THE S. A. RUDOLPH.
also had his rights. He was fulfilling a contract to deliver to the buyer's vessel dry phosphate rock. The cargo was about to· be transported by sea. It went in dry; that is to say, not moist, or wet. It was about to be exposed to wetting. Heavy rains might penetrate the deck. The hatches might be imperfectly or negligently battened down and protected. The sea-water could thus reach the cargo. Stress of weather might open her seams and let water in. The master himself might order or permit water to be put into the cargo, thus increasing its weight and his freight, payable on the result at the port of delivery. He had therefore the right to require the master to state on the bill of lading the condition of the cargo, (Cox v. Bruce, supra,) ascertainable by the senses; that is to say, either that it was not wet rock or that to all appearance it was dry,neither damp nor wet to the eye or touch. The ordinary form of the bill of lading, "received in good order and condition," did not meet this if only the words "phosphate rock" were used. Phosphate rock direct from the washer, as we have seen, is used as cargo. This view is strengthened by another consideration. A carrier is not responsible if he safely delivers the very goods he actually received for transportation. Railway Co. v. Knight, supra. But in the carriage of phosphate rock such is the difference in the value of wet and dry rock (one dollar per ton) that it is important to the shipper to have from the carrier the acknowledgment, not only that he carries so many tons of phosphate rock, but also that it was in such a condition that the delivery of wet phosphate rock would not fulfill the contract. The master, therefore, had no right to refuse to sign bills of lading for anything else but phosphate rock. As is not unfrequently the case, both parties are in the wrong. Let each pay his own costs, and let them divide the costs of the officers of court between them.
RUDOJ,PH. , THE RUDOLPH.
et al. v.
(District Court, S. D. New York. June 14,1889.)
The schooner R. having stranded on the Jersey coast during It snowstorm, the master and crew were taken ashore by the life-saving service. A tug was sent for by the master, who kept watch of the vessel as she· floated and drifted upward and outward along the beach. The libelants' tug, passing near in rough weather, observing the schooner's condition, went to her rescue, and towed her to New York. No signal was given the tug from the shore. Held, that the service was a llalvage service; that the schooner was only temporarily abandoned; and that the service was rendered with the virtual consent of the master; and $1,500 was awarded upon the gross value of $6,314, for ship, freight, and cargo.-one-third to the master and Crew, twothirds t.o the owner; and an amendment to the libel was allowed to embrace the master and crew.
Libel for salvage.
H. D. for libelants. . Owen, Gray &: Sturges, for claimant. TV. A. Walker, for the cargo.
BnowN, J. On the 6th of February, 1889, the schooner S. A. Ru.dolph, bound frol11 Washington, N. C., to New York, loaded with lumber partly on deck, stranded on the New Jersey coast off Point Pleasant, during a snow-storm. After being aground a couple of hours, the master and crew were taken ashore by a crew from the life-sa ving station at Island beach, the master being injured by having a hand mashed, and being disabled in the legs. The captain sent a telegram to New York for a tug. About half past 10 the libelants' tug, Ivanhoe, approached the schooner, which was at that time afloat, and, seeing no one on board, took her in tow and brought her to New York. Before the schooner had floated the mate had again visited her, but, finding three feet of water in the hold, refused to stay aboard. The wind was blowing off shore, the schooner had some sails set partly torn, and the tiller was lashed to port. Some little time before the Ivanhoe approached her she had floated in the flood tide, and she was drifting up along the beach at the rate of about three miles an hour. The captain and crew, with the members of the life-saving staff, were on shore watching her, and it is claimed they were preparing to go on board of her again at the time when the Ivanhoe took charge of her. The captain, it is said, desired to go on board before, but was prevented by the captain of the life-saving crew on account of his injuries. The libelants claim that the schooner was derelict. I cannot find upon the evidence that the schooner was derelict or abandoned. There still remained the spes recuperandi. A tug had been sent for. The master and crew were watching her from the shore, with reference to her preservation. I am not satisfied, however, that there was any present intention of boarding her for the purpose of attempting to navigate her into New York harbor. ·When the tug appeared no signals to her were made by the schooner's master and crew on shore. Such signals might have been made, and if there had been any objection to the tug's rescuing the schooner, the tug's presence and manifest intention, instead of causing the master and crew to forbear to go out in the boat, as it is alleged they were preparing to do, would naturally have expedited their going. Virtually, therefore, the tug acted upon the assent, if not request, of the master of the schooner, and rescued her in her existing and apparent condition, i. e., only temporarily abandoned, and remaining under the eye and watch of her master and crew, who were seeking some means of rescue, and were satisfied that the Ivanhoe should take her in the condition she was. Under such circumstances the service was a salvage service, and entitled to a reasonably liberal reward. Though the sea was rough and the weather stormy, the service itself was not attended with any great difficulty or danger. The vessel, as saved, was of the value of $4,700, the freight $890, the cargo of the net value of $724,-in all $6,314. Fifteen hundred dollars will, I think, be a proper compensation for the whole service of the Ivanhoe,
THE HA VILAH.·
her master, and crew, to be aDPortioned ratably against the schooner, freight, and cargo. See The Hyderabad, 11 Fed. Rep. 749; The Joseph Griggs, 1 Ben. 81; The Anna, 6 Ben. 169. Of this amount one-third should go to the master and crew of the Ivanhoe and two-thirds to the owners. The libel is filed by the owners alone, and not in behalf of all interested. A petition may be filed in behalf of the master and crew, or the libel amended in behalf of all interested, and a decree thereupon taken for the full amount. The Adirondack, 2 Fed. Rep. 872. If neither is done within a reasonable time, the libelants may take a decree for their share only.
(District Court, S. D. New York.
A rehearing of a cause will not be granted after an assessment of damages, upon alleged new evidence that is equally controverted. and involves the reconsideration of all the previous evidence. The remedy is by appeal.
In Admiralty. Henry D. Arden, for libelants. H. D. Hotchkiss and R. D. Benedict, for claimants.
BROWN, J. The assessment of damages, under such circumstances as in the present case, is attended with much difficulty and perplexity. Assuming that the brig was liable on account of her negligence, as found at the hearing, I think that substantial justice is done by the award of damages, and that I am not warranted in .making any material change, except as respects $551.25, allowance for demurrage, which is doubtless an oversight. Payment of the full value of the vessel at Lhe time that she was sunk is the legal equivalent of a new vessel purchased to supply the place of the old, and interest thereon represents the value of the use. Demurrage in addition, therefore, is not chargeable. The Vemts, 17 Fed. Rep. 925; The Utopia, 16 Fed. Rep. 507. In other respects the report is confirmed. An urgent appeal is made for the rehearing of the cause on the merits, on the ground of newly-discovered evidence, derived from the raising of the vessel during the assessment of damages, by which it is claimed to be shown that the angle of collision, instead of being from three to four points, as found heretofore by the court, was eight points, as the libelants had contended; and because such a collision angle would require the reconstruction of the whole theory of the collision, and charge the schooner with fault, and perhaps wholly relieve the Havilah.Such evidence as the raising of the schooner affords is, no doubt, new. and, if it were certain that the evidence derived from an inspection of the vessel proved an angle of collis.ion of eight .points, I should not hesitate to admit the testimony, and to the evidence with reference to that