POST t1. BOSTON
S. S. Co.
(Oircu.f.t Oourt, D. Massachusetts. November 80, 1891.)
ApPBAL ur ADMIRALTY-REVIEW BY CIRCUIT COURT-QUESTION OIl' FACT.
On appeal in admiralty the circuit court will not reverse a decision of the district judge upon a question depending on conflicting testimony, unless it clearly appears that the decision was against the weight of eviden\l6. . Nor will the circuit court interfere with the amount of salvage allowed, unless it Is strikingly out of proportion to the service or damage. '
._. SAME-AMoUNT OIl' SALVAGE.
In Admiralty. Libel by the Boston & Philadelphia Com- , pany against the coal.barge Albany for salvagesel'vices. Decree by the district court for $4,000. 42 Fed. Rep. 64. Aaron Post, claimant, appeals. Affirmed. , Eugene P. Carver, for claimant, appellant. Shattuck de Munroe and L. S. Dabney, for libelant. On aD appeal in admiralty to the circuit court .quesHonsoffact depeudentupon conflicting testimony, the decisiODof the district'judge, who has hlld the opportunity of, seeing the witnesses sud judging from their appearance, should not be reversed unless it dearly appears that the decision was against the weight ofevidenoo. The Grafton, 1 BIatchf. 173, 178; The Sampson, 4 BIatchf. 28; The Fl(1f-' ida, Id. 470; The Suwwick, 5 BIatchf. 280; Levy v. The Thomas MelviUe, 37 Fed. Rep. 271; Guimarais' APPMl, 28 Fed. Rep. 528. Nor wilrthis .court interfere with the amount of salvage allowed by the district court, unless it is strikingly out of proportion to the service or damage. The Narragansett, 1 Blatchf. 211; The Hope, 10 Pet. 108, 119; Cushman v. Ryan, 1 Story, 91; The Yankeev. Gallagher,l McAll. 467,479. Ihave .carefully examined the record in this case, and I find no sufficient ground for disturbing the conclusion reached by the district judge. Though the amountawarded,-:""$4,000,-waslarge, I do not think, under the circumstances, it was excessive. The Mary N. Hogan, 30 Fed. Rep· .381; Th,e Lahaina, 19 Fed. Rep. 923; Th,e Btmuon, 36 Fed. Rep. 793. The decree of the district court is affirmed.
FEDERAL REPORTER ,·vol.
A person 6nlraged in the business 6ffUi'nishinli to the grain elevators in the port 'of Baltimore barges suitable for; osrrying grain to be used principally for storage when the elevators were full, ,and incidentally to carry the grain to ships loading in the harbor.hCh.a.rtered a canal-boat for 60 days, agreeing to pay for the first calk. .. ing thereof·. te-master thereafter. to keep her in thorough repair, and' to man and furnish her with all appliane·es·. The- purpose. for which she was' to be used was understood by both parties, but was not expressed in the charter-party. Held, that this was a maritime contract. . ._ . .. BA.MIll....BTIPttIJA1'tON :FoR CONTROL-LIABILIT'f -Ilq REM. Notwithsta!ldlng that the of the boat for the period of the contraot,tb,ebQat was liable in rern to him for an Injury to the cargo oaused by the maater'. fa11I11'eto keep het' in thoroilgh repair.
8. BAME-LEA1ONG-EvIDENOB 01' UNSEAWORTHINESS.
ADMIRAL'1'Y--'lbRITmB CONTRAOT-o-CHAR'i'BR 01' CANAL·BOAT POR USB IN HARBOR.
Before the boat was used. her ,deok was reoa1ll:ed at the oharterer's expense, which tlle maater said waaall the repairs she needed. After a short period of usel she was found to be leaky, and.rejeot;ed, Whereupon the mapter took her away, haa her repaired, and broug.ht her back, sa.y.iJ;lg. he had. found the ... and. fixed it. She was again loaded, and shortly after spru!lg a leak which causea an injury to the cargo·. Sh6"wll.8 then taken to a dl'y"dook. where the oakum' was found to be out of lIer sel¥lls .in .several Held suffioient to show that thA injUry was due to a breaCh'of the agreement to keep her in thorough repair, and she was therefore liable foi' the damages. .
In Admiralty. Libel by John Wood against the canal-boat Wilmington. The libelant, Wood, made a contract for the use of the Wilmington, which is.as follows:
"I. John Wood. on this 19th day of J lIJy, 19sO, charter from Dominick Magrlldy th6 boat kqqwn alld called ,the Wilmington. (of w hieh the said Magl'lIdy is master a09. for pf. sixty days from date. The said John Wood agrf68 pay the said Mag/,"udyJIIl;l/lUm of two hundred and fifty dolJarsfor the above-named sixty days·. -'fIle said John Wood Ilgrees to pay for the first calking of the said boat;ltfter Wllich the said Magrudy agrees to keep said lJoat in thol'ough repair. and to "man and furnish her with all IIppurte. nanees." _ . - ' : The testimony shows that' th/dibelant's well-known business was to furnish to the grain elev,ators in the port of Baltimore barges suitable for carrying grain, which they needed when the elevators were full, and which they used principally for storage, and incidentally to carry the grain to ships which they desired to load in different parts of the harbor. This was the purpose for which the barge was to be used in the present case, and was well understood by both parties. The owner of the barge lived in Philadelphia; but the master of the barge, who had brought her to Baltimore, had authority to make the contract. Under this con- \ tract her deck was recalked at the libelant's expense, which the master '\ said was all the repairs she required. She then was twice loaded with !