GREENWOOD 'V. THE FLETCHER AND THE GRAPESHOT. 1
(DiBtrlct Court, S. D. New York. May 14, 1890.)
1. ..o r"'GBB-SALVA.GB :M:oNBy-,INTERBsT-CosTs. , When a vessel was sunk by fault of another vessel, salvage money paid out by theowll,er oUhe sunken boat isa proper item of damage to be allowed against the wrong.doer, with interest thereon, as well as on other expenses of repair from time of payment, but not costs or counsel fees paid in defending a suit for such sal" . ' The boiler, on being removed from a tessel which had been sulik by collision, was found to be cracked. Libelant claimed'that this was caused by the sudden submE'lrsion of it in cold water while it was Held, that the claim, being of an ,unullual kind, olight to be sustained byevidencecorrellpondinglyconvincing. The evidenC'e not meeting this reqUirement, held, that this item should be disallowed, together With. such demurrage as had been ,allowed for while repairing the boiler.
2. SAMB-DAl,U,GB TO BOILER-Evl])ENOB.
In On exceptions to commissioners' report. ' Hyland' <to' .Zabriskie, for Wilco:t,;.4dama, k Macklin, for claimants. ,.\ ,
'1. The libelant's canal boat Hebe having been sunk in the North river through the fiult of the above defendants'vessel, (38 Fed. Rep. for salvage' services to the sunken boat afterwards arose, whiqh was allowed in the district courtof New Jersey to the extent $39 costs of suit. In the assessment of damages, the libelant has been allowed this salvage charge, but was disallowed the'costsliocliided in thedecrea, as well' as the much la.rger costs for the fees or his own counsel hicurred in the defense of that suit. Theqtiestion as to both these classes of costs arose in the eastern district of New York in the case 'of The Homely and The C. F. Ackerman, S Ben. 4950004'98, where both were disallowed as items of damage against, the .and this decision was affirmed by Mr. Justice HUNT on circuit court. 'I am not at liberty to depart ftom that adappeal' to . . judication. 2. Net>J/lreight. As respects the sum of $191.20 for the loss of thefreight On the'pending charter, I think there should have been a further deducti()n for expenses for the wages and board of the master, engineer, and deck-hand, for six days, amounting to $36. This would leave $165.50 for net frelgpt,which is allowed, with interest. . 3. Boiltr. I am not sati'sfied with the evidence. in support of theclaim for· damages to the boiler. The boiler rested vertically on top of the furnace. After the collision the boiler was taken out, and the lower end, or crown sheet, was found to have two or more cracks in it, which it is estimated would cost $262 to repair. The libelant contends that these cracks were caused by the sudden submersion of the boiler in cold water while it was working hot. No previous instance is shown, either to the adjudications or in the evidence, where the crown-sheet of such
Reported by Edward G. Benedict, Esq., of the New York bar.
GREENWOOD tI. THE FLETCHER.
a boiler was cracked from such a cause; yet the sinking of tugs, under a similar"circumstance, is liot uncommon. The claim, being, therefore, of an unusual kind, ought to be sustained by evidence correspondingly convincing. I do not think the evidence meets this requirement. The evidence of the defendants' experts, that such cracks could not be caused in this manner, is quite as strong as the testimony of the lihelant's experts, and seems to me much more probable; inasmuch as the only access of water to the under side of the crown-sheet was through the door of the furnace, and over and through the raging fire within it. There is no proof, and I very much doubt, that any water that thus made its way to the crown-sheet would be cold enough to harm it, or would, in fact, he col<1 at all. All the witnesses also say that the same cracks might be caused by dirt and grease. " The condition of the crown-sheet had not been examined for at least several months before the accident. At that time Hogan repaired a' bulge in the furnace. He says he also examined the boiler or tubes, and sounded them. But the examination mu.st have been casual, if the boiler was the same; for this boiler had several ferrules about the tubes, and Hogan says that at the time when he examined it there were no ferrules on the tubes. The engineer and deck-band both state that the boiler in use at the time of the accident leaked; and, as I understand the testimony, there was found after the collision a further bulge in the furnace, showing injury since Hogan's last repairs. Much testimony was given to show repairs to the boiler during several years previous; but near the close of the libelant's testimony it appears that the boiler in the Hebe at the