ot of the ascending steamer. he shall at once indicate his, stel\m-whistle tl,le side on which he desires to pass. !\l1d the pilot' on the 8$ceridillgsteampr s'hall govern. himself accordingly; the descendingsteamel' being dt'eIDedto have the right of way. .But in no case allall steamprs attempt to pass each other until there has been a thoroughunderstanding as to the side each" steaID",r shall tal,e. The siKnals for passing must be made. answered. and understood before the steamers have arrived Ilt o( ,SOD yards of . "/lule 2·. If from any cause the sigllals for passing are not made at. the proper time, as 'provided in rule, 1. of should the signals be given and not promptly understood, from any cause whatt'ver. and either bOllt beconie imppriled thereby, the pilot o'n either sleaIDer Inay be the first to sound the alarm or danger-signal. which shall consist of three 01' m\Jre short blasts of the steam-whistle in quiclUitlCQassion. ,: Whenever the danger-signal is given, thljl,engines ,of both steamers must be stopped and uacked until their headway lias 1:>een fully nor sha1l of either steamer be again started until'the steamel's can safely 'pass' each other." . '
It is apparent that from1he first exchange of signals there was a misunderstanding on the part of the Ivy. It clearly appears from therestim of the master and pilot. that they did not understand the course lny and motions of the Wydale; it was a subject of remark between them at tM time. It was then 'the duty of the tug. under the aforesaid pilot rules, to have given the danger-signal, and to have reversed its engineEj until signals could be exchanged and understood. It is clear that 1"'1 had; reversed her engines, and given the danger-signal when her masfi'el"and pilot first saw that her passing signals with the Wydale were was misunderstood, there ,,'ould have' been' no;collision. The tug I also clearly in fault in ·not. with the positive requirements of tt1e' 'said second rule by stopping engines. and backing, when the given;, Instead of so doing, she put on'all steam, a'Dit"went It 'maf:be that at that tinle the collision was so immi:tlel1t' that" it would have resulted ;anyhow; btlt, even if this 'be so, it is
. THE WYDALE.
"nil for !violation of the pO,sitive,' peremptory: JDade by . petent ailthority to govern such cases·. ,Jt. is apP/Jrren,t al,so tJ;lat the Wydale. fault. While the took was the course to ascend th.e river to her '\Va.lJin fault for tering a,crC!wded harbor. under toogrel:l,t rate of speed, due regard to the. obstacles that might be in the way·. $out.hern 18 How. 584; The Oityoj Paru,.9Wall. 634; TheCorBica, Id. 630; The Adriatic, 107 U. S. ,512,2. Sup. 9t; Rep. 355; 'J!he Wail. 672. '.l'he Wydale was also clearly,inJa,ult for. disregarding the pil<;)t rule abovequeted, under 'Yhich had right" of the signals of the Ivy, to persistin going to the left; find. under t.he second.rule theWydale was and reversiJ,lgher .engines,.an.d the danger-signal, while the steaJDers wer/a,atJea;st..sQ,O yards apart, when it was.a,pparent that the , sels, were . " :"., ' " " , vessels i b/aiQg ill fa:ult, the Jule is 4l:l.wages .must be thel11' The damages in s.ist of th,e loss of thetuglvy, the of the the pilpt.,and of the crew, and the ;damagest<> ,the barge. ,The y<We s,uflere,d no that arising from delay, . no. claiQ1in A great deal of is in record tQ;th El value ,of. The libela.nts claim i tt appears that sne.)vas for the during the Rebellion, and to. private ,:ariqus up the, time of her loss, at different prices, ranging ,(rOUl $5,000 10 $pe.seems to. have been in'constantuse,- and to have received ,at times . , '. ; " , , ".' .. . . ,: . ''.'" l; . large and extensive repairs. In the dIstrict court the whole . ,to a ;master wbo. the, .value ()f, tpe the, time ofher loss to be $6,437:,97., pn to the , report, the found tllat her value',llnder .the ,is a ,argument this her sR-9uld notPe a.t over $4,000 1 oJ;ltp.e ground that the last one rate. There is .that ditions attending that sale, and that since that time s0111e considerable repairs have been placed upon the vessel. Considering the whole of the evidence in this record, I am of the opinion that the district judge was correct in his determination of the value. Other damages suffered by libelants and intervening libelants were referred to and reported .by the commissioner. who allowed various amounts, and to his report there seems to be no well-founded objection, except in the case of Walker & Fowler, intervening libelants. With regard to the claim of Walker & Fowler, who have joined in the appeal to this court, the commissioner reported that they had suffered damages for towage, loss of hawser, and repairs in the sum of $163.40. Their claim, in addition to this amount, is for demurrage, 18 day!'!, at $50 per day, making a sum of $900; damages for failure to deliver the cargo on time, $750j and costs of storing 272 tons of cargo, $190.40. The evi-
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I ' ,
