THE. ·R:r.vER MERSEY.
Co. t1. THE
(,D,istr£ct Oourt,S. D. Nf/U) York. January 8,1892.)
Upon the subihission of the cause on the pleadings. averments of new matter in in the,libel and denied generally, must be wholly disregarded, as unproved, except hi so far as they may'be admissions against interest.· ' "
DEll,EJ,WTS iT SEA-DANGEROUS OBSTBUCTIONS-DESTJllJ.(lTION. OF.BY OTHER VESBIILB PERS()NAL .TORT.
.A:. scOW hi tow of a steaUler on a voYage from Charleston to Nicaragua having broken adrift off Fortune island in ll:!90, was driftiI\g in the.track of steamers up and down tbe ' coast for over three weeks, When she was taken in tow by the defendant steamer, and on the rollowing day set fire to for the purpose of destruction. The libelants, according to the libel, had ,n.otice f,rom tiIDe t() time this interval of.the w.hereabouts of the scow,lbut ,gave no eviden,ce that they made any efforts to rescue her, or that they intendlkl to do so.' Held, that the inference from these facts was that the scow was abandoned bY the owners, to be dealt with by other vess,els tbat might meet lier as prudence shOUld dictate; that bY,th, nature of the vessel' sbe was an obstruction dangerous to navigation; and there',being no evidencecof her value,or that sbe was worth salvage, held, that was no presumntion, in the absence of evidence, t1\at the aot of the master, of tbe Riover Mersey In (1estroyln,:( this obstruction was either tortious or negligent; but that it was presumptively a beneficial servioe in the publio interest, for the sl,lfety of and propf:lUY IltVea,-a work similar to that. in whioh the publio vessels of 'maritime lIat10n8, including our own, are more or less engaged. Held, alllo. tbat· the"mallter'saot, if tortious. was a personal tort, and not being done for the the ship, or thecoursll Qr navigating the ,shiP. or within the scope of his: powers as 'representative of the owners, neither the owners nor their property Were liable. ' ' ' ,. '
In Admiralty., North .America.n. Dredging & ImproveRiver to recover for the ment .Col:npanyagainst deBtructiC)u;ol'a scow I the,.property of libelant. Wheeler, Cartis &: Godkin, for libelant. &: Kirlin, , for claimants. ;.( ;",,.> ;'; ,;' ':;;:
BROWN,J. li;hal was filed to recover· for alleged damages to the libel!J.nt for setting:'pl;l,:JiI'El a scow belongin,gto the libelant, which was adrift at sea. ThesoOw waaone 01 four which, while on l\ voyage
of the West Indies. No evidence was introduced on either side in support of the allegations of the libel or answer. The case was submitted upon the pleadings. The answer admits that the scow was picked up on the 6th of August, about 3 P. M., and taken in tow uutil noon of the following day. The scow had then been drifting to the north-eastward for a little over three weeks. The libel alleged "that the libelant, on or about the 16th of July, 1890, received notice that said scow had gone adrift; that at various times thereafter the libelant received from incoming steamers and other vessels notice of the whereabouts of the saill scow, lind kept itself generally informed both of the position and condition thereof; that about the 7th or 8th of August, the libelant received
isoowand of her position from the" steamers which' had sighted said thain:forrnation received by 'the libelant showed that the scow· w!l.s about 80 miles off shore, about 'Opposite Fernandina, Fla.; imnieqiatelyuponreceiving'said information the libelant chal"tered a pdwerful tug, the Wade Hampton,atOharlEiston; and dispatched said tug in search of the scow; ' *alld that but for the wrongful act of the steamer 'Riv.er Mersey, and those oh boo'rdof her, lis above set fOrth, she would have been able to:plckup and!l1ive said scow." The libel further alleges that the scow waSitaken in tow upon allalvagaserv;;' ice, and that the the service, ahdset fire to'the scow. The 'artswer denies tha.t ishe' was titkeh1upon a salvageserv.. ice, but allegeatl1ai,bein'g in thettlilik Of vessels going up anti down