LARRINAGAtI. l'WOTHOUSANDBAGSOF SUGAR.
aria theapplioationof a degree of force, which a reasonably skillful and
prudent owner would not have anticipated or guarded against. There' is no question of latent defect, the inference to drawn from the testimony being that there was no defect. patent or latent; that the fastenings were sufficient, and were knocked out by a blow such as could not reasonabl,Yhave been anticipated, and which was caused by a danger of theses.' "
ON APPLICATION TO AMEND FINDINGS.
Upon the two principal amendments to the findings asked f()r by the libelant, namely: (1) To insert the word" apparently" in the twenty-third finding; and (2) to prefix to the twenty-fourth finding the words, "It is tobe inferred from the facts found in ,the 16th finding,"-his motion must be denied. The libelant claims that there some defect or weakness in the plate and cap, and the screws was in which se<Jured them; that in consequence they washed out, and allowed the water to enter the vesseL Whether such defect or weakness existed or not is a question of fact, which it is the duty o(the circuit court to decide. Such decision must be presented, as a finding of fact, to the appellate <itmrt. The conclusion reached :upon all the testimony was that there was no such defect. No doubt that conclusion was reached as an inference from the facts in proof. No one distinctly testified: "I made an elaborate examination of the cap, plate, and screws before the vessel sailed. They were then in sound condition, and I saw them knocked out by :floating stuff washing across the vessel's de<Jk, and out through the open port." Nevertheless, the testimony, taken as a whole, indicates that this was in fact what happened. If this court should amend the twenty-third and twenty-fourth findings in the manner suggested, the supreme court might reverse on the express ground that, because there was no distinct finding of fact to that effect, it must be inferred that the claimant did not convince the <Jircuit court, as a matter of fact, that the vessel was tight, and there was no latent defect in the plate, cap, or fastenings. But that is the very conclusion to which an examination and comparison of all the testimony adduced by both sides has led this court; and therefore compliance with the act of 1875 seems to require the statement of such conclusion as a finding of fact.
THOUSAND BAGS OF SUGAR.
(Circuit Court, E. D. Loutsiana.November 16,1889.)
ADJIIlULTY JURISDICTION-SBVlllUNG CAUSB OJ' ACTION.
Oq, libel cargo for and other charges, where claimants admit that the freight 18 due, but deny liabIlity for tbe other charges, the cause of action may be severed, and judgment render.ed for libelants for the freight oharges, though Buoh separation destroys the of appeal to the supreme court of the United States, by reducing the amount m controversy below ita jurisdiction.
vol. 40. Onappea1 from dis-
In Admiralty. Libel for· freight and expenses. trict court. Ja'TM8 McConnell, for libelants. O. H. SanB'Wfll, for claimant.
PARDEE, J. The libelants brought a libel in the district court against 2,000 bags of sugar, part of the cargo to this port of the ship Emiliano, for unpaid freight and for charges on the cargo. The libel alleged a charter-party, full compliance with the stipulations thereof, and the freight, as per charter-party, was $4,906.61, and the costs for trucking across the levee, watching, etc., amounted to $947.[3; that the entire cargo had been delivered, except the aforesnid 2,000 bags; and that they were ready to be deliverlld, but were withheld, because the consignees, while willing to pay the aforesaid freight, refused to pay the said charges. The libel demanded judgment for the said sum of $4,906.61 freight, tlr gether with the said sum of 8947.53 costs and charges. The answer of claimant substantially admits the delivery of the merchandise, and that the amount of freight thereon claimed was due and unpaid; but coJ}tested the right of the libelants to hold the merchandise for the aforesaid costs and charges, which claimant denied were due and owing.. Upon these pleadings in the district court the libelants moved for a decree for the amount of the freight, on the ground that it was not in contestation, and that the claimant admitted its liability to pay the same. On the the motion, and gave a decree against the claimhearing the court ant and its surety for the amount of the freight, as being admitted by the respondents to be due on the shipment, and not in contestation; but reserving the claim set forth in the libel, and not admitted by the respondents in their answer, to be thereafter passed upon and determined by, the court, and also reserving all questions as to interest and costs Until there should be a decree as to the contested items of libelants. From this decree the claimant appealed to this court. The case has been heard and submitted. The' only contest the claimant and appellant make in this court is that the district court had no right to sever the pause of action; that the whole amount demanded ill the libel was for a sum within the appellate jurisdiction of the United States supreme court; and that such separation takes away the right of appeal. . At the request of the libelants the court finds the following facts: (1) That the allegations set forth in the libel are true, being sustained by the evidence offered so far as it relates to the claim for freight, to-wit, the sum of $4,906.61, which the pleadings on their face and the evidence offered show to be due and owing. by the claimant and appellant herein to the libelants set forth in the libel. (2) That the said freight to-wit, $4,906.61 ,is due to libelants on the said cargo of sugar received by the claimant and consignee herein, and about which there is no contest or dispute made in the pleadings, nor shown in the evidence offered. (3) The only contest herein, both in fact as shown by the evidence, and also as shown by the pleadings, is exclusively in regard to the items set forth in the libel, aggregating $947 .53, as charges for mov-
COOPER ". THE .SARATOGA.
illg the cargo across the wharf from along-side of the ship to terra firrna, and for watching and caring for the same, which items are not now in contest before this court, but are still pending in the district court. The following decreewill be entered in the case: This cause came on to be heard upon the transcript of appeal and evidence, and was argued; whereupon it is ordered, adjudged, and decreed that the libelants, Felix R.·de Larrinaga, Pedro de Larrinaga, Jose R. de Unitia, and Ramon de Mendozana, composing the commercial firm of Olano, Larrinaga & Co., do have and recover from the claimant, the Louisiana Sugar Refinery Company, and John S. Wallis, surety on the release bond herein, in 80lida, the sum of $4,906.61, together with the costs of this court on this appeal, and for which execution may issue after 10 days from the filing hereof.
November 14, 1889.\
(or.'I'cwlt Cown, S. D. NfM York.
A finding of the distriot court, on libel for damages by collision, that both vessels were in fault, will not be disturbed on appeal, when no new proofs are taken, and the evidenoe was oonflicting, and the finding turned on the oredibility of witnesses who were examined in the presence of the distriot judge, though the testimony seems to warrant another conolusion.
In Admiralty. Libel for damages. On appeal from district court, 87 Fed. Rep. 119. . Hyland <t Zabriskie, for claimant. Wing, Shoudy <t Putnam, for libelants. WALLACE,. J. The libelants are the owners and crew of the schooner L. Holbrook, and sue for the loss of the vessel and the effects of the crew by a collision with the steamboat Saratoga, which took place in the Hudson River just opposite Catskill point on the night of August 15, 1888, about llalf-past 11 o'clock.' The night was cloudy, and betokened rain. The moon was about setting, and had sunk behind the hills which lie on the west of the river, and, although the stars were visible at times through the rifts in the clouds, when the collision took place the night was exceptionally dark. Where the collision took place the trend of the river is north and south for some little distance, and the channel is narrow, the width being 600 or 700 feet. The vessels collided near the middle of the channel, but somewhat to the westward. The tide was ebb, and the wind was very light from the south-east. The Saratoga was a large steamer, making regular trips between the cities of Troy and New York, and running upon schedule time. She was bpund down the river, making her usual speed, going about 14 miles an hour .through the water, and had 225 passengers and a large cargo of freight . .Herc()\lrsewas to the westward of the mid-channel. Two pilots were