market value of the'unsound'goods at the time of delivery. It is, however, often difficult to arrive at the market value of unsound goods. It may be that damaged goods of the particular kind are not often dealt in. It is often difficult to find merchants who will buy unmerchantable goods at any price, although to the consumer they may be as serviceable as before they were damaged. In this case one of the principal iron merchants, called as a witness, said he would not have taken the damaged cotton ties at any price. I am satisfied, therefore, thai; it will be much safer to take as the market price of these damaged goods the price they actually produced when sold, there being no proof of any change in the market. I think the libellants should recover the difference between the amount they have received from sale of the goods and the amount they would have received if the goods had not been damaged, "together with' the charges for putting them in a salable condition; less, however, the amount of rebate of duties allowed to them, and less the freight due the ship.
and the Scow No. 1.
(District Oourt, E. D. New York. January 3,1881.)
COMMON CARRmR-PERILOF THE SEAS-DAMAGE BY SWELl, OF ING BOATS-NEGLIGENCE.
Where a SCOW, built and used by a party for his own transportation business, was at one time hired out by him to carry a load of chalk for another party up the East river at New York, and in passing up in tow of a tug, on a hawser, was met and passed on each side by two steam-boats, that raised such a swell as to make the scow roll her load of chalk overboard, and an action was brought to recover damageS, lwld j that the owner of the scow was not a common carrier, and no negligence on his part or that of his agents being shown, was not liable for the loss of the chalk, although there was no exemption of "peril of the seas" in the contract made by him; he was only a bailee for hire. A ship-owner who carries goods on his ship for hire will not, by reason of his acceptance of the goods, be held liable as an insurer, in the absence of any stipulation to the contrary, against everything but the act of God and the public enemy, as is common carrier.
BELL V. PIDll,EON.:
Sidney Chubb, for libellant. Beebe, Wilcox <t Hobbs, for defendant.
BENEDICT, D. J. This action is brought to recover the value of a quantity of chalk lost while being transported through the East river upon a 'Vessel called Scow No.1, owned by the defendant. The occupation of the defendant is that of a dock and bridge builder. In his business he had occasion to transport dirt and stones, and for that purpose he owned and used several scows-flats conliltructed solely to carry rough matter upon their decks, and moved by means of tugs. The defendant employed these scows for the most part in his own business, hut he sometimes chartered a scow to other parties by the day or the month. He was not in the carrying trade, and was not in the habit of transporting any cargo except his own. His scows, whe,n' employed by him, were used solely to transport his own articles in his own business; when chartered to others, any transporting 'done by means of them was done at the expense of the charterer. In the present instance the libellant applied to the defendant to carry for him a quantity of chalk from along-side the ship Ruby, in the North river, to Newtown creek, at so much per ton. The employment was accepted, and, in pursuance thereof, about 200 tons of chalk were thereafter laden on Scow No.1 to be transported on the deck thereof through the East river to Newtown creek. The method of loading the chalk upon deck was in accordance with the understanding of the parties, and no fault if! shown either in regard to the quantity of chalk taken on board the scow, or in regard to the method of stowing it. When loaded the scow was taken in tow by a tug belonging to the defendant, and proceeded on her way to Newtown creek. While passing up the river three large sound steamers were met about off Grand street, coming down the stream nearly abreast. The tug, with the scow upon a ,hawser astern, was about in the middle of the river, going at half speed. As the steamers approached, the tug blew her whistle several times, and when they came nearer the pilot waved his hat to call their attention; he also stopped his engine. One of the steamers passed the scO'w to port, and two on the
starboard. On passing they went so near and at such speed as to create a swell" which broke over the scow and caused her to roll so that she dumped all the chalk into the river. There'was room for the steamers to have passed at a greater distance, and they might have reduced their speed, in either of which cases the swell would not have been dangerous. In addition to these facts the libellant claims to have shown that the hatch covers on the scow were insecurely fastened, and by reason thereof when the swell struck the scow the covers were washed off the hatches, and so a quantity of water was allowed to go into the hold, which by its presence in. creased the rolling of the scow and was the immediate cause of the loss of the chalk. But I am unable to find such a state of facts. The hatch covers were washed off by the swell and water went below; but the evidence will not justify the conclusion that the water taken in through the hatches conduced in any considerable degree to the loss of the chalk. There is no good reason to doubt that the chalk would have been lost all the same if the hatch covers had not been washed off. Neither am I able to conclude that there was any negligence in the management of the tug. She where she had a right to be; was moving at half speed; did all that she could to warn the steamers, and all that she could to mitigate the effect of the swell which the steamers raised. The case, therefore, presents the question whether, in the absence of any negligence on the part of the defendant or his agents, he is liable for the chalk lost in the manner described. If the relation of the defendant to this cargo was that of a common carrier, his liability cannot well be disputed; for he made an unqualified contract to safely transport and deliver the cargo in question. The non-performance by a common carrier of his contract can only be excused by showing that the loss arose from the act of God or of the public enemy. The swell that overwhelmed the defendant's scow was not the effect of storm or tempest; it was not an act of nature-it was the act of man; namely, of those who were navigating the steamers, and who by their method of navigation raised a swell at this point that it was not possible for the scow to
