'fb
ASPOTOGAN. .
163
Tui WILLIS
ASPOTOGAN. 1 THE ASPOTOGAN.
V.
(District Court, E. D. Penn811wanw. January 5, 1892.) SHIPPING-LIABILITY FOR PERSONAL IN'.t"ilIEs-SB..b rEN UNLOADING CARGO.
Libelant, a seaman engaged in unloading wood from a vessel, was hurt by the fall of a tier of wood, caused by the mate's withdrawal of a cleat. The removal of the cleat was necessary in order to unload the vel\sw, and. was effected in the ordinary and proper manner, and 'after re'peated warnings, which were beeded by all the men at work except the libelant. Held, that no negligence could be imputed to the mate, as he in believio&, that libelant would he,ad the warninl{B.
In Admiralty. Libel by George Willis, formerly a seaman on board the bark Aspotogan, against said bark, to recover damages for personal injuries sustained while unloading cargo. Libel dismissed. . John F. Lewis and Oharle8 Gibbons, for libelant. Alfred Driver and J. Warr81l Coulston, for respondent. BUTLER, District Judge. The libelant, a seaman on board the bark Aspotogau, was injured while assisting to unload a cargo of lumber, which she carried to Rio de Janeiro, and sued for damages-charging his injury to .careless and wrongful conduct of the mate, as follows: "Libelant was working between decks, and was running the planks out of the bark through the port bow, onto lighters. A large tier of planks was piled up along the port side of the vessel as they had been loaded, and were held in position by cleats of wood which had been driven in between the planks and the be<tIDs of the vessel. The mate of the vessel was supelintending the removal, and while libelant was busily engaged in counting his planks, the mate, Without a worej of warning, knocked away one of the cleats Wllich so beld up the said tll'r of planks, and in consequence of the loss of this support, the tier ot planks fell down and burled the libelant under their weight, in consequence of WhICh his left leg was broken and other serious injury sustained, .. .. .. without any negligence on his part whatever."
The answer denies the imputed negligence and all liability for the injury. The mate was superiutending and assisting; and several other were engaged in the work of the lumber, as the libelant was. He alone, however, was injured. The master was on board. The testimony of the libelant, upon which alone his case rests, is contradicted by that produced by the respondent. A careful examination has satisfied me that the charge of negligence is not sustained. What the mate did was proper and usual under the circumstanceS. It was necessary to remove the cleats and it was customary to ·do it as he did. The testimonyseems to leave no room for doubt that he gave ample and repeated warning that he was about to do it, which the other workmen heard and obeyed. The mate was justified in believing the libelant would also heed it. Why he did not is explained by his statement immediately J8eported by Mark Wilks Collet, Esq., ot the Philadelphia bar.
RDERALRE}!ORTER.,
vol. 49.
after the occurrence; he thought himself safe where he WlUl. The testimony justifies a conclusion that his, resulted entirely from his own want of care. It is unnecessary therefore to consider the legal question raisecl-that the vessel was not ;responsible for the mate's negligence, if he was negligent. The libel must be dismissed.
THE OolPlC HbRN PIGEON.
Dol CROUZ' et aZ.
tI. THE CAPE HORN
PIGEON.
(District Oowrt, N. D.DaZVornm Januaryll'/',1888.) I. On a question whether tl1e yalqation of ,whalebone, which fO:rmed the basIs of II eettlement between certain whalers and their men, was fair and reasonable, it appearing that therll.was no mariket,th,erefor in San Francisco, where the ,settlement was made, the value must be fixed upon the basis of the selling price in New York, , with proper deductions for the expense of sending it there and preparing it for sale. The settlement, complained of was made at per pound for the men, and it appeared that, in order to 'pay this amount without loss, the owners must realize tl,.77per pound in NewYorlLThehig-hest o:ffer they had received was $1.50, whioh they refused, and they had thep.,oftered ,to sell &\2,.whiph was not ,accepted. Several ship-owners and agents of experience in the business testified that the settlement was a fair one, and it W,l¥I IIhQW!1 ·that many of the same men had engaged f1lr the fOllowlnf season at $1.25 per pound if the, catch exceeded 200 whales, and $1.50 per }lound i it was less than that number. The catch for the season in question was 845 whal-ell. Hew" that the settlement should not be disturbed. SBAJnlf-RII)[UlIBBATION OP WHALlIM-!SIITTLBMBlfT.
LSAMB.
'
In Admiralty. Libel by ,J. Al D,a Crouz and otIiers against the whaling bark Ca.pe Hom ;Pigeon. , ' , " ', ,Daniel T. Sullivan anq 1'. ,Va:nNprrnan, for, libelant. Miltun. Andro8 and Chas. Page, for respondents. :ttOli'FMAN, Bistrict J udge'.' ·This.is one of the' libels filed by th,e wpich arrived 'at ;this port at the close ofla.lilt year's whaling Os!lll;son,to,J>rocure a Fevisioq by the court of the settlements or offered to It stipulated by the advocates; representi,ng all the a,nd all the libelap.ts that the testimony,should be confined to the in,quiry, whether the valuation of the were oil and Done, which formed the ,basis on Which the men's made up and adjusted, was fair and reasonable, and, if not, the court should determine on what valuation the accounts should be restated. The. testimony was quite volu.minous. I have very carefully perused it. The conclusioQal have reached are in accordance with the impressions , I received from hearing it or!Jlly delivered. 1. With regard to the oil, I think it is conclusively shown that the, price at which it was valued was fair" if not liberal. 2.. As to the bone, it seemS' that there is' no market for the bone in this city. The valuation on wl::lich the accounts must is the