et al. v.
THE RAPID TRANSIT.
,(DlnrLct (Jourt, D. Washington, N. D. October 3,1892.)
II. BuIP1'ING-D.lMAGE TO, FREIGHIl'--.FIRB. ,A ,team(lrwith a oargo, chiefly of lime, took fire, and was scuttled by the city
that nC/ of ,a vessel be liablefC/r any loss happeniqg to the cargo by :dre unless caused by his deSIgn or neglEl(lt, the purchaser has a complete ,defellll6 against an action l.n rem against the vessel. '
A.wJ:iuGE-CARGO! ,1'N'JURED IN SI1PPRESSI1¢G FIRB.
cargo, whereby the lime was destroyed.
that being the only method of
Held; that under Rev. St.§4282,
a total loss of, the ves-
, :t'/le,oWt\!lJ;' ?foargo whioh is damaged by water in, suppressing fire is (lntitled to oompensatidbin general average. The Roanoke, 46 Fed. Rep. 297, followed., a part Of 'lmowner'sInterest in a ship, and incases of general of inllurauOe by him Should not be th,e value ofwhatW'as'sllved, for the pur'posEl of increasing the fund to be distributed. Th6 Q1t11 Pf.. I:mw:tQh, 6 Sup. ct.ll.ep;.1150" 118. U. S.468; The' Bcotla.nd, 6 sup.;:Ct:Rep. 1174, ItS,'(J. $. 507; and The Great Western, 6 Sup. Ct. Rep. 1172, 118 U. S. 520,followed;' ,'U " .... . . . , ...,
5. ADMlwhf-CdSTS. '. . . ,. , A rem, suing on, theoontract of affreightment to recover damages for lOBS of, cargo, to of h,is pleadings, ,IlD,d iucrelj,sed' tae expellse' of ,the case by lUtrooucmgrmmatenal eVldence. He was allowed, . elVer, ,rep.o.vel' in goeD,eraJ.' a,.v.erl!'ge, but bad not attem p ted an. adjUstment, on that basis the SUIt. ,aeld; that he was not e'ltitledto full costs.
Libel in rem by Deming, Burntrager, and others Rapiq'rransit, Elmer E. Caine, claimant. for general 3,Yerage. ,,., " . '. . Applcg(lte &: Tiaow, for John H. for claimallt. · In
Judge, On the 14th day of August, 1891, the steamer Rapid Transit,. i\Yith a cargo consisting principally of lime on board, by fire in the harbor of Seattle, and was, by the fire depl:I.rtment of the city", beached and scuttled for the purpose of extinguiElhing the flames. The sinking of the steamer caused a total destruction .of the lime, butthat was the only method by which a total loss of the vessel, as well a!jthecargo, could have been prevented; and it was effective. The libelants owned the lime which was destroyed, and this suit was instituted by them to recover the full value thereof upon their contracts of affreightment. Section 4282, Rev. St. U. S., provides that-
THE RAPID TRANSn::.
"No owner of any vessel shall be Ijable to answer for or make good to any person any loss or damage which Illay happen to any merchandise whatever, which shall be sbipped, taken in, or put on board any sucb vessel, by reason or by means of any fire happening to or on board the vessel, unless such fire is caused by design or neglect of such owner." The claimant purchased the vessel after the fire, and he claims the protection of this statute on the ground that if the former owners are, by its terms, shielded from liability upon their contracts, the vessel ill also entitled to immunity from proceedings in rem. I find that there is in the proofs absolutely nothing to support an accusation against the owners of any intentional act or negligence which could have been the cause of the fire and consequent injury to the vessel and her cargo; therefore the statute affords a complete defense as agl!inst the claim originally put forth by the libelants. The libelants, however, after a total failure to sustain their original claims for the full value of the lime because of the breach of the contracts of affreightment, have taken a departure, and now assert that they are entitle,} to recover a portion of their losses upon a basis of general average. All the facts essential to a recovery in general average, additionalto the allegations contained in the libels, are set forth in the answer. The objection, therefore, that the allegations of the libelants are insufficient to make a case of general average is technical, rather than substantial. I hold that, although there has been a radical departure, the case as now developed is one in which the court may lawfully apportion the losses sustained among the It is expedient for all the parties to have their differences growing out of the transaction in the pleadings, and which are cognizable in a court of admiralty, fully determined in the present suit, rather than bear the additional expen:;;e and suffer the delay incidental to commencing anew; and it is competent for the court to decree "upon the whole matter before it, taking care to prevent surprise, by not allowing either party to offer proCif touchby him." Dupont de Neing any substantive fact not alleged or mours v. Vance, 19 How. 173. There is a conflict of authority upon the question as to the right of an owner of merchandise whiqh hasbeeIl, while being carried as freight upon a vessel, destroyed or damaged by water in consequence of a fire happening on board the vessel, to partial compensation in general average. The arguments for and against the validity of such a claim are very concisely and clearly stated, and the authorities are collated in the learned opinion of Judge JENKINS in the case of The Roanoke, 46 Fed. I Rep. 297. Rather than indulge in further discussion of the will rest my decision upon the authority of that case, and the decisions which it follows. From the evidence I find that the value of the steamer immediately before the fire was $10,000, and the values of different portions of her cargo were as follows: Lime, $1,825; oats, $205; hose, $380; total value of vessel and cargo, $12,410. I also find from the evidence that the value of the steamer in her condition and situation, immediately v.52F.no.3-21
