FEDERAL REPORTlilR, vol. 40.
sibly have happened when the steamer was going at about three times the rate of the schooner. 'I'he probability is that the steamer, first seen a trifle on the schooner's port bow, soon afterwards crossed the schooner's course, when, seeing both of the schooner's lights, the steamer ported until the schooner's green light was shut in, and the red only was seen; that the steamer then immediately steadied, whereas she ought to hav'l gone much more to starboard, if she meant to take that method of keeping out of the way; that the schooner's' green light almost immediately came into view again, and then the steamer ported hard, but the collision happened a few moments afterwards. The change in the schooner's lights was probably caused by the usual yawing that unavoidably happens to a vessel sailing, like the Belle Hooper, with the wind nearly aft. The mistake of the steamer, I think, was-Fir8t, in not seasonably observing the schooner, and in'11ot taking the proper measures to avoid her early enough; and, 8econd. that, when she determined to go to starboard, she did not port long enough or strong enough to give the schooner a sufficiently wide berth; in other words, she was shaving too close. The Benefactor,8 Ben. 426, 14 Blatchf. 254; The Zodiac, 9 Ben. 171; The Farnley, 8 Fed. Rep. 629, 637; The Laura V. R08e, 28 Fed. Rep. 104, 108; Welld v. Armstrong, 29 Fed. Rep. 216, 218; The City of Springfield, ld. 923, 36 Fed. Rep. 568. No fault being established in the schooner, the libelants in the first case are entitled to a decree for damages and costs. The second libel must be dismissed, with oosts.
THE NEW YORK.
(DlstrWt Oourt, S. D. New York. December 81, 1889.)
CoLLISION-DAMAGES-REMOTE AND .PROXIMATE CAUSE-UNSEAWORTHY BOAT.
Acanal·boat loaded with ice was caused to leak by the swells of the steamer New York passing negligently. The boat could not be docked there for repairs with the cargo on board, because not strong enough j and the cost of transferring the ice would equal or exceed its value. The canal-boat was therefore sent to New York without repair, a trip of 140 milAs; but, being old and weak, she foundered within 12 miles of the city. and boat. and cargo were a total loss. A fit and seaworthy boat for such business would have made the trip without foundering or losing the ice, notwithstanding the leak. !Held, that the loss of the ioe by the foundering was not the prodmate result of the injury done ·t;lythe New York, but of the canal-boat's previOUSly unfit condition; and that the New York was responsible only for such loss and damllge to the ice 8s would naturally result from such an injury to a seaworthy boat, such as increased melting or injury to the ice from the water, brought In contact with it by the leak; .and that the libelant, having contributed to the in. jury by wrongfUlly ftlling in the channel, was entitled to half such damage only.
In Admiralty. Hylam.d Zabriskie, for libelant. a. A. Vansantvoord, for claimant. BROWN, .J. This libel was filed to reoover for the loss of a cargo of ice, which was on board the canal-boat O'Rourke when she was injured
MOULD tI. THE NEW YORE.
