·. ' . :.BLAlrDHFORD,;Circ'uit .Judge; Having; found substimtilllly' the' iog factS; distriot court held .that it ·was not, negligence to allow be.tween..deckheams of thevess'e1 to be uncovered by a deck, or US13 such beams for the stowage of loose planks for 'iI.; temporaryptitpose, otto leave the eolis of:theloose deals unsupported at thepll'ice where the libelant feU; tqat the dealsiwere not so placed as to justify the libelhe was proceeding upon a deck; and that the ant used the deals fora purpose for which' they' were n6t intended, without necessity,and with fair notice, from the manner in which they lay, thllit they were not· intended to be so USed. .In these Tiews I concur,' and it is not necessary' fdrther to. enlargE! upon them. The must be distnissed, with costS in both courts. .. ,
'II. FIVE MUD-Scows.
(OOtrfct Court, 8. V. New York. April 1, 1892.)
1. BALVAGE-l!lLEJnlNTS OIl-PBEiVEN'1'ION 0'1' DAMAGB TO PROPBRTY 0'1' O'1'ltBR8.
When a vei>i>el has gone adrift through is drift.tng towards other vessels, whioh' she is likely to injure'; the savlDg of her owners from liabUity to pay any suoh damage as was likely to arise, and: which the owners would be oaUed· on to pay, should be taken iJ;lto lloooount In determining the amount of a salvage award. ' . Seven hundred and fifty dollars salvage awarded a tug worth 115,000 for picking up five scows worth $30,000, which bad negligently got adrift in the Harlem river, aDd were liable, by collisions, to injure other propert1.
In Admiralty. Libel for salvage. Wilcox, AdamsJ' & Green, for libtlant. A. A. Wray, for claimant.
BROWN, District Judge. On May 26, 1891, five loaded mud-scows broke adrift from the bulk-head where they were moored, between 115th arid 116th streets, Harlem river, between 6 o'clocit and 7 P. M., and went drifting upwards with the alow current at the beginning of the flood-tide. .Some little time a:fterwards, estimated by two or three of the witnesses to be half an hour; a the Archlbald Watt, going up the river to lay up for the night, discovered the scows adrift between 117th and 118th streets, made fast to them, and towed them back to the bulk-head at 114th street, where they were tied up a little after 9 P. M. The scows were worth $6,000 each, in all 830,000; the Watt, $15,000. No special difficulty or danger attended the work, excepting that the channel of the river was very narrow; the scows were more or less kinked up, and very heavy; and the handling of them was attended with some danger to vessels going up and down the river in so narrow a channel. The small tug Curtis was going up the Harlem at the same time with the Watt; her pilot saw the scows adrift and made
for them; but as. the them first, the Curtis made no claim to assist. She was a much 6nuiliertug than the :Watt, and could not. I think. have b"ndled the five IlCOWS together. Had the scows not been picked up by ,the Watt,lthinktbere is no doubt that they would have come in collision with theUnjtedStates steamer Azalia. worth 890.000, which ran some 40 feet bey()nd the end of the long projecting wharf at the end of 119th ske.et. Further above, the scows would also have been likely either. to rllI1upon Negro rocks off 122d street, or upon the yachts above. It is not pr9bable,however, that from merely grounding without collision, the scows wow-dhave suffered any great damage. For the cla,imants 1t is said. upon ·t46 ,l;Luthority of The Baker, 25 Fed. Rep. 771, that the risk of ,on others is not fA> be taken as an element in fixing a salvage allowance. That is undoubtedly true, but it is not applicable here. The observations of the court in that case , had reference to the existing facts, namely, that the danger of communicating fire fA> other vessels from the fire on board the vessel saved, was a danger not arising through any f8(ult of the latter vessel. The owners of the saved vessel could not,therefore, have been called on to pay any such damage to others. In case, the presumption is to the contrary. It is impossible to suppose that five barges could break adrift from a bulk-head in the Harlem river in mild weather at the beginning of the was so weak as not to drift them above two blocks in nearly balf an hour, except under very insufficient and negligent mooring; 'andtliesco'wsand their owners would have been liable, therefore, for any damage inflicted on other persons through breaking adrift. .The rescue of the scows, therefore, saved the owners from any such damage as t1;le'y.might have been called upon to paYi and anything thus saved is as much a pecuniary benefit to the owners ofthe scows as the saving of any the scows themselves. It is not the loss to other persons that is considered, but the saving to the owners themselves. Although this saving is not a matter of precise calculation, yet as collision was a very certain danger. it is one of the elemepts which under suchcirC111mstanQes is proper, I think, to be taken into account... In view of aU the circumstances. I think that a salvage allowance at the rate of or $750 for the five scows, will be a reasonable award; oncrthirdof which should go to the officers and in proportion to their wages; and two--thirds to the tug. A decree may be entered accordingly. with costs.
'II. 'l'HE INIZIATIVA.
(D£Btrict Court, S. D. New York.
April 12, 1899.)
BmPPING-NEGLIGENCE-CAPSIZING OF LIGHTER-UNAUTHORIZED LOADING.
The crew of a partially loaded lill;hter received word from the ship whioh wu loading her that the work would not be continued at night, and accordingly they did not return after supper. In their absence the loading of the lighter wascompleted by the crew of the ship in the evening, and then she was left without watch, lD an expoRed situation, where she afterwards capsized, from some cause not explained. Beld. that the ship was liable. A lighterman taking from the consignee of cargo an order on the ship for 100 tons for transportation is not the consignee's agent. The ship acts at her owp. risk in loading the lighter in the absence of the lighter's crew, without their knowledge or authority. and the cargo so put aboard without authority is not in law received by the lighterman, nor is he accountable for it as a bailee to its owner. HeW, therefore, that in the above caSl:l he could not recover its value.
SAME-BAILMENTS-LIGHTERIIUN NOT AGBNT OF CONSIGNEE-DELIVBRY OF CARGOWHEN NOT L E G A L . · .
In Admiralty. Libel for negligently upsetting a lighter. H.'lJland & Zabriskie. for libelants. uno & Ruebsamen, for claimants. BROWN, District Judge. At about half past 5 o'clock in the morning of October 8, 1891, the libelants' lighter Overton, fully loaded with about 98 tons of sulphur, and made fast alongside the steamship Inizia. tiva at the Mediterranean pier, Brooklyn, broke her lines, capsized, and sank. The libel was filed to recover damages for the loss of boat and cargo, on the ground that they were upset by the negligence of the iziativa. The libelants were engaged in the lighterage business in the harbor of New York. The consignees of the sulphur gave them an order oh the steamship for 100 tons, the capacity of the lighter Overton, to be taken to Gowanus creek. The lighter arrived alongside the Iniziativa in the afternoon of October 7th, and up to a little before 6 P. M. had taken on board 35 tons; namely, 20 tons, which filled the hold, and 15 tons on deck. The loading was done by hoisting the sulphur out of the ship upon a platform erected upon her rail, where the sulphur was weighed by a weigher employed by the consignees, and after being weighed upon the platform, was shot down upon the lighter below. The bill of lading provided that the sulphur "was to be discharged into is to furnish as requested by ship, and delivlighters which ery to be taken day and night as ship delivers." One of the printed clauses of the bill of lading also provided that the consignee was bound to be"Ready to receive the goods from the Ship's side simultaneously with the ship being ready to unload. either on the wharf, or into lighters, provided with asufficient number of men to receive and stow the goods; and in default thereof the master was authorized to enter the goods at the customhouse, and