PENNS.YLVANIA

PENNSYLVAIUA.

B.

COl 'iJ. WASHBURN.

'11. WASHBURN

" ,

335

R. Co.

et al.

INCREASE OJ'

(Di.8trict

, I ,.

omJ.t. s.b.New Yor'k.':March

,

DUIA.GEg-INJURY TO VESSEL-DUTY TO PREVENT:

A canal boat sank at low water at defendants' wharf by their fault, and careened on her'sideli.t about 4: 45A. M. The tide began to riseabout6'.l. M., and before the cargo wall reD1Aved some por,tious of it were <1amaged. There had been men on the d.ock before the tide began toHse, but as they demanded double the ordinary stevedores' wages, their services were refused botll by tile master and the foreman of the,Ubela.nt. Held, that the well-settled rule of the obligation of tbe ship to use all reasonable dili,qence after an jnjury to prevent subsequent increase of damages, should have 'led the master tO'employ help at once, even at advanced wages; and tl1at the canal boat could not redOver for such pamage to the cargo as might have been saved by employing such

In Admiralty. On exceptions'to commissioner's report. Robi'l'tWYl" lJright, Biddle Ward and Mr·.Hough, for libelants. Horace G.' Wood, for respondents. BROWN, District Judge. Exceptions have been taken to the commiesioner!sreportAlpon the damage caused by the sinking ofthe libelant's barge, F. A. Murphy, at respondent's wharf tbrough the fault of the.latis:that at least a part of the loss is attrib· ter. The ground ;of utable to thenel5ligence of the libelant's men, in not removing the Cargo at once, beforeit was injured by the rise ofthe tide. , The canal boat sank at low water, and ca reened on her port side at about 4:45 A. M. The tide began to rise at about 6 A. M., It was half past 9 A. M:' before the removal of the cargo was begun in earnest. During this int.erval a considerable portion of the cargo, which consisted of barrels offiour, hay in bales. and feed in bags, which was all on deck, and which had shifted to port as the boat careened. was wet and damaged by the rising tide·. Up'on theconfiictingevidertce 1 am not satisfied that at low water when the boat careened, there was any such depth of water on the low6t rail as three or foUr feet. Besides the contrary testimony of the claimants, there are other undisputed circumstances as to the amount .of' the rise of the tide, the depth of the water, the slant of the boat, and the work of the men in the water, which indicate. thaHhe port rail was not at low water submerged to that amount. But wbether that depth of water was exaggerated, or, not, there can be no doubt that a considerable part of the cargo waS damaged through the rise of the tide five feet up to high water a little before 110'<;lock. Between 5 and 6 o'clock in the morning some haIfa dozen men were Oll the. dock willing to work, but demanding from 90 cents to $1 an hour wages, the regular wages of stevedores being only 40 cents an hour. The captain declined to employ them in removing the cargo,. because he considered the wages exorbitant; and, also because,as he says, he considered the men loungers and untrustworthy. At7 :45 in answer to a telegram, one of theforemenofthe libelant arrived, who set to work about eight maR to unload.the cargo.! .After working for about 10 minutes they demanded from 50 cents to 60 cents an hour, which the foremaIideclined

836

FEDERAL REPORTER,

vol. 50.

