The gradual filling in of the bottom around the lower end of the dock was known to the officers:of the, city. The last dredging was in February. 1889; the dredging next prior was in September, 1887,-17 months .Two or, three feet,. the evidence spo,ws,had collected between those two dredgings in 17 months. This accident was 19 last dredging., .' . months The libelant's boat had repeatedly been at the same wharf before with similar loads,' and met with no difficulty. There is no evidence as to managed onthose occasipRs. The man in charge at this time had never been there before. He knew nothing of the depth of water; mnde no inquiries on arrival; made no soundings, and gave but small' to his but much slack to his stern-line; and he went to bed without breasting off or making any other provision for the safety of the boat during the night. Upon the,above facts I think both parties were in fault; the city, for nut dredging again about the lower end of the dock after a lapse of 17 ¥IonthS, when, as previous experience had shown, new dredging became neceE'sary, and the accumulations of sand there being known. The man in charge of the in tying np for the night at such a place as a dock on the Harlem river at 155th street without sounding, or inquiring as to the depth of water, or breasting off. Ordinary prudence and the habits of boatmen insl1ch locations are to make soundings, or otherwise ascertain whether the boat can safely lie over low water before leaving her without attendance or watch for the night. . This duty, however; does not relieve the city from the obligation to remove by dredging at reasonable intervals the accumulations from drains at public wharves where they are inviting boats and collecting wharfage. Decree for the libelant for one-half the amount of his damage, (Christian v. Van Taesel,12 Fed. Rep. 884,) with order of reference to ascertain the amount.
Court, S. D. New York. February 4,1892.}
It was proved that, in "straight" logwood (i. e., not roots or trunks with branches) in Jamaica, it is not customary to cut any considerable quantity in lengths of less than three feet, such outtings the value of the cargo. A deduction beinl\' claimed. by the ownerli of the cargo of logwood from the freight due the carrier because 72 tons of logwood were delivered so cut short for the purpose of stowing a full cl/orgc. and a!fainstthe protest of the shippers, but the evidence being inconclusive 8S to the exact amount of the shortcuttlngs, hetd, that an . allowanoo for 50 tons of short cuttings would be just. LibelanUi for $216 and recovered judgment fot' $68.59. Beld that, as respondent was successful on the main issue, the decree should be without costs.
VICTORY FOR RESPONDENT.
CARRIBRS-DAIIIAGB TO CARGo-J"A1IIAICA LOGWOOD-SHORT CUTTINGS-Ct1STOIII.
.. CoST8-DBOBBB FOR
In Admiralty. ants.
Suit to recover a balance of freight.
Decree for libel-
DICKIE tl. WILSON.
Wing, Shoudy & Putnam, for libelants. Henry D. Hotchki8s, for respondent.
, BROWN, District Judge. A deduction of $216 \s claimed by the respondent from the amount of freight due on a cargo of logwood brought to New York from Black river, Jamaica, in March, 1889, by the bark Bluebird, whioh had been chartered to the respondent for that purpose. It is not alleged that all the logwood shipped was 110t delivered; but that instowing the cargo about 72 tons out of a cargo of 436 tons were in pieces less than 3 feet in length, which had been out from the logs by the stevedore of the ship for the purpose of stowing a full cargo. Freight was to be paid by the ton; and it was the interest, therefore, of the ship'to take as full a cargo as possible. The oharter, unlike many recent oharters, contained noprovision against cutting less than in lengths of three feet. There is sufficient proof on behalf of the respondent to show that, on contracts for the sale oflogwood in New York, it has long been tbecllstom to make an allowance to the vendee if on delivery more than 5 per cent. is found cut in lengths less than three feet. But the custom between vendee and vendor in New York does not, I think, affeot the ship in the performance of a charter in respect to the mode of loading in Jamaica. The question concerns the loading there, and the ship's authority by the oustom there to cut logs,· and if so, to what extent, for the purpose of compact stowage. The evidence leaves no doubt that Bome cutting is necessary, and has long been authorized by the custom of that country; and that cutting is much less necessary in taking cargoes of straight logwood, than in taking cargoes consisting more or less of roots, or logs with branches. The latter must be sawed or cut considerably. I think the weight of evidence on this point is with the respondent, as to the custom at Jamaica. It was well known tbat cutting any considerable quantity in lengths less than three feet materially diminished the market value of the. cargo; and all the witnesses engaged in tbe trade there testify that there was no need of cutting, and no practice authorizing cutting, in lengths less than three feet in the case of what is called "straight" logwood;and the respondent's witnesses say this cargo was all of first-class straight logwood. The mate says that there were some roots and branches which they had to cut. But his testimony is too indefinite and insufficient to account for so considerable an amount of short cnttings 8S was made in this case; and the ship-masters that were examined there had too little experience, or were also too indefinite in their testimony, to overcome the evidence of the respondent's witnesses. During the loading repeated objection to the sawing of the wood in short pieces was made by the shippers to the captain and mate. The failure, however, to ascertain, during the discharge of the ship, the true amount of short cuttings, makes it impossible to decide the case with any accuracy. In the course of the discharge a considerable quantity of short cuttings was noticed and complained of; but no eBort was made to separate the short pieces, or to determine their actual numbeY,
until the cargo had been more than half discharged, and removed for consumption. The amount of 72. tons claimed in the answer, is an estimate derived from the proportion of short cuttings observed in what remained of the cargo after more than half had been discharged. But oneoftne libelants' witnesses testifies very positively thllt a considerable amount of the shorter pieces during the earlier part of the discharge was to fall down and accumulate in the hold, and was not taken out until the last. This would make the proportion in the last half, or third, of the cRrgo greater thun in the whole cargo. On the Qtherhand, one of the witnesses for the respondent who saw the unloading every day, testifies that in his judgment the proportion of short pieces remained about the same during the whole discharge. Under such circumstances, though I think the respondent is entitled to some offset, it is impossible to say that the amount of 72 tons is really proved; but as some aCCl;lmulations of small sticks, in dealing in the usual way with a cargo of large and small ones, would naturally arise towards the end, I CIlD only determine th e matter as a jury under such circumstances would be obliged to do, and allow such deduction as se.ems probably just and equitable. I allow, therefore, for 50 tons, at the proved damage .of $3 per ton, making $150. Deducting this amount from the amount<>funpaid freight, there remains $68.59 for which the libelants may ta.ke judgment, with interest; but as. the respondent is successful On the me,in issue in litigation the decree must be without costs.
THE CITY OF
(Dt8trWt Oourt, S. D. New York. November 21, 1891.)
AOTtoN8 POB NEGLIGENCE-FoBMEB TI;UAL ATCO!DION LAW-WRliN A BAR IN An.
MIRALTT. . " Concurrent negligeoceof the plaintiff being a grouJ;ld for dismissal of an action for negligen<le in a cOllllllon-law court, but not in adllliralty, a plea of a forlller common-law. adjudIcation for the defendant is not sufficient unless it appear that of the adjudlcattonwas absence of fault in the defendant, and not proof of fault .in the plaintiff. It appearing in this case upon submission of the stenographeris notes of the former trial that a verdict for the defendant was directed by the judge, because the facts proved did not constitute negligence in the defendant, heW, on exceptions to the answer, that this would constitute a bar to the present action.
In Admiralty. Libel by James Carmody against the City of Rome for personal injuries. Hearing of exceptions. A. G. Vanderpoel, for libelant. Frederick G. Gedney, for claimant.
BROWN, District Judge. Exceptions to the libel have been filed bJ' the defendant setting up rell adj1tdicata upon a trial of the same matter action brought by the libelant against the owner of the