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.
RAYMOND !t. THE ELLA 8. THAYER.
In Admiralty. Libel for wages and expenses of treatment at a hospital. Wm. Hoff Cook, for libelant. Daniel T. Sullivan, for respondent.
HOFFMAN, J. I am clearly of opinion that the proofs in this case do not disclose such negligence on the part of the master as would render the employer responsible for injuries to an employe caused by the negligence of a co-employe, either on general principles or by the law of this state. To hold otherwise would be to make the ship-owner an insurer of every seaman against all accidents which might occur in the course of the voyage, which could not be shown to have been the result of his own negligence, or the irresistible violence of the elements. The claims for wages to the end of the voyage, and for expenses at the German Hospital, must, I think, both be disallowed. A seaman injured in the ship's service is undoubtedly entitled to be cared for at the ship's expense, and to his wages until the end of the voyage. But he cannot claim wages to the end of the voyage when he has obtained his discharge at his own solicitation, and against the advice and even the expostulations of the master. The master urged him to remain on board, offering to provide for him medical advice and assistance, and to take him back to San Francisco. Had the libelant assented, he would, undoubtedly, have been entitled to wages up to the time of his arrival; but he insisted upon receiving his discharge, and going to Port Townsend Marine Hospital. The master thereupon paid him all the wages due him, gave him a certificate to enable him to obtain admission to the hospital, and paid his fare to Port Townsend. . He remained at the hospital, under treatment, some 15 days, when he was discharged, at his own request. I know of no case where a disahled seaman, discharged in an American port, and at his own urgent solicitation, in order that he might be admitted to a pnited States marine hospital, has been allowed subsequent wages. In the case of The W. L. White, 25 Fed. Rep. ,1503, it is doubted by the learned judge whether a discharge of a disabled seaman, in a foreign port, by the United States consul, at the request of and on the payment of one month's extra wages by the master, would, under the act of June 26, 1884, c. 121, § 3, known as the "Dingly Act," be valid; but he admits that, if valid, it "would bar all claims for subsequent wages." And an alleged consent given by a seaman seriously sick or injured, and confined ashore, was held by Judge LOWELL to be inoperative. Callan v. Willimns, 2 Low. 1. In this case it W3S also held that a consul at a foreign port has no right to discharge a seaman for disability arising from wounds received in the ship's service; "but the court observes that a fair contract, with a full understanding arrived at, might be upheld, though the man was more or Ipss ill," even though the dis<:harge was in a foreign port. But that a discharge in an American port, insisted on by the man, in order that he might go to a United >::itates marine hospital, and reluctantly granted by the master, is a bar to a claim for wages until the end of the voyage, cannot, I think, be doubted.
That a seaman injured in the ship's service is entitled to be cured at her expense is not disputed. This, of course, means that he is to receive, at the vessel's expense, the ordinary medical assistance and treatment in cases of injury or acute disease, for a reasonable time. The ship is not bound to pay for his rnedication, for the cure of a chronic disorder, for an indefinite length of time. The acvident to the libelant in this case produced, it is aUnged, a double direct hernia, pronounced by the physicians to be incurable. He was under treatment at the Marine Hospital at Port Townsend for 15 or 16 days, when he was discharged at his own request. He had previously declined the master's offer to procure a physician, and to have him treated on board the ship. He now demands $60 for six weeks' treatment at the German Hospital in this city. There is no evidence to show what treatment he underwent at the German Hospital, and none, except his own, to prove that he remained there for six weeks, or any other period. It would seem, from the nnture of his injury, that all the medical relief he could obtain must have been furnished at the Marine Hospital. At all events, he might have remained there until medical means for his relief were exhausted. He chose to leave the hospital; and, if this be denied or doubted, he must have been discharged as cured; that is, as having obtained all the relief that the medical art could afford him. He came to this city, went to the German Hospital, where he remained, he says, six weeks. Why he might not have remained there, at the ship's expense, six months or six years, if his present claim be allowed, is not apparent. There is no evidence to show that his cure was not as complete, so far nshis injury was curable, and so far as the ship was bound to defray the expenses of it, when he left the Marine Hospital as when he left the German Hospital. The character of the injury seems to indicate that it was, I think that, under the circumstances, the ship cannot be charged with the expense of the further medication, if any, which he had received at the German Hospital. Libel dismissed.
RICHTER '/1. THE OUVE BAKER.
court, S. D. New York. December 2; 1889.)
TOWAGE-NEGLIGENT LANDING OP TOW-COSTS DENIED.
1'he sc;hooqer C. libeled the tug O. B. for negligence in landing her at a wharf in the East river during a strong fiood- tide, claiming that she was pressed against the wharf and damaged. Her witnesses were examined dc bene C88C before trial.. The tug's witol1sses, on the trial, .averred that the schooner eame along-side the end of the pier lind made fast; that afterwards. wishing' to go to the south side of the pier, she began to wind around the corner with the tide, under the supervision of the tug, but t/lat the person in charge of the' schooner's lines tightened them too suddenl!, thereby bringing the schooner, which had no fenders, ag-ainst the corner of t/le pler,Cllusing the damage. The answer denied negligence, but did not state the above facts, and the libelant's witnesses were not examined as to HeW,
lReported by Edward G. Benedict, Esq., of the New York bar.