to pay, offering 36 cents to 40 cents; whereupon they all stopped work, except one man who continued with the master and mate of the canal boat and two others, until half past 9, when the libelant's barge Lamokin with 12 other meli arrived, who went immediately at work. These 17 were all that could work advantageously·. lam of the opinion that the demand of the men to be paid extra wages was not a sufficient reason for permitting the cargo to be damaged py t11e rising tille. The situation was one somewhat analogous to that of in the need . of immediate help to .extricate the cargo from tl}rel:\.tened danger.. For great additional damage would manifestly en· llt1eunless the cargo was 'speedily removed before'the rising tide should cover it. There was no question of the master's authority, nor of the ordinar)' wages of stevedores in such a case. I cannot conceive. that So man of reasonable,prudellce, looking after the interest of his own prop. erty, would hesitate a moment under such circumstances to employ any effective labor that was at hand, without regard to the rate of wages demanded, within· any such limits as the present case presents. It was therefore, the reasonable duty both of the captain of the callal boat, and of the foreman when me arrived on the scene, during th& fOUf or five hours that elapsed after the canal boat cQ.reened until the Lamokin ar· rived, to, t:emove, a11the cargo that was possible, and to accede to the price of wages demanded, if other timely help was not procurable. That the men should demand extra wages for such a service, I do not <'onsider any evidence against their character, or their efficiency; on the contrary, I think they had a right to expect some extra compensation in such an emergency. The obligation to use all reasonable diligence after an injury in cases of collision, or other maritime torts, to prevent subsequent in· crease of damages, is well settled in courts of admiralty; and the rule at law is similar. The Baltimore, 8 Wall. 377; Warren v. Stoddart, 105 U. S. 224,229; The Thomas P. Way, 28 Fed. Rep. 526; The City of Chester, 34 Fed. Rep. 429,4>30; Pettiev. Tow-Boat Co., 1 U. S. App. 57, 62, Fed. Rep. 464; TheHavilah, 1 U. S. App. 138,50 Fed. Rep. 331. It is impossible to determine precisely how much of the dry cargo wasdamaged that would have been saved by the employment of the men who were willing to work, As it was, 100 bales of hay and about 12" barrels of flotirwere removed dry. This was a little more than half of the£lour,and about two-fifths of the hay. The feed and grain were all damaged. The' unloading was completed at about 10 P. M. the sameevening. The loss on the damaged portion as found by the sioner was the sum of $1,687.38. Considering that the cargo could have heen much more quickly handled before it was wet, and that so considerable an amount was removed . dry with the few men employed before the tide rose, I am satisfied upon the had the men present and offering to work from the first been employed as they should have been, at least $400 of the damage would have been saved. So much, therefore, with interest, should be deducted from the commissioner's report, which is in other respects confirmed.

PATTEN fl. CILLEY.

837

PATTEN .,. CILLEY.

(No.1.)

AprU 22, 1892.'

Oourt of .Appeals, First Oircuit..

1.

WRIT OF ERROR-DISMISSAL-FINAl, JUDGMENT-REFUSAL TO REMAND.

The denial of a motion to remand a cause to the state court is not a :flnal jud.srment. or order, and the circuit court of appeals has no jurisdiction in error in such stage of the case.

lao

SAME-:-C9'!lTS.

On dIsmissal of a writ of error, defendant In error is entitled to judgment for the,fQsts II-rising- on the to dismiss. Bf'adBtreet 00. v. Higgi.ns, 5 Sup. Ol; 880, 114 U. S. 262, followed.

Error to the Circuit Court of the United States for the District ofNew On of William A. Patten, the will of one Matilda P. Jenness waS adn.litted to probate in solemn form by the probate court of Merrimackc?unty, N. H. Horatio G. Cilley, one of the heirs at law of the appeal to the.supreme pourt of the state; and he after:wardstirocured the removal of the causa to the circuit court of the United Statesobthe ground that he was a citizen of Iowa, while plaintiff, Patten, was a citizen of New Hampshire. Patten's motion to remand the cause tqihe' stateCQurt was refused; and he brings error. Writ dismissed.. For former report, see 46 Fed. Rep. 892. Harry Bingham, John M. Mitchell, and Frank S. Streeter, for plaintiff in error. " . ..., WiUia·rilL. Foster, Harvey D. Hadlock, and Daniel Barnard, for defendant error. Before PUTNAM, Circuit Judge, and NELSON and WEBB, District Judges.

in

WEBB, District Judge. We think that there has been no final decicourt,and that this court has no jurisdiction in error sion in iIi the stage of the case. Under the decision of the supreme court in Bradstreet Co. v. Higgins, 114 U. S. 262, 5 Sup. Ct. Rep. 880, the defendant in error is entitled to a judgment for the costs arising on the motion <to dismiss. It is accordingly ordered that the writ of error be with costs for the defendant incident to the motion to dismiss, including any costs incurred by him in printing the record, and that a mandate issue forthwith. v.50F.no.5-22