resist. Damage so caused seems to be strictly analogous to damage caused by collision resulting from faulty navigation. In the case of collision a vessel is by negligence driven against another vessel. Here, a vessel by fa.ulty navigation drives the water in an irresistible manner upon another vessel and so causes damage. If such a swell as struck this scow was a necessary incident of navigation in the East river, by such boats as the sound steamers, the case might be different; but upon the evidence before me-none of which, however, comes from the passing steamers-it must be found that the creating of the dangerous swell which caused this loss could have been avoided by reasonable care on the part of the steamers. The damage in question, therefore, was caused by the negligence of man, and not by the act of God. As no negligence on the part of the defendant or his agents has been shown, the damage in question might no doubt be held to have arisen from a peril of the seas, within the meaning of the ordinary exception of a bill of lading. But the defendant's contract contained no exception. It was au unqualified contract to transport and deliver; and, if it was made by the defendant in the capacity of a common carrier, his responsibility was that which the law, upon grounds of public policy, has attached to every common carrier, namely, that of an insurer against all loss or damage, unless caused by act of God or of'the public enemy. The decision of the case turns, therefore, as I view it, upon the question whether the defendant was transporting this chalk in the capacity of a common carrier. "To constitute one a common carrier, he must make that a regular and constant business; or, at all events, he must for the time hold himself ready to carry for all persons indefinitely who choose to employ him." Redfield on Carriers, 15. The case of Lyon v. Mills, 5 East, 428, is the strongest case that I have noticed in support of the plaintiff's contention; but in that case the point whether the o'efendant was a common carrier or Il.ot was not precisely decid( d. The point actually related to a notice limiting vefend-
'ant's liability; an.d it does not seem to have appeared in that case, as it does here, that it was no part' of the defendant's business to transport the goods of others. In that case, it was the opinion of Brett, J., that the defendant could not be held liable as a common carrier, and he says the defendant therein carried on business like any other owner of ships or vessels, which is by no means this case. In the present case the defendant did not hold himself out as ready to transport the goods of others. The proof is that he did no more than to use his scows in his own business, or to let them to others to be used in their business. Upon the facts of this case, I am, therefore, of the opinion that the defendant's occupation was not that of a common carrier, and that his relation to the chalk in question was simply that of bailee for hire. This being so, in the absence of negligence he is not liable for the loss in question, unless it be also held here, as was held in Nugent v. Smith, 8 Asp. M. L. C. 87, that every ship-owner who carries goods on board his ship for hire, is, in the absence of express stipulation to the contrary, by reason of his acceptance of the goods, liable as an insurer, except as against the act of God or the public enemy. The same position was taken by Brett, J., in the LiLler Alkali Works v. Johnson, 2 Asp. M. L. C. 337, but it does not seem to have been the opinion of the court in that case; and upon the appeal in Nugent v. Smith it was distinctly, and I think successfully, challenged by the chief justice. 8 Asp. M. L. C. 198. No American case that I know of has so 'extended the rule applicable to common carriers; and I think it will be found impossible to apply so rigorous a rule to the transportation business of this country. Upon these grounds I am opinion that the libel must be dismissed.
GRAY V.STEAM-TUG JESSIE RUSSELL.
THE STEAM-TuGS JESSIE RUSSELL and' :ATALANTA..
(District Court, E. D.Ne'llJ York. --,1881.,
Stopping by a tow is not necessarily equivalent to notice to an approachmg tow tQcome on.
2. SAME-NARROW HAWSER. It is not negligence in a tug having in tow, in a narrow channel, a
long, to use a length of hawser lighter with a bowsprit some 14 which brought such bowsprit within 40 feet of the stem of the tug.
Easy and cautious movements are the rule in the navigation of Newtown creek, and those who adop.t a method do so at their own risk.-[En.
W. W. Goodrich, for libellant. Ludlow cJ: Carter, for claimant of the Jessie Russell. Davies, Work, McNamee, and Hilton, for claimant of the Atalanta. BENEDICT, D. J. This action is brought to recover of the tugs Jessie Russell and Atalanta the damages oaused to the canalboat Herrick by a collision that occurred in Newtown creek on the thirteenth of February, 1879. At the time of the collision the canal-boat was being towed astern of the Russell down Newtown creek. The tug Atalanta was proceeding upthe creek, having the lighter Mickle in tow astern, when the canal-boat was just clearing the fourth bridge. She was struck by the lighter in tow of the Atalanta, and sustained the injuries complained of. I have little hesitation in concluding that this collision is to be attributed to fault on the part of the Russell, in that, knowing of the bend in the river below, she pushed on through the bridge instead of stopping. This she did in hope of reaching a bight in the river below the bridge, where the tows could pass in safety, and with the knowledge that if she failed to reach the bight in time escape from collision would depend upon the ability of the lighter in that time and dis. tance to keep herself out of the way. The prudent course, under the circumstances, was to wait above the bridge. The