RICH'fER V. THE OLIVE BAKER.
that the claimant's uncontradicted evidence could not be disregarded, and that, it true, there was no negligence in the tug; and as the burden was on the schooner to show such negligence, and as the failure of the schooner to use fenders under the circumstances was plain carelessness, the libel should be dismissed. but, under the circumstances, as. the answer did not set forth the specific facts, without costs.
In Admiralty. Action for damage caused by the alleged negligent landing of a tow. Wing, Shoudy & Putnam, (0. O. Burlingham, of counsel,) for libelant. E. G. Davis, for claimants. BROWN, J. While the tug Olive Baker was landing the schooner China on the south side of the dock at Green Point, during a strong flood-tide, she was pressed against the southerly corner of the pier so as to damage a few planks, for which recovery is sought. The schooner was 25 years old, but I do not find that she was unfit for use. The libelant's accollnt of the mode of landing, and of the circumstances under which the accident occurred, is very different from the account given by the respondents. The respondents' account seem to be supplemental to the libelant's; and, as it is sustained by three witnesses, I cannot disregard it. Their testimony shows that the schooner had come up along-side of the end of the pier. had got her lines out, and made them fast, and was waiting to know to which side of the pier she should go for a berth; that she was finally directed to go to the south side; that for that purpose the lines were ordered to be slackened by the pilot of the tug so that the schooner could be shoved ahead, when she would be swung in, by the tide, aroullcl the end of the pier; and that it was the design of the tug to allow the schooner's port quarter to bring up against the corner of the pier at the proper time, when the orders were given therefor by the pilot of the tug; but that the person in charge of the lines of the schooner, without orders from the tug, tightened his lines too soon, which caused the schooner to come too soon and suddenly against the corner of the pier, and that without the use of fenders. The flood-tide there is very strong. That is the usual mode of landing, and, so far as appears, the only proper mode of going upon the south side of the pier on the strong flood. The libelant's witnesses were examined de bene esse, and no allusion was made in examination or cross-examination to the question of the lines, nor was it set up in the answer as an affirmative defense, though negligence was denied. The burden of the proof is upon the libelant to show negligence. Though I have considerable misgiving about the testimony of respondents' witnesses as an exact account of the accident, I cannot it altogether; and, if the accident occurred while the vessel was winding around by means of lines partly fastened to the dock, inasmuch as there is no evidence on this subject in the libelant's case, I cannot find that there was any negligence by the tug in the mode of doing this proved; and the failure of the schooner to use fenders, even without express orders, under such circumstances, would be plain carelessness. I do not credit the contention that fenders would have been of no use. I am compelled, therefore, to dismiss the libel, because there is no proof of
the respondents' part, under the circumstances, in winding about the wharf, as sworn to by the respondents. But as the answer, though denying negligence, did not call attention to the specific facts upon which the defense relied, the dismissal must be without costs.
THE MARY HOUGHTON
et at. v.
(District Oourt, S. D. New York. December 81, 1889.)
MARITIME LIENS-RUNNING ACCOUNT-ApPLICATION OF PAYMENTS.
The special agents of a foreign vessel made advances for the vessel's account on various oharges which were liens; also other advances, to the owners, of moneys which were not liens, but were advanced upon the credit of the freigbt moneys which were to be collected by them. as shown by the correspondence between the parties. All the debits and credits were put in one running account. Held, that the intention of the parties controls the application of payments; and that the intention here was that the freight moneys should be applied upon all lawful charges alike. and that such credits should accordingly be applied by the court to the debits chronologically, and that an attempted application by the creditor to non.jien charges. while preparing for suit, was too late.
The, vessel having been sold in prior proceedings, held, that the agents upon their libel in rem were entitled, as against the mortgagee, to claim out of the remnants and surplUS such items of their unpaid account (after applying the credits chronologically) as were liens on the ship only. excluding advances to seamen made contrary to law, and their own commissions.
In Admiralty. H. D. Hotchkiss, for libelant. Wilcox, Adams & Macklin, for mortgagee. BROWN, J. The application of payments of moneys received by a creditor, when not determined by the act of the parties at the time, should be made by the court in accordance with the common intention of the parties, where there is evidence, either express or by fair implication, of what the common intention was. This intention, when ascertainable, is controlling. I am satisfied from the correspondence and the evidence in this case that the libelants, the agents of the Mary K. Campbell in this port, in making their advances to the owners, made them upon the faith of the moneys to be collected by them on account of the Mary K. bell and her freight, and that such freight moneys 'Yere virtually pledged for these advances. All the charges, both for these advances, and for claims which were strictly maritime liens, were placed in one runnin/l: account, and the moneys which were received by the libelants were in a like manner placed on the credit side of the same general account. Upon such a transaction the credits should be applied by the court chronologically to the earliest items in the account, in so far as the charges on the debit side are lawful charges; because that, and that only, carries out the intention of the parties. In The J. F. Spencer,5 Ben. 151, there