SWEENEY fl. THOMPSON.
Third. The libel filed by George and John Churchill against the steam-ship Altenower should be maintained, and that said libelants should have and recover from the claimants in this case, and their sureties un the release bond of the steam-ship Altenower, the sum of $7,194.72, with interest thereon at 5 per cent. from the 12th day of February, 1881, and all cost of suit. Fourth. That the cross-libel filed herein by John Birney Adam, Alexander Chiras Adam, and Thomas Adam, Jr., owners of the steam-ship Altenower, against the bark Ontario, should be dismissed, with cost". Fifth. The following decree should be entered in the case: Considering the aforesaid findings of facts and conclusions of law. the court doth order, adjudge, and decree that George and John Churchill, owners of the bark Ontario, libelants herein, do have and recover from the steamship Altenower the sum of $7,194.72, with 5 per cent. interest thereon from February 12, 1881, till paid, and all costs of suit. And whereas, said steam-ship Altenower was seized on the libel in this case, but was released and restored to her owners on giving bond and security to respond in damages, it is further ordered, adjudged, and decreed that John Birney Adam, Alexander Chiras Adam, and Thomas Adam, Jr., owners of said steam-<;hip Altenower, and claimants herein, and Bradish Johnson and Victur.l \1"yer, their sureties on said release bond, be condemned in solido LO pay the foregoing judgment: provided, however, that the said Victor Meyvr and the said Bradish Johnson shall be held liable under the judgment only in the sum of $7,500 each. It is further ordered. adjudged, and decreed that the cross-libel of John Birney Adam, Thomas Adam, .Jr., and Alexander Chiras Adam, filed herein, be dismissed, with costs. Execution may issue upon this judgment and decree after 10 days from filing hereof.
et al. v.
(Circuit Court, E. D. LouiBiana. June 24, 1889.)
GENERAT. AVERAGE-BoND-SEAWORTHTNESS OF VESSEL.
In a libel on a general average bond. the evidence of libelant was that the steam-boat ran over some concealtJd obstruction which carried away her wheel. and broke her rudders and shaft. so that she became helpless. and had to be towed to a port, put in dry-dock, and repaired. The respoudents con· tended that the steam-boat was unseaworthy at the time of the disaster. and the inquiry was confined to the question whether or not the shaft of the steamboat was seaworthy. The evidence of the engineer. firemen, second mate, and master and others, who were on duty, was that the steamer collided with some unknown obstruction. and this was corroborated by persons who examined her after she was in dry doek. and found bruises on her hull. Respond· ent's witnesses testified that they had examined the boat, and found no bruises on the hull, but there was no direct testimony contradicting the engineer, fireman, master, and others. Held, that the preponderance of evidence was in favor of libelant.
The shaft. when it broke. gave way suddenly, as if ,from a sudden applica' tion of exterior force. and it appeared that when it broke the iron was fibrous, showed no crystalization. and, had the appearance of a sudden break. rather than that of a slow and gradual giving way. The proof was that. when a shaft gives way from natural wear, the process is gradual. and shows itself on the outside by a crack. and by the working loose of the wedges which tighten the flanges around the shaft. and that notice of such giving way is always conveyed to the engineer and master by a wabbling of the wheel affecting the machinery. An inspection of the boat shortly before the accident showed no signs of defect. and t4e wedges had not worked loose. and there was no wabbling of the wheel. It was conceded that the shaft had a welding defect at the place of fracture, but the testimony showed that the solid part of the shaftat the point of fracture had two and one-half times the strength required for balancing the strain required of it to perform its work. Held. that the evidence showed that the shaft was seaworthy.
SAME-BASIS OF AVEHAOE.
The evidence showed that the steam-boat had lost her motive power. and was in a leaky condition, not in any port or harbor, and could only reship, if at all. on transient boats. Held, that ship and cargo were in peril. and the expense of towing her to port formed the basis of a general average.
