FEDERAL REPORTER, vol.
Ross et al.
'V. SOUTHERN COTTON-OIL
(Oircuit OO'lI/rt, E. D. Louisf.ana. January 21, 1890.)
Trial in the federal circuit court, on appeal in admiralty caslls, being de novo, appellantmayobject to damages found by a commissioner In the' district court, to n,oexceptions were filed. lI. SAM"'OOSTS ON ApPEAL. Toough thl!rdecree is reduced in amount,oosts of appeal will be 'given against appe¥lI:nt,.where the. reduction is by striking out items to which no, objection was made below.'
Libel for damages. f<,>t-appellant.
On appeal from district court.
E. D; fJrd:ig, for appellees:
c9wW,in;r. t,brough Steinhardt & Co., of New OJ'leami, respondent loaned to thern Cotton-Oil Company the barge.Jim my, for the use and transat tbe lJort of New Oi'leans, upon the wa.ters of the Missis· sippi river, lor the accommodation and use of said oil company."
',['0 this'l'e$pondent answers-:"That "hll,matters and things therein alleged are In great part untrue, and pleaded; and the trutb.is thatdul'lng the month of Decem· bel', baving sold a large quantity of cotton-seed meal to L. Stelt:Jbardt & Co., of New Orleans, and blling unable t9 deliver it on shipboard as prolDptl'y and quickly as they desired, respondent not being able t() furnish suftleklrit transportation, that in' consequence thereof said Steinhardt & Co. said to respondent's local manager-fA. C. Landry, · If we procure a barge. can you [meaning respondent] deliver the meal?' and respondent tbereupon replied that it could; and Steinhardt & Co. then st.ated that they could obtain a barge from Ross, Kepn & Co., New Orleans. said Ross. Keen & Co., being agents of the S. S. Mandelay, on which the cotton-seed meal was. to be delivered for account of Steinhardt & Co.; that it was generally understood in the port of New Orleans that when the barges of Ross, Keen & Co. were spoken of it meant the barges of the Harbor Transportation Company, Which. were usually employed by them, and were insurable, as well as their cargoes WE're also insurable; that subsequently Steinhardt & Co. informed re· spondent that respondent could have the use of the barge called the · Jimmy · without rental, but that the Southern Oil Company would have to pay th& tOWing. Whereupon, on or about the 19th of December, 1887, respondent
PARDEE,J., The transaction between the libelants and the respond. ent, l'I'hichis,the basis ofthe action in this ease, is'Shown by the pleadingsto 'J;iave beenoneof1oll,n. The second article oftile libel chnrges.or' about .the. 19th. of. December, 1887, at Tel}uest of said oil
ROSS tl. SOUTHERN COTTOK-OIL CO.
sent for the barge, then lying at the usual landing place oUhe Harbor Transportation Company, at the foot of Soraparu street, which barge proved to be the barge called the 'Jimmy.''' There is no material conflict between the two pleadings as to the actual fact in the case, which unquestionably was that Ross, Keen & Co. loaned their barge Jimmy for the use of the Southern Cotton-Oil Company, and that the Southern Cotton-Oil Company a'ccepted the loan. It is admitted in the case that the oil company used the barge for a different purpose than that for which it was loaned, and that while so being used the barge was sunk. The libel says that it was "by the improper use of said cotton-oil company, and want of attention to the proper lading of, and care of, said barge." The respondent says that-· ... While the barge was lying properly laden, properly secured and moored. heavy weather, and a severe gale of wind, set in, continUing all night and the next morning. when. the combing of the barge being entirely too low, the waves swept over her, filling her with water, and sunk her, with all her cargo of cotton-seed. to her gunnels." "If the borrower employs the thing to another use, or for a longer time than has been agreed on, he should be liable for the loi::s which may happen, although the same might have happened by chance." Rev. Civil Code La. art. 2899. To the same effect, see 2 Kent, Comm.674. There seems to be no question, then, that the respondent is liable for the damage done to the barge by the swamping and sinking. The question left is as to the amount of damages. In the district court the matter was referred to a commissioner, who reported $400.47. It appears that the respondent no exceptions in the district court to the report of the commissioner; and it is now contended that he cannot object in this court to any of the several items making up the amount of damages so reported: The trial in this court' is de novo; and I am of the opinion that the respondent can make all the defenses that he has on this appeal, although he may have made none in the district court. The respondent objects to the whole amount of damage,. because, he says:, the barge was not injured at all by the sinkirig aforesaid; that it was an old barge, out ofrepair, and needed calkihg; and that no injury whatevElr resulted from the sinking, which, his proctor now says, was because of the leaky condition of the barge. The evidence shows that the barge was not in a leaky condition before it was delivered to the respondent; that it was dry, and had not, in fact, been pumped out for six weeks or more before the delivery; and the respondent's'answer shows that the barge was sunk, not because it leaked, but because the combings of the barge were entirely too low, so that the waves swept over her, filling her with water. The weight of the evidence, too, is in favor of the proposition that when the barge did sink one end rested on the shore, in. such a way that the barge was to some extent twisted and strained. . . The respondent also oi>jects to one specific ,item in the. repair bill, which' is for 195 running feet of plank, at 35 cents per foot, making a. sum or' $68.25. His objections are that this charge is prima Jar:i.e exor-
by the ,evidence; the only.evidence in the libelants pahrthe l;>i1l, of which this 901lstitutes, an item. t think the objection is good. Respondentalsp objects to an itet;l) OL2,pOP fee,t of planks for the floor,at centil per foot, amo,lll1ting. tp170,. " 1'4e evidence shows that priqdo the damage the barge had no regu,lll-r floor, but only loose dunnage, and that the report of the inspector.with regard to the fioorwas a mistake. It follows that this item should. npt .. The'balance of t.he claim allowed for damages, as bythe commissioner; seems to be substantially right; and a decree for the amount will ,be en.tered. ' the costs oitha. qistrict court will have to be paid by the respondent; and I am inclined'to ,think that the costs of this court should also be by the respondent, because, although the decree, is reduced in amount on the app¢al"yet his in regard to items which the respondent Objected to In',the district court; the presumption being thatifhe.had so objected th<;>se items would have belln rejected. It is therefore ordered, adjudged, and decreed that the libelant recover fro:r:n the the Southern CO,tton-Oil Company, doing business in the city existing under the laws of the state of New Jersey, in thesulD of wHh 5 per cent. interest from judicial demand .pai4,llond all costsofsl.lit. ' . . ,
HARPn 11. TliE
, (CWeuitCourt,-JD. D. Loui8ia'1la. JanuarY '-1890.)
L SJiAdlf-EJDLOnIJlNT OF ASSIST.6.lfT BY ENGINEER. ' :; On llbel.foJi'lwr.ongfnl discbarg:e of an engineer the master, it is immaterial that tbe ch!efel1g1neer was to employ his assist.auts, as'Ubelant must be regard.eel as employed;witlithe consent of tlie mlllSter aud owners, and as one of the orew.
1I.IlUJE-DISQll4RI1.....NBGLEOT 01' DUTY.
In ';Libel for damages. R. De Grap,..for libelant.- , :/. w. Jr., for claimant.
On appeal frQm district court.
!: ,J. r,t:he questions.involv.edin this CRse are mainly quee,tioils r<#.Jact. is found infavor of libelant. The weight olthe evidence is in favor of' such finding. The !Was discParged strilgg1e,be. the and -the master, wits by the master" and in the })eginI\ing of wb;icb, . . , weight of the evidence, the ,.