waa 32,000. In addition to this making the' ofprop,erty 'there thlil9wIiers of the stell.tner by damages to the steamer $8,000; pending $218.50. 'libela,hts Deming &)3urntrllger lost 700barrels of lime, worth $700; the Tacoma TddifigCompany, 1,OOOharrels.;'worth $1,000; gndthe libelant A. L. Aikeil,125 barrels, amountoflosse8, $10,043.50. On this adjustnieBi wiII ,ne: decreed. ' 'the ab1'l'>unt receivedbythe owners of the Thelibelliritij claim steamer u'pon"pollcies 'of be added tO,the value of what was for' the, purpose :of 'increasing the fund to be distributed., 'Bufthiscannot be allowed., The supreme court of the United lilis,: after full oonsideration and due deliberation, in a series of decisionsQ.efinitely held that insurance is not a part of an owner's interest"ih';a,iship. '!'h.t; City of Norwich, 118U.'S.468,6 Sup. Ct. Rep. 'U50j :'rheScotl/tnd; U8'U. 8.507, 6 Rep. 1174; The GreatrWeaiern, 118 U.S. 520, 6 Sup. Ct. Rep. 1172. Although four of the'jtidges Who in the disposition of these cases, in carefnlly'prellared and wel1-reasoned opinions, dissented, the decisions are'deolaratiohs of the law by the highest court of this country, and the qu'estlon,is nOl,tsettled·. Butler v. Steam8hip Co·· 130 U. S. 558, 9 Sup. Ct',Rep:6J9; .. Itwotild, be unbeCOming for this court to hear from counselarguni'entsquestiotiing .the justice of the law as it has been so declared. : I therefore qeiilined to hear arguments upon this point, for the reason ,that these decisions oannot be, by this court, overruled or .. . disregarded.' ' . ' . the .libelants to sustain the allegations made mtbe.lr pleadIngs, and the fact that the expenses of the case have been greatly 'increased by the introduotion on theitpart of evidence which iswhdlly'imma,teria1; and the further factthat no attempt was made to obtain an'lI:dj'llstt1lent in: general average before commencing the suit, it is my opinion that it would be uOfair to award them full costs. The decree will .require each party to pay all fe.es and expenses of his own witnesses.·· proctorfEle'will be taxed, ,and the libelants will pay one third and the claimailt'two thirdsofa11 the other fees and oosts.
THE MINNIE C. TAYLOtt.
at.v. THE MINNIE C. TAYLOR. at. v. THE F. H. WISE.
COURSES-WHEN DUTY TO ABAN'
l.lJilI,trWt Court, S. D. New York.
COLLTST,oN-SA.ILD1G VESSEL AND DON RIGHT OF WAY.
Thet-ug Wise, with two barges, one behind the other, in tow on a hawser, was proceeding a channel in Vineyard sound by night, bound east. Some 200 to 600 feet off on her starboard hand, sailing free, !lnd drawing ahead of the ,tow, was a sailing vessel. The schooner Minnie C. Taylor, bound west, was beating across the channel, and was on the starboard bow of the Wise. It was the statutory duty, of the Taylor, in that situation, to keep her course, and of the sailing vessel and thetuA' te'avoid her. The sailing ves$1ll went across the bows of the Taylor, which always held her course, until she struck the bawser between the tug and the forward barge, and was then run into and cut down by that boat, The court found that the int.ention of the sailing ves,sel to cross the bows of the Taylor became evident to the latter when she was 800 feet from the line of the tug and tow, and bad ample room to tack. Efeld,that in such situation, with the sailing vessel crossing her bOWS, and the tow almost directly ahead, and ample t.ime for hersel! to have gone a1;lout, it was the duty of the Taylor, though she h'ad the right of way, to have tacked, and that the pilot of the Wise was justified in thinking that the Taylor Would do so; ,but that, when the actual course and intention of the Taylor not to tack became evident, the tug should have slackened her hawser, as she h$d abundant opportunity to do, and permitted the Taylor to cross it. Held, therefore, that both vessels were in fault, and the damages should be divided. After the collision the tug towed the schooner into' port. Held, that the tug, being partly in fault for thecol1ision, could not maintain an action for salvage.
2, SALVAGE-AID RENDERED VESSEL IN COLLISION BY,COLLWING VESSEL.
In Admiralty. Libel for salvage. Cross libel for damage by collision. Benedict & Benedict, for the Minnie C. Taylor. Carpenter & Mosher. for the F. H. Wise. BROWN, District Judge. The above actions grew out of a collision which took place at about 2 A. M. of. May 8, 1892, in Vineyard sound, between barge No. 55, iIi tow of the steam tug F. H. Wise, and the schooner Minnie C. Taylor, by which the schooner was seriously dam. aged. After the collision the schooner was towed by the tug into Vine. yard haven. The owners 'of, tbetug, claiming that the collision was caused solely by the fault of thE! 8chooner,filed the libel first above named for salvage compensation for their aid to the schooner after col. lision. The cross libel was 'filed to recover damages to the schooner, on the contention that the collision was caused solely by the fault of the tug. If :the latter contention is correct, the libel for salvage cannot be sustained. The place of collision WR!! in the channel way between Squash meadow and Hedge fence, apassllg:dess than three fourths of a mile in width, as bounded by the range of the red light from Nobska point on the