The fact that the port of refuge and the port of destination were the saIlle makes no difference. On appeal from
In Admiralty Libel on a general average bond. dirtrir' r,ourt. W. ! Flowe and J. R. Beckwith, for' Percy RU0drt3, for
PARDEE, J. The libel in this case is one in personam on a general average bond. Among the suitable allegations to such suit, the libel propounds that"Soon after, said steam-hoat proceeded on her voyage to New Orleans with said cotton and other lots <If cotton and cargo aboard, when afterwards, on tile 12th of Fehruary, in out of 011 riv("r, her usual Hnd proper COllrSP, she suddenly ran over some unknown olJstruction or object concealed lleneath the waLeI' in the uS\lal ('iIa1llJeJ, which carried away her wheel, and broke Lhe rudders, beside doiug SerlOllS damage to lH'r machinery, and causing her hull Lo ieak very hadly. and she was left in a disabled and helpless condition; that it llecarne neeessary, in order til save said stpam-boat and her cargo from total loss alld destrudioll. t,o have her Lowed to New Orleans bv another stf'am-boat, the .Tohn II. Hanna. a of some - - - miles: }md said steam-hoat Corona was kaking so lladly that it was absolutely necessary to kepp all tile boat's pnll1ps at work trom the time of the acdd(·nt until her cargo was discharged and silt' was plat'ed in the dry-dock for necessary
The answer admits a large portion of the facts propounded in the libel to be true. As to others, it neither admits nor denies, for want of information on the subject, but requests full and legal proof thereof, and then denies liability because of the said averll.ge bond, or for any other cause growing outofthe lacts alleged in said libel"For the causes and reasons following, to-wit: That said steamer Corona at the tlllIe she received the said cotton of respondents un board. and during her said subsequent voyage, was not staunch and strong; and was not in condition to safely reci'i ve and transport said cotton. as was implied in holding herself uut as a common carrier, and so recd ving said cotton for carriage.
SWEENEY '11. THOMPSON.
but, on the contrary, that the said steamer was, when she received said cotton and during bel' sail! subsequent voyage. in an unseaworthy condition; and that her said disabled condition, and the said alleged necessity of being towed to the port of New Orleans. and all of the alleged costs, expenses, and sacrifices. were caused by the unseaworthy cundition of the steamer, and particularly by the fact·tllat the 'shaft of the engine of said steamer was defective. and wholly insufficipnt to withstand the labor and strain devolving upon it in the ordinary course of. the voyage she was then engaged in.-thereby rpndering said stpanier unseaworthy, and liable for all the costs, expenses. and sacrifices alleged in said libel." ,
The issue thus made by the libel and answer is as to the seaworthiness -of the Corona at the time of the disaster alleged. To this iSilue the evidence.in the case has been wholly directed, and on it the case has been tried in the district court, and argued in this court; and not only has the issue up to this time been confined to the question of seaworthiness, but it has beep ,particularly confined to the single question as to whether -or not the shaft 01 the CQrona was seaworthy. In the briefs filed in the case, one or two other questions affecting the liability of the defendants have been and argued. On the ql,lestion of seaworthiness, the following facts appear from the -evidence: }i'i1'8t. That at the time of the disaster by which the Corona lost her wheel the boat collided with some unknown obstruction in the river. This appears by the evidence of the engineer, fireman, second mate, and master, all on duty at the tillie, and by the evidence of the carpenter, stevedore, and mate, officers of the boat, who were observers of the disaster. It is not opposed by any evidence on the part of any person on the boat; it is only contradicted by theories and experiences of experts. The fact is corroborated by the independen t fact shown by the testimony of several witnesses, who examined the vessel after going into the drydock with regard tf) the injuries the hull of the boat received. From two of these witnesses I quote: Oris 1. McClellan says he is in the dry-dock business. Has been for the last 13 years. His dock ie the Ocean dry-dock, in which the Corona was placed alter the accident under investigution. "Examined her after she was in the dock. On her starboard bow there was a mark of bruises, that extended several feet in the as if she had heen struck by some back from the bow, and it was a large spot, I should judge about three feet square, and there was a little break away from it running under the boat. One of the balance rudders-the balance part of the rudder-was broken in the end, and split up to such an extent that it necessitnted the putting in of a new piece, and the strengthening of the stock. This rudder extends forward under the stern of the boat, forward of the wheel. It was that part of the rudder which would naturally be struck by any object that struck the bow of the boat, and run under the boat." In concluding his testimony he says:
"I should infer she struck some object in the river, which struck her in the bow. glanced under her, th"n struck the rudder, then rose up and tore this wheel out, catching on the shaft of the wheel, and tore it out. I sliould jUdge
Whenit got from the wheel, and
itcametIpbetwellll the hnll ohheboablnd the wheel. nnderneath the boat; its <buoyancy naturally got it up broke it off." .
