FEDERAl. REPORTER, vol. 40.
basis, rather than a mere towage compensation at the ordinary rate of eight dollars an hour. The amount to be allowed must be determined with reference to the various elements on which such compensation is based. The ferry-boat was worth not over $10,000; the tug, somewhat less. As it turned out, the damage to the Rumsey was small, and her working power unaffected; so that it is probable, or at least possible, that she might have taken care of herself without any aid. There is no evidence of any danger to the Laughlin in rendering the services she rendered. There was no occasion for daring, and no special skill. The , acutal service was short; it was attended by no difficulty, and by little labor. All the elements that enter into a salvage award exist herein but in a small degree. There were also plenty of other tugs ready to give any needed help. Four others, equally good, were in attendance. The Laughlin waS setected instead of another tug, with whose master negotiations were already pending when the Laughlin arrived, because the Laughlin was at the time understood to have a wrecking pump that might possibly be serviceable. The Laughlin had no such pump, and none was in fact needed. These considerations preclude any large award. The Baker, 23 Fed. Rep. 109; award reduced, 25 Fed. Rep. 771. It is of great importance, however, in all cases of danger, or of apprehended danger"that, where a call for help is made, other boats able to aid should repair instantly to the place of danger; and, though the service finally found necessary may be comparatively small, the compensation allowed should be so far beyond the ordinary rates of daily work, and so liberal that there should never be the slightest hesitation in dropping ordinary business and running to the scene of danger. The rate of compensation must be such as to secure always the promptest assistancl(. Upon the above considerations I award the libelants $300 and costs; two-thirds of the award to go to the owners of the tug, and of the remaining third $25 to go'to the master, and the rest to be divided among the master and the crew in proportion to their wages.
THE KIMBERLEY. BAKER SALVAGE Co. v. THE
(Circuit Court, E. D. Virginia.
In Admiralty. On appeal from district court. Butler, Stillman & Hubbard, for appellant. Sha1"p & Hughes, for appellee.
See ante, 289.
HARI.AN, Justice. This cause having come on to be heard in this court upon the appeal of John Higgins, master of the steamer Kimberley, and the claimant of the said steamer, her cargo and freight money,
JETNA LIFE INS. CO. t7. DAVEY.
from the decree of the district court entered in this cause on the 29th of June, 1888, and upon the pleadings and proofs presented in the said district court, and having been submitted by Messrs. Sharp & Hughes, as proctors for the libelant, and Messrs. Butler, Stillman & Hubbard, as proctors for the claimant, it is now by the court ordered, adjudged, and decreed as follows: .First. That the services in the libel mentioned are salvage services of a high degree of merit. Second. That the libelant do recover of the said steam-ship Kimberley, her cargo and freight money, the sum of $100,000, with interest thereon from this date until the date of payment; and the costs. Third. And it appearing to the court that by a consent decree entered in the district court on April 23, 1888, registered bonds of the city of New York of the par value of $200,000 were authorized to be transferred to Charles G. Ramsey and Walter H. Taylor as trustees, and have been so transferred, in trust to hold the same until the final decree of said court or of any appellate court to which the cause might proceed, and directing the said trustees, 10 days after service of such final decree, to sell and convert into cash the said bonds, or such portion of them as might be necessary, and out of the proceeds to satisfy any decree that might be rendered in favor of the libelant, if the same should not be previously satisfied or appealed from, and directing them also to pay the surplus of such bonds, if any, to the National Board of Marine Underwriters, as guarantors for the said John Higgins; and it appearing, further, that by the said decree of April 23. 1888, and by the final decree of the district court in this cause, that other bonds (of a class to be approved by the libelant's proctors) were directed to be transferred to the said trustees upon the like trust; and it appearing that they nave been so transferred to the said trustees,-it is further ordered, adjudged, and decreed by the court that the said trU::3tees do proceed to execute the said trust as set forth in the said decree of April 23, 1888, 10 days after the service upon them of a copy of this decree.
lETNA LIFE INS.
(Circuit Conrt, D. New
Jersey. September 27, 1889.)
At Law. On motion to set aside verdict, and for new trial. For report of charge on first trial, see 20 Fed. Rep. 482. On motion for new trial, see ld. 494. For report of opinion reversing the judgment, and granting a new trial, see 8 Sup. Ct. Rep. 331. For report of charge on second trial, see 38 Fed. Rep. 650. John Linn and Cortlandt Parker, for plaintiff. Theron G. Strong and JOB. D. Balle, for defendant. Before BRADLEY, Justice, and WALES, J.
PER CURIAM. We feel oompelled in this case to set the verdict aside, and grant a new trial, on the ground that it was contrary to the weight of the evidence, and the instructions of the court. It was a condition of the policy that "if he [the insured] shall become so far intemperate as to impair ,his health, or inducedelirittmtremen8, or if his death shall result from injuries received while under the influence of alcoholic liquor, this policy shall become and be null.a.nd void." The proof of the physician who attended the deceased in his last illness, and of others immediatelyaround him, was so positive on this subject, and so free from contradiction, that it is difficult to conceive how the breach of the condition could be proved, if it was not proven in this case. The evidence on the subject of his general habits was of a negative character, the witnesses never having seen the deceased intoxicated, and cannot outweigh the positive evidenee. The court is always reluctant to interfere with the verdict of the jury on this ground, and will not do so where the evidence is really conflicting. But if it is apparent that the jury disregarded the evidence, and that they 111ust have acted under some misapprehension or prejudice, it is the duty of the court to correct their error, and set aside the verdict. We think that this was the case here. It is argued that a second verdict on the facts will not be interfered with. That rule has qualifications. The former verdict was set aside, not for an error of the jury, but for errors in the charge of the court; and hence the case does not corne within the reason of the rule. It is where the evidence is conflicting, and the judgment of the jury upon it is twice called in question, that the rule applies. Let the verdict be Bet aside, and a new trial granted.
END 01' VOLUME