at the ice-house dock near Albany by the swells of the steamer New York in passing her. In the former Case of ,The New York, 34 Fed. Rep. 757, the owner of the boat recovered the amount of the actual damage done to the boat at the dock. Damages for the entire loss of the canal-boat on the subsequent trip to New York, during which she foundered, and the cargo was lost, were excluded, on the ground that these additional damages were not the proxiulate results of the defendant's fault, but of the captain's subsequent venture with an unseaworthy boat. 38 Fed. Rep. 710. On appeal the judgment was affirmed in the circuit court, October 3, ] 889. 1 In this suit by the owner of the cargo of ice, the case has been submitted on the same testimony as in the former case, and the decision as to the fault of the city of New York must be the. same. Some additional proof has also been given, tending to show that a cargo of ice in the middle of August could not be transferred from one canalboat to another without special flicilities, which did not exist and were not attainable in the vicinity of this accident, without costing as much as the ice 'remaining after the transfer would be worth. From this it is contended that the necessary damage as to cargo was a total loss. The evidence also shows that the O'Rourke was not only a very old, weak, and rotten boat, but that she was also so light in her original construcwith her cargo of ice on tion that she could not be docked for board; also that she was overloaded by the libelant some two or three inches above her six-feet draft. which was the limit for which she was originally designed. It further appears that the libelant is the proprietor of the ice-house and of the dock; that the ice-house people had been in the habit of "dumping things off the dock, so as to narrow the channel for the last two years;" and that there were stones on the bottom along the end of the dock. Such dumping was a wrong for ,which the libelant is responsible. Its necessary effect was to render more likely such accidents as this, and to contribute to them. To what degree it did so in this case cannot be known. The libelant in the former case was not privy to this wrong, nor affected by it; the present libelant is. The state at' much expense straightened, deepened, and diked this channelway; whereupon the libelant proceeded to occupy a .part of it, filled it up more or less, and now complains that the boat pounded on the bottom through the passing swell. The evidence, as it stands, indicates his responsibility for acts presumably contributing to the injury. This would prevent his recovery of more than half his damages. But, upon the other facts of the case, I think the loss of the cargo by subsequent foundering was so niuch outside of the natural and proximate results of the steamer's fault as to preclude the libelant from recovering at all for that kind of loss, The O'Rourke was utterly unfit to engage in such business as carrying ice from Albany to New York. The libelant hired her for this purpose, knowing, or having means of knowing, her unfit. condition. She was overloaded, as above stated, and on the trip down her bottom dropped out, and her deck was raised up
and carried off by the .ice. Had she been ordinarily fit for this busi. ness, I cannot believe that this result would have happened. I have no doubt that she would not h/tve foundered, but have delivered the cargo of ice in New York, notwithstanding the leak caused by the defendant's fault. . The proximate cause of the sinking of the boat, and the consequent loss of cargo, therefore, was not the injury done her at the dock, but her unfit and rotten condition, which alone made that injury result in loss. The defendant is in no way answerable for her rotten condition, or its results; but only for the natural and proximate effects of his fault, such as might be foreseen as likely to follow. Railway Co. v. Kellogg, 94 U. S. 469, 475; Railroad Co. v. Reeves, 10 Wall. 176, 191; The Reba, 22 Fed. Rep. 546, 548. The defendant is not chargeable with those ultimate consequences which came from the weakness and rottenness of the boat, but with those only that would ,naturally happen to a boat in a condition ordinarily fit for navigation. On this groun!!, old and weak boats are not allowed damages for the ordinary contacts of rravigatioll. The Gen. George G. Meade, 8 Ben. 481; PM Chas. 11. Stone, 9 Ben. 182. In the absence of special notice to others, the risk of all those results that flow from the weakness of such boats is on those thai use them. For this reason the damages in the former case were confined to the actual damage to the boai at the time and place of the injury, excluding the loss by foundering on the subsequent trip. As this foundering did not happen aEl the natural consequence of such an injury as this to a seaworthy boat, the loss of the ice thereby is not the natural and proximate result of the defendant's fault. There is not strictly any evidence of any other injury to the ice; but there was probably some loss and injury to the ice from increased leakage, and the more water thereby brought in contact with the ice to melt it, which would be the natural and proximate result of the defendant's fault, i. e., the result of such an injury to a seaworthy boat. To half this damage and loss. if any such is proved, the libelant is entitled, (The Keystone, 31 Fed. Rep. 412, 416, affirmed on appeal;) otherwise the libel must be dismissed, but without costs.
RAYMOND 'V. THE EJ.LA
(DIstrict Court, N. D. California. June 1, 1887.)
Where a seaman, injured in a vessel's servioe, at his own solioitation, and against the advioe of the master, obtains his disoharge in an American port, and receives his wages to date, and a certificate for admission to the marine hospital, he cannot . afterwards maintain a claim for wages to the end of the voyage. Having been admitted to a United States marine hospital, and obtained a discharge therefrom at his own request, the vessel is not liable for expenses thereafter incurred by him at a private hospital.
2. SA..1IIE-EXPENsES OF MEDIOAL TREATMENT.