time of the accident was not the boiler on which those repairs had been made, but was an old boiler taken out of the Marshal, and put into the Hebe; and, as the Marshal had a new boiler in 1888, it is probable that of the Marshal was put in the Hebe about that time. The fact that the libelant should introduce testimony as to repairs to a boiler which he knew was not the one that was in the Hebe at the time of the accident detracts from the credit to be given to his own testimony. The fact also that, after the accident, the boiler in question was taken out of the Hebe without any knowledge of these cracks, and therefore not in consequence of them, and so far appears without any reason, if it was previously sound or supposed to be sound, (for removal was not necessary to repair a bulge,) that no notice of any survey was held upon it, and that no claim to any such amount as is now claimed was then presented, and that no repairs have since been made on it, tend to confirm the belief that the boiler before the accident was known to be old, worn, and out of repair, and not fit for much longer use. To my mind, there is no satisfactory proof that any material change in the condition of the boiler was produced by sinking, and I therefore disallow this item, together with 10 days' out of the 15 days' demurrage allowed for the repair of the boiler and engines, 5 days being sufficient for the repair of the engine. The libelant is entitled to interest on the item of salvage; on the net freight, as above corrected; on the amount allowed for repairs on the hull from the time of payment, March 13, 1889; and
on the for 19 days, at the rate allowed by the· commis. sioner, whioh agrees with my own computations. The other items areall.owed as reported, with interest.
t1. CITY OF CHICAGO
(D£strlct OouTt, N. D. nUnoi& Maroh 17,1890.)
1 TQ1FAQB-LuBILITY OJ' TuG rOB NBGLIGBNOB. . Libelants' vessel, with a beavy cargo, was heinl': towed by delendant towing company's tug-boat tbrough a draw-bridKe aoross a navigable river. The draw was .sO obstruoted by vesseltbat ln, order .to pass it was necessary to take towtbrougli at a ,The pier of the bridge wano constructed that the abutment, instead of slopiilg'gradually from the bottom up, rose in a series of Itone 'steps, thecotners of ,w!licbwerecODcealed by thl! water. Piles coming above the surface of the water had been driven' around this abutment to prevent passing veBBels from strilting, but bad jus," been removed by defendant contractors for the . purpose of building another !:lrldge,across the river, under a contract with defendant city. The tug took the veBBel in tow at such speed that it lost control 01 bel'. 'and she was injured by striking the abutment. Beld, that the tug company was liable for. sue!;l injuties, since. they were ca.used by tbe. negligence of tq.e men in . charge of itl! tug. .'. . S; 'NAnGAllLB WATERS-BRIDGB CONTRAOTORS-NBGLIGENOB. The bridge contractors, baving 'taken up tbe piles wh.ioh would bave proteoted .the were als\) liable,wbetherthey knew the mode in wbich tbe abutment was coustruotedor not, since bythetr contract witbthe city they agreed to be responsible for any damages the city mil1:ht have to pay in consequence (0: their neglect to protect the publio against acofilents, and tbus placed themselves in the same position as was occupied by tbe oity, whioh was ohargeable with notice of the construotionof the abutment. '
In Admiralty. Libel for damages. H. D. Goulder and George W. MC11'gan, for libel!lnt. Bell/Ulyler kKremer, for Vessel Owners'.Towing.Company. BaU k, Oakley, for Fitzsimmons & Connell Company.
J. This suit is brought by the owners of the steam-ship Wallula, and the underwriters Upon her cargo,to recover for damages su\,tained by said steam-ship and her cargo from a collision with the south abutment of the Wells Street bridge, in the Chicago river, on the 9th of April, 1888. The original libel made the city of Chicago, the North Chicago Street RailroadAJompany, the Fitzsimmons & Connell Company, and the Vessel Owners' Towing Company, respondents, charging them all with having contributed to the darnage sustained by the libelant: but the suit has sin.ce been dismissed as against the North Chicago· Street Railroad Company. and was brought ,to hearing only upon pleadings and proofs as against the remaining respondents. The proof shows that the steam-ship Wallula, with about 66.000 bushels of oats on board; left the. St. Paul elevator,; near the junction of the two branches of the Chicago, rjv:er, soon after dinner-time on the afternoon of the 9th of April; to. proceed down the river to the Illinois Central Railroad slips, where she was to take on the balance of hercargo at