Victor Junior swears that be is foreman of the Ocean dry-dock. Has been in the business for 14 years. He examined the Corona when it was placed hI the dock. Says: "All the marks that I saw on' the Corona when sbe came in were on the starboard side. We were on the deck of the dock, and wh!'n she clHoe up out of the water far enough we saw it, and it was bruised. It looked at first like a scratch, but when it got up it was a great bruise on the atal'board side. One of her rudders was damaged. " There are three other witnesses who testify for the libelants that the bruises on the Corona (as Rworn to by McClellan and Junior) existed as claimed. The respondent produces four witnesses, who testify that they examined the hull of the Corona when she was in the dry.dock, and found no evidence of any late bruises or collision on the hull, but none of them swear as to injury to the rudder. In the record is the report of a survey on the Corona, held on February 16th, after the accident, at New Orleans, by D. H. Connors, then inspector for the New Orleans Board of Underwriters, and O. F. Vallette, ship-builder, in which it is certified as follows: "After careful examination, we find the shaft broken, cylinder timbers, plumber-blocks, and cams and rudder on port side broken, and when in dock we found four planks on starboard side forward broken." Some weight must be given to this certificate, although Connors' evidence in the record is not very satisfactory as to any actual examination made by him, and Octave Vallette (presumably the ship-builder O. F. Vallette) is one of the four witnesses of the respondent testifying that on examination of the Corona in dock they found no evidence of any late bruises or collision. Connors, in his original examination as a witness, testifies to marks and bruises on the hull, and to the removal of three or four planks, but said: "There were no marks of an impact with anything." When recalled, he testified that the broken planks and the pieces thereof showed evidence of a collision, and to the questIOn, "Could you observe on the bottom of that boat, taking into consideration these bruised planks, anything else that the boat had gone over some obstruction of some kind?" answered, "Well, yes; there was a crease as if she had passed diagonally across to
port." Considering all the evidence on the matter of bruises on the hull of the Corona in its bearing on the question of collision by the Corona with some obstruction at the time of the accident, the preponderance is largely on the side of the libelants. Asa general rule, witnesses who do see out· weigh witnesses who do not see. It was impossible, it seems to me, for Mr. McClellan and his foreman to be mistaken, under the circumstances, in a matter of this kind. Second. The shaft of the Corona when it broke gave way snddenly, as if from a sudden application of exterior force. It appears that where
the shaft broke the iron was fibrous, showed nocrystalization, and had the appearance of a sudden break, rather than that of a slow and gradual giving way. The proof is that,' where a shaft gives way from natural wear and giving out, the process is gradual, and invariably shows itself on the outside by a crack, and by the working loose of the wedges which tighten the flanges around the shaft. The evidence also shows that notice of such gradual giving way of a shaft is always conveyed to the engineer alld master by R wabbling or irregular motion of the wheel affecting the machinery. So far as this particular shaft was concerned, the evidence is to the eIted that an inspection shortly before showed no signs whatever of defect; that the wedges had not worked loose; and that no notice whatever was given to the engineer of any deflection in the shaft by any wabbling of the wheel or peculiarity in the engines. To this showing on the part of the libelants the respondents have naught to ofter hut the theory and experience of alleged experts. Third. While it is a conceded fact that in the shaft of the Corona there was a welding defect at the place of the fracture, yet it is mathematically established in the case that, notwithstanding this welding defect, the solid part of the shaft, which was suddenly broken at the time her wheel was lost, at the point of fracture had nearly two and a half times the strength required by well-recognized formulm for balancing the computed torsion and strain required of