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 ,.
libelant was without fault. He discharged in the swamps along the Little Tallahachieriver, 12 miles from 'any village, and miles distant from any habitation. The first defense offered by the clairillint is that the libelant was not in the employ of the boat; that there was a contract between the boat and the chief engineer by for a lump sum, the chief engineer was to employ his assistants; and that in fact the libelant was in the employ of the chief ,engineer. This defense is. not good!i It is immaterial whether the boat employed the libelant directly or indirectly. He was employed with the consent,if not at the inetance, of the master and ers,and formed one of the crew of the boat. See Rev. St. U. S. § 4612; Seam. 5. It:is ilext claimed that thelibelantwas discharged for neglect of duty. The neglect of duty is alleged to have been in not attending to his gine, and in not obeying orders to keep up a high pressure of steamin an emergency with regard to the boat' alid its tow. The weight oithe evidence is that through the exhaustive demands made upon' the engine and boiler, and the poor character of fuel furnished, it was not the fault of the libelant that a greater pressure ofSteam was not keptuPi and the qn this issue must be, in favor of li1;>elant. . 'Lastly,it is contended that in the perSonal difficulty and struggle tweerithe master and the libelant, preceding the libelant's discharge, which difficulty, it is claimed, was provoked by the libelant, the libelant, having the master down, and holding him in a position so that the master Could make no resistance, cruelly, viciously, and unnecessarily bit out a piece of the master's nose, mutilating and marking him for life. n is alleged in the argument, and the court can well pelieve it, that the district court held that if this were true the libel should be dismissed. The evidence on this point, as it is now found in the record, is very conflicting, and leaves the impression on the mind that the charge is not proven. The conclusion of the whole case is that the decree of the district court, :finding for the libelant balance of his wages for the voyage, and for his board while awaitinlZ employment, should be affirmed.
THE DORIS ECKHOFF.
(Dtstrict Oou'rt, S.D. New York. February 21,1890.)
. Where several vessels8re all in fault for collision, the damages should be divided between them pro rata, .u.bject to the limitation of liability prescribed by section 4288 of the ltevised If the amo)1nt recoverable from either vessel is len than 'her share of the loss of the cargo, such amount should be first applied on ac· count of .the cargo; and. the other vessels or their owners are chargeable pro rata, U,p to their limit of liability, for the balanc.e of the whole loss ,of cargo belonging to third persons not in fault,and for 'Proportion of t':1e loss of any other vessel; but the latter, to make goOd the loss of cargo, must apply thereto any moneys coming to her for her own loss, so far as necessary to make good her share of the cargo loss. Either vessel thus paying more than her share of the whole loss is entitled . to the. benefit of the judgment agaiDl.t a,ny other party, up to the limit of hisliabil. ity, for any ,excess paid in the first insta!1C6 on his account.
In Admiralty. Settlement of decree·· George A. Black, for libelants. ' Goodrich Deady, for the Eckhoff. Jamea W. Osborne, for Hughes and Sherman.
J. By the collision between the bark Doris Eckhoff Rnd the schooner Flint, the Flint and her cargo were sunk and damaged. The. damages have been ascertained as follows: Damage to the Flint, $4,665; damage to the cargo, $8,205.26; master's personal effects, $118.97; damages to the Eckhoff, $939,74. The ,Flint was in tow of the. tug Stevens; the Doris Eckhoff was in tow of the tug Carter. All four were found in fault. 'l'he,re was no damage except to the Flint and her carg6, and $333. 74 damages to the Eckhoff'; and the damages were ordered to be apportioned. The tugs, being in custody in the eal3ternqistript, werenot joined in this libel with the Eckhoff; but their owners, Hughes and Sherman, were afterwards made co-respondents, under the fifty-ninth rule. All claim the benefit of the. limitat.ion of liabilitypro,vided by section 4283, Rev. St. ,D. . The owners of the Eckhoff and the Carter, not being privyto the faults of those vessels, are entitled to that limitation, namely, to the extent of their interest in those vessels. It is not necessary that they should pay the money into court, or make any surrender of the vessels, having set up the defense by answer. 'l'he Scotland, 105 U. S. 24,33, 34; The Great Western, 118 U. S. 526, 6 Sup. Ct. Rep. 1172. The value of the Eckhoff, as determineg, is $7,666.26. The value of the Carter is fixed at $2,430, of which Hughes' five-eighths interest is $1,518.75, and Sherman's threeeighths interest is $911.25. Hughes is also entitled to a similar limitation of his liability in respect to the Stevens, whose value is $505. His half interest in her is $252.50. Sherman, the owner of the other half interest in the Stevens, was master of her at t.he time of the collision, and chargeable with her fault; and he therefore is not entitled to any limitation of his liability under the statute, as respects her share of the loss. In the apportionment of damages, under these circumstances, and in the