WELDT V. THE HOWDEN.
had been taken for the service, as well as from the large one, and in season to show his presence. I do not consider the claim forpiJotage against any vessel entering one of the larger ports of our couptry, inade under the same circumstances, speaking from a small dingy-boat, with no distinguishing marks or signals, would be entitled to any consideration, and the argument that the master should have presumed it was a pilot because it was not probable that any other small boat would be out there at that time of the night cannot be accepted. I do not consider the libelant used the ordinary customary signals in time to make his presence and character known to the respondent; and the testimony is positive that the hail was not heard on board, and there was therefore no legal and sufficient speaking to justify judgment. The libel is therefore dismissed.
(District Court, S. D. Galifo1·nia.
September 11, 1889.)
Where it appears that such bay and the p\?rt of Wilmington have always been locally regarded as identical, and that congress. by legislation, has recognized San Pedro as a port, and changed its name to that of the port of Wilmington, andreferred to the bay as the bay of Wilmington. such bay will be held a port, within Pol. Code Cal. § 2436, providing for compensation to pilots at "ports," irrespective of its merits as a harbor.
In Admiralty. Libel to recover half pilotage. Stephen M. White, for libelant. Mortimer &; Harris, for respondent. Ross, J. At the times stated in the pleadings, the libelant was a duly licensed pilot" for the port Of Wilmington and bay of San Pedro," and, as such, spoke the British bark Howden, bound for 8an Pedro, and tendered services as pilot. His services being declined by the master of the bark, libelant .commenced the present proceeding, claiming to be entitled to half the usual rate of pilotage by virtue of section 2436 of the Political Code of California, which provides, among other things, that pilots for all of the ports of this state other than San Francisco, Mare island, Benicia, and Humboldt bay, are entitled to receive for piloting every vessel into or out of port the sum of eight dollars per foot draught, and that, when the person commanding any vessel refuses to take a pllot, the pilot first offering his services is entitled to half pilotage. That tlly'state has the right to impose half pilotage on foreign vessels entering the ports of the'state,and declining the services of a pilot, 'was
deoided by Judge HOFFMAN jn Alameda v. Neal, 31 Fed. Rep. 366, and his ruling was affirmed on appeal by Mr. JusticeFIEI!D' 32 Fed. Rep. ,331. In the present case that right is conce<ied by the respondent, but the defense is made-First, that the Howden was not bound for and did not enter the port of Wilmington or the bay of San Pedro; and, second, that if she did enter the bay, that that bay is not a port within the meaning of the pilot laws; that the only port at that Qn the coast is the port of Wilmington, and that the port of Wilmington and the bay of San Pedro are not one and the saine, but on the contrary, that they are two totally distinct geographical places. The case shows that the liulits of the bay of San Pedro have never been defined by any competen't authority; nor isthe line that separates the bay from the ocean attempted to be delineated upon the United States coast survey chart. Indeed, it may not be an easy matter to define it for the reason that while upon the northerly side of the bay there is a well-defined headland, called" Point Fermin," there is none to the southward within such a distance as that it may be reasonably said to have any connection with the bay of San Pedro. In the absence of any legally defined limits to the bay, I think it fair to hold that all vessels that lie under the protection of Point Fermin are within the bay of San Pedro; and that the Howden was in that position I think appears from the evi'dence. ' , The bay of San Pedro and the port of Wilmington, it seems from the evidence, have always been locally known and regarded as one and the same. Originally,all vessels COIning- into those waters discharged their cargo at San Pedro, and from there the freight was sent by wagon to Los Angeles. San Pedro was, and is, a little or town on the bay of that name. In 1852, Gen. Phineas Bannirig.was conducting the principal business there, and as he was located on the government reservation at that place he was required to move. off., a()mewhere about the latter part of 1853 he removed his business from San Pedro and established it at 'Wilmington, which is situatedon,an inlet a few miles further inland. Not only have the bay of San Pedro and the port of Wilmington been locally regarded as one port or harbor, but that they are and have been so regarded by congress is clearly shown ,frqrn the following legislation: By an act approved September 28, ,1850, the. tOWl1 of San Pedro was constituted a port of delivery in thecoUection district of San Diego. 9 U. S, SL 508. By an act approved Aug\lst 3', 1854, the collection district of San Pedro was created, and San Pedro was· made the port of Ell1tryfor said district. 10 U.S. S,t..345. By aD. act approved June 2, 1862, the collection district of Sari Pedro was abolished, and the same was attached to the district of San Francisco. 12 U. S. St. 411. By section 2582 ofthe Revised the state 'of California wasqi. vided into two collection districts, the. first; being the district of San Diego, in whieh San Diego was made the sole ;IlOl't of entry, and San Pedro and SantaBarbara ports of delivery. By an apt approved June 6, 1874,the name of the port of San PedrQwaschanged to that of Wil· mington. 18 U. S. St. 61. By an act a.pproved June 10, 1880, the
1'. CHINA MUT. INS. CO.
privilege of immediate transportation was extended to. various, named ports; among others, to that of Wilmington. 21 U. S. St.174.. And by an act approved June 16, 1882, the collection districtofWilmington was created,in which Wilmington, on tbe bay ofWilrri'ington, was made the sale port of entry. 22 U. S. St. 105. By tbe legislation referred to not only did congress recognize the fact that there was a port at San Pedro, but by changing the name of tbe port of San Pedro to that of Wilmington and by referring to the bay of San Pedro as the bay of \Vilmingtoll, it gave unniistakable evidence that it regarded the one as identical with the other. Whether or not the port is a good and safe barbor does not affect the question. It is a place for which many vessels are bound, and at which it is usual for them to load and unload; and it is the place for which the Howden was bound, and at which she discharged her cargo. In my opinion the libelant is entitled to half the u8ual rate of pilotage, as provided by section 2436 of the Political Code of California; and aCcordingly a decree will be signed for libelant, with costs.
WHEATON v. CHINA MUT. INS. Co.
(Di8trict Court, S. D. New York.
1. April 3, 1889.)
MARINE INSURANCE-LIABILITY FOR GENERAL AVERAGE.
The schooner F .. loaded with cargoo on a voyage from Baltimore to StonIngton, having stranded, was rescued by salvors, and repaired at Philadelphia, where the l')sses were adjusted. On advice of the owners of the cargo, the insurers. though refusing to accept abandonment, assented to its conveyance to Providence, there being no sale for it at 8.. paying' the extra price for additional carriage, and superintending the sale in the owners' interest. The insurers alleged that the signature to the general average bond by their special agent was unauthorized. Held. that they were liable to the owners of the F., and that it was immaterial under the stipulation, except as to costs. whether the bond was taken. to be that of the insurers or the owners of the cargo.
SAME-BASIS OF CONTRIBUTION.
As the voyage was completed at Providence, the sale of the cargo there, less the additional expenses, was rightly taken as a basis for contributing value.
In Admiralty. . Wing, Shoudy & Putnam, for libelant. Lester W. Clark, for respondent. BROWN, J. The schooner Fessenden, on a voyage from Baltimore to Stonington, Conn., with a cargo of coal, stranded through perils of the seas. She was rescued by salvors, and a general average adjustment thereafter made whereby there was found due from the cargo the net sum of $639.90. The respondents were insurers of the cargo, and though they refused to accept an abandonment tendered by the cargo-owner, they