it to perform its ordinary duty in the navigation of the Corona. In this the mechanical engineers, who have testified in the case on both sides, substantially agree. Upon these facts, the conclusion is inevitable that the shaft of the Corona at the time of the disaster in question was seaworthy; that is, was sufficiently staunch and strong to withstand the ordinary perils of navigation. There is in the case a field for conjecture well opened up by the testimony of experts, and by the lear'1ed and ingenious argument of proctor for respondents. However, it is a field in which no certainty is to be attained, and into which the court does not feel called to enter. The whole case depends entirely upon the construction and effect to be given to the evidence. The district judge considered it, and seems to have had no difliculty in determining in favor of fact, as against the argumentative case presented by the respondent. His conclusion and judgment are entitled to great weight. Smce the original submission of the case, the pleadings have been somewhat amended, llew evidence taken, and it is now claimed that, if the court shall find that the Corona was seaworthy, yet the libelants ought not to recover, because, although the disaster was caused by a collision with some obstruction in the river, yet, as the leaks of the Corona were soon under control, and the boat itself was brought to shore and tied up, the cargo was it! no danger, and could easily have been reshipped, and that, therefore, the towing expenses of the ship and cargo to New Orleans could not be the basis of a general average. I have read the additional evidence, and have examined the numerous cases cited in the briefs, and have consulted the text-books; and, considering it all, I have no trouble in concluding, on the case as made by the evidence
herein, that as the Corol1a had entirely lost her motive power, and was in a leaky condition, not in harbor of refuge, and could only reship, if at all, on transient boatEl, as a whole, ship and cargo were in peril, and extraordinary services and expenditures were necesEntry for ehe oommon safety of ship and cargo; and as these services were rendered, and these expenditures were made, the case is properly one of general average. That the port of refuge and the port of ,destination were the same maIres no material difference. Where it is possible to save the ship as well as the cargl?! it is doubtful if the master should be criticised for not separating them, even if he have an opportunity, If he does separate them under such circumstances, the ship does not thereby lose her claim for general a:verage. In the present case the evidence does not show that any reshipment ought to have been or could have been made without largely increased expenses. Let a decree be entered for the libelants as prayed for in the libel.
THE CIAMPA EMILIA.
(District Gourt, S. D. New York. May 29. 1889;)
TOWAGE-COUNTER-CLAIM FOR DAMAGES-ADMIRALTy-PRACTICE.
Since, in a suit for towage. the defendant, who has a counterclaim for damages for negligent performance of the contract, in excess of the libelant's claim, cannot recover his full damages by answer, but only by Moss-tibet. and as he cannot split up his cross-demand. but must try it in the cross-suit. he is -entitled to have the libel and cross-libel heard together. if bronght in the same court. If brought in different courts. jud.c:ment on the libel for towage should be stayed until reasonable opportunity had for the trial of the larger counter-claim in the cross-action.
In Admiralty. Libel for towage. Hyl.and &- Zabriskie, for libelant. Wing, Shoudy &- Putnam, for claimants.
BROWN, J. The libelant sues for $250, the agreed price for towing the ship Ciampa Emilia from New York to Philadelphia, in November, 1888. On the trip the Ciampa was damaged in an amount much beyond the contract price, through the alleged negligence of the libelant's tug. The answer admits the agreement to pay $250; but it alleges a contract to tow safely, the non-performance and violation of that contract, the consequent damage, and the pendency of a suit in the Eastern district, brought by the claimants against the libelant's tug in rem, to recover damages much in excess of the price of the towage. The claimants in the suit last named having bonded the vessel and given security for the damages claimed in the Eastern district, now move for judgment here