the coast; "she was very dangerous to ,na'yigalion; arid as she wouldeontintle to be so, ,drifting'along with the ,current, themoster thought it'prdtlent to remove her, by wwingherasfal'as'possible to the northwltrd':a:nd westward inside of the 'Gulf stream;. heinterided to set he'r'aatift: Next day; at noon; having position of' the steanier, and that very little progress had 'beeIim'il<le during the'time the tow,and as the weather was glOOllly and the sea rising a little, tel'decidoo to cast the scow adrift; and; as she have been the'means 'Of great lOBS of property. and perhaps lives, he had her set on to her, and',So,'tel'!love a dangerous obstrliction to navigation. It WttS'llevel' the intention of the 'inaster 'to tak'e the scow in port,. as he -did not, think her worth salvage." As neither sid(\ have put dence, norie of the of either that ate not admitted cali, 'under role StoBhe supreme'cbUrt,b'e considered as'fab£s,except those in the nature of'adillissiotls against interest. I canuot, therefore, al1lSU111e that the libelants sent olitil.'tu'g, as alleged; to 'find the scow; or that they .ever had any intention df making ant efforts to rescue her after tbey learned,: about July 14th, that she 'Was adrift; anaias they adIo'it that they bll.dhad Of her general whereabouts for about 'three weeks before she was seton 'fire, this'kriowledge,with no effort or intent toree1aimher being shown, lllust be treated as equivalent to an donment of those who might meet her to deal with het' :as prudence slibuld di<itiite. ' So, 'also, there is an entire absence 'of any 'Cvidence indicating thtrt,the scow 'Wa.s ()fatiy market value, or that waswotthsalvage,' ih'her abandoned and derelict condition·. Without sucb proof rio decree 'sh()uldbegiveri; Libels in admiralty arendt entertainedfarmerely nominal damages. On the'other hand, from the nature ofthevessel itself, which was'a scow low ih the Water,showing' little to :atlract'attehtion, and from/the pbsition in the ocean assigned to her by bothth'e libel and that ilnewas of spedal to life and 'l'toperty in The nunierous vellsels pursuing the usuitl of navigatioti in going up and down the coast. The tle.gtruC1;i<,>nof suchdangetotls obstructions in the fairways of the sea, either is not tortious whlm'aWaildoned, or wheh'notproved to be 'Or'acthm,ble, 'but rather a praisewortHy' The r-emdvdlJ(jf such' obstrudtio!;is,; in 'the 'Atlantic,·
to lifeamLproperty through r impossibility of taking a,nyadequateprecaqtions against them at night, in darkness, or in storm; ,bas beco,me 8 matter of interna.tiona! concern. Every year are caused,hythem. See 3 !'ro. Mar. more .or less Conf. 308--3J7, ,482. Directly interested as ,all private individuals engaged in eommercemllY be in removing such dangerous obstructions work is,. often attended with such difficulty and delay, whenever !.Qet, and of the voyagll, that private hands cannot be, relied on to ,work. FW I;lome.yearspast, therefore, the public vessels of our own, have been more or less engaged inclellring the ,seas of these. obstructions. The work of our by yirtu,e ,of any statut()ry authority, but own navy iP"tb,lll ficl.d .under tbeJaw,ofnecessity,for the protection of life and property, and public good·. f\,gainst such interests, nq mere technical for rightsQf in derelict vessalscan be. set up in a court,.ofadmiraltYi and a reQJovljol of SUl;lh objects, if justifiaple when rq¥allyJ,ustifiable when done. unde,r similar done by public (lircumstances 'by private han,w,. SQ,far. as I; have been able to ascertain, ,pres<#bed for the government of our public vessels, no as to what, derelipts shall bedestroYed a,t once, or what shall be allowed .8 longer time for. possible I rescue. This seems to. be left to the individual, officers in cOl11mand, having reference to the judgment and circumstances ofthe derelict. Not:only does the , general; jq.dgrnent of the rePresllntatives of maritime natiolll;l.approve of prollecutionwith mqre vigor has been lIarnestly advothis work, li>ut cate.d, 3,Pl'9.. Mar. Conf. ,. 