dence does not show that the barge was necessarily delayed any number of days on account'lJf the collision. Of course, it was delayed some. Three days were sufficient time to make the little repair that was necessary, communica:te with owners, and hire another tug; and for that time I find that the intervening libelants; as owners of the barge, are entitled to demurrage., seems to point to $50 per day as the proper demurrage, and, under We circumstances, that amount will be allowed. The other items of damage will be taken as reported by the commissioner, as nosbbstantiaJ dispute is made as to their correctness. There remains only to be passed'upon the claim of William M. Andrews and wife, father and mother of the boy drowned, who brought their intervening libel 'against the Wydale, claiming damages for the drowning of their sOn. So filT as the facts are concerned, there is no qtie'stion hut what the drowning of this lad was one of the direct results of the collision; but an exception has been filed to the demand in this case, and, under the decision of the supreme court, of the United States . incase of The Harrisburg, the, exception must be maintained., "In the absence of an act of or a statute of a state, giving the right of Btotion therefor, a cannot pe maintained in the courts of the .united' States 'to:tecoverdamages for the death, of a human being 'ontbe hig\"! seas or on Waters navigable from the sea, which is caused by negligence." See 119 "0:8. 19V, 7 Sup. Ct.. Rep. 140. ,As there is no statute of the United States, nor ofthe state of Louisiana, within whose 'tertitorial limits the collisioIi occurred, which gives a lien upon a vessel for damages on accotmt qnhe death of a human being through negligence, the intervening libel in this case"vhich is a libel in rem, cannot maintained. ' The total damages; therefore, involved in this suit, are as follows: 'Value olthe tug Ivy, $5,850; freight lost, $600; William M. Andrews 10l;;t personal effects, $200; Samuel Church lost personal effects, $145; Thonlas Wood lost personal effects, $80;Walkef& Fuwler, damages to barge and demurrage, :$310AO;, making a total of $7,18.3.40j one-half ot which-$3,592.70-should be paid br each vessel. Tbeaccompanying decree will be entered in tha qase.
BEPUBLIC IRON MIN. CO. t'. JONES.
REPUBLIC IRON MIN.
(Oircuit (lourt, N. D. Georgia.
COURTS-FEDERAL JURISDICTION-SUITS BY ASSIGNEES-CONTRACTS.
An action for damages for the breach of a contract of lease is an action "founded on contract." in the sense in which that expression is used in the restriction contained in the first section of the act of March 3. 1875, which provides: "Nor shall any circuit or district court have cognizance of any suit founded .on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law-merchant, and bills of exchange. " . In an action "founded on contract." brought by an assignee. the declara· tion must show that the suit could have been maintained by the assignor if no assignment had been made.
At Law. On demurrer to the declaration. BrOyles k Johnson, Graham k Graham, and J. D. Ofm,ym, for plaintiff. H(J]!lci'f18 k Glenn, J. M. &; J. W. Neel, B. H. Hill, and William Phillips, for defendant. .
NEWMAN, J. This case has been heard on a demurrer to the declaration; the ground of demurrer being that it is a suit brought by the assignee ofa contract, when suit could not have been prosecuted by the' assignor, and that therefore the court has no jurisdiction of the case. The following is a synopsis of plaintiff's declaration: Plaintiff is a corporationcreated by the laws of Missouri, and a citizen of that state. Defendant is a citizen of Georgia. On the 18th day of August, 1881, A. R. Silva, plaintiff's assignor, obtained a lease from defendant to certain Jand in Bartow county, Ga., which lease was for a term of five years, in writing, and under seal. The purpose of the lease was that Silva should mine for iron ores, have all necessary rights for railroads, houses, dams, sluiceways, etc. Silva was to pay defendant a royalty of 17 cents per ton. On the 6th day of January, 1882, Silva assigned in writing his interest in this lease to plaintiff. On said 6th day of January, 1882; plaintiff entered and took possession of said premises, and after that time performed all the covenants to be performed by Silva; but, notwithstanding this, on or about the 1st of September. 1882, the defendant with force entered the premises, and dispossessed plaintiff. Plaintiff, while in possession, had cleared the ground, opened mines, tested ores, erected houses, machinery, etc., and was by its dispossession by the defendant deprived of the use, issues, tents, and profits, etc. Defendant, after dispossessing plaintiff, commenced, and is still, mining upon said land, and retaining to himself the profits. An amendment to the declaration sets forth that on the 3d day of August, 1881, Silva made a contract with a furnace company in Tennessee, whereby he agreed to furnish 30,000 tons ofiron ore within a year, at $1.50 per ton, which contract was assigned to plainI
Reported by Will Haight, Esq., of the Atlanta bar.