'Ubi B'ltpra. That no private rights should be held infringed by this serviqe, when it is carried on with rflasonable judgno mannerofdouht. The neglect by the owners to take imment, I mediate steps to, derelicts in the pathways of commerce, when their position is reasoJ?oftbly known, ought to be treat.ed as an abandonment of them, as I pave already said. to be dealt with according to rhe derelict in the best judgment of those, in, whose rray they cx:aft;showl;! but little this (laSe waa:,a/f,the pleadil}gsstate, a SCow. isver'lpeculiarly, perilous in a frequented which is /lubjectto,the most violent tempests storms. Had the master supposed the scpw worth salvage after having, taken her in tow; there isnQconceivablemotive why,he shouldnot:have continued pnwith her. ,IblUle nothing, however,upon the ,averments of .the answer,: But without furthe! eXJllanation than the libel itself affords, ;Ironst destructioJ;l, of an object of that kind, in such a place at sea, of no. proved value, and presumptively abandoned by the owners, presumption of negpgence or wrong, and is not actiondoes not afford able.. Even if the master's act we,t:e.unjustifiable and tortious, still I think this libel.in"'l1m against the yessel could not be maintain!!ld; because ,the the master in setting the scow on fire, if not for the rea,sons above stated, was a purely plIfsonal tort of his own, for which he was and those who participated in the, act were alone liable. The benefit to the ship, or by not done in the service of the ship,qrfor,
any act of negligence in the navigation of the ship; nor was it done in the execution of any duty of the master to the or to her owners; nor was,the act within the IJcope of the master's duties or powers as the representative of the owners. Neither the owners, therefore, nor their property, can be ,held legally answerable for it. Libel dismissed, with cosm.
'THE ELECTRo-D'YNAMIC BIGLER tJ.
fl. TJIE ELEa.m9N.
Court, S.,D. New
.TmusDIOTIoN-BUPPLPlls:-DAMAGES FOR BREACII GJ' CoNTRACT. ".
',' A:coritrlU3t for supplies ,to avessel.being amaritimecontl1loct, a court ofadmlralty hasp.Bljjsqletion to give damages for II< preach of the contraetas to the quality of tbe BUPPllea furnished, or tor misrepresentations, 01"' other breaches in the performance o:Ht.n: ' ' , , oliri!Ji,' Is entitled, under role 53, to security from the libelaUt, upon filing a croBEillbel,tq for breaches of the, same contrlloOt (l11' which the , sues;' .
. .'In 'a.suit'in rem for the price of such suppHes, the defeudant, having given Seo
In Admiralty. The Electro-Dynamic Company 6fPhiladelphia libeled the yacht Electron to recover for machinery furnished. James Bigler filed a cross-libel, and moved for stay until security is filed. Wilcox, Adams &:- Green, for motion. Robi'TUlCm, Bright, Biddle &:- Ward and Mr. Ward, opposed. BROWN, J. In the first libel the claim is for $2,106.08, with interest, the balance pf a ,bill alleged to bedue"in and about the refitting and repairing" of the yacM Electrim, belonging in Philadelphia, by furnishing her. with a quantity of electrical machinery for the purpose of by electricity. The yacht was arrested' and released on propelling security given, and has answered, alleging misrepresentations an4 ,Qus in, the performance of the contract under which the repairs were furnished. and an offer to return the articles. The cross-libel alleges the same misrepresentations and breaches, andclaiins damages by reason thereof in the sum of $4,553.04. Undtlr the fiftythi,rd rule of the Supreme court in admiralty I she now moves that the respondents' proceedings in the original libel be stayed until·· security is given for the damages claimed in the cross·libel. . The defense to the o:riginitUilbel i!l the same as the ground of claim in the cross-libel. . The (',age is therefore within the fifty-third rule of the supreme court in' admiralty,li3 construed by this court in the case C1'edit'Lyv.48F.no.8-44