'warrante4 in ·llnding that the libelant has established by a preponderance of evidence that other eleva.tors having railroad con· nections could have unloaded the vessels sooner than the City elevator. All the witnesses agree that the situation was unprecedented. An' immense amount of grain had reached the harbor of Buffalo. Navigation was about to close. Every effort was being made to accommodate this extraordinary congestion. The elevators ha.ving railroad connections were being worked night and day. Everywhere there was a blockade of greater or smaller proportions. The energies of those engaged in the work of transferring these cargoes were taxed to the utmost, their time was occupied with the daily routine of this busy period. To hold men so situated responsible for the greatest care and diligence,to charge them with every item of information and knowledge which was only elicited by a protracted judicial investigation, would be to establish a new rule of law for the guidance of consignees. Indeed, after an examination, which was intended to be thorough, I have failed to find a single authority allowing damages in circumstances like those devel· oped in the case at bar. Vessel owners can stipulate for lay days, if they so desire, but if they prefer not to do 80 they must take the risk of delays occasioned by such phenomenal circumstances as these which occurred at Buffalo in November and December, 1891. It follows that the libelant is not entitled to damages, but is entitled to recover freight in each action and interest from December 9, 1891, besides costs.
THE SIRIUS. OLIVER ;. THE SIRIUS. (01roult Court of Appeals, Ninth Circuit. February 6, 1893.) No.71.
Recitals in.. Ii bottomry .bond of the amount of advances secured thereby are evidence' of'the true amount, but do not estop the obligor trom showing that the amoUnt was in fact less.
BAME-ADVANoms ON OBLIGlItBl's CREDIT.
A ship about to depart on a voyage to a foreIgn country was subject to liens for necessarles furnished by her agent, and tor a4vances made by others on his credit. The agent rendered to the owner's attorney in tact an account' which Included such· advances, and thereupon the attorney, without questioning them, gave a bottomry bond for an amount sufficient to cover the whole account. The bond was. expressed to cover certain specified contingent liabilities of the agent, and "moneys pald." Held, that it would be construed to include the agent's liability tor such advances. The bond should also be construed to cover commissions earned by the agent upon money collected by him, and credited In the account which was rendered to, the attorney in fact.
The obligee had a right to use money reoe1ved for freIght atter the date ot the bond In payment of wages and other expenses incident to the projected voyage, and to meet other debts contracted tor by him tor the .,enefit of the vesseL and not'secured by the bond.
.A. promise by an agent for It vessel. to her owners. that she should not be sent on a voyage unless her freight outward bound amounted to a certatn sum, Is revoked by a bottomry bond subsequently given by the owner's attorney in fact to secure advances by such agent, in which it recited that the ship Is bound on a certain voyagej and all responsibility for such voyage rests upon the owner of the ship, who cannot sustain a counterclaim to an action on the bond on the ground that the agreed amount of the freight was not secured.
admiralty case on appeal should not be remanded for a new trial becaUSe of the erroneous rejection of evidence, since the appeal Is itsel:t a new trial, and such evidence, if offered, would be received and considered by the appellat., court. The Portland and The State of California, 49 Fed. Rep. 172,1 C. U. A. 224,distinguished.
An appellate court should not receive as new evidence in an admiralty case a. deposition by a witness who testified in the trial below concerning the very matters referred to in the deposition, when no ground for introducing additional proof is shown.
, Appeal from the District Court of the United States for the North· ern District of California. In· Admiralty. Libel in rem upon a bottomry bond filed by FranciS B. Oliver against the British steamer Sirius; John Meek, claimant.· The district court entered a decree for libelant. The appeals. Affirmed. E. W.'McGraw, (Walter J. Bartnett, of counsel,) for appellant. Andros. &, Frank, for apVellee. Argued before GILBERT, Circuit Judge, and HANFORD and District Judges. HANFORD,District Judge. This is a suit in rem against the BritiSh steamer Sirius upon a bottomry bond given by the owner, through his attorney. in fact,' to the libelant, M security for advances made on account of the ship, and to indemnify him against liabilities which he had assumed by giving certain bonds to release the ship from custody under process in suits pending against her. ,The bond in suit was executed at San Francisco April 28, 1892. The reci'tals and conditions thereof are as follows:
"Whereas, the said steamship is now lying in the port of San Francisco, and bound on a voyage from said port of san Francisco to a port or ports on the west coast ot Central America, and back to the port of San Francisco, California; and whereas, said Francis B. Oliver has advanced to said steamer, for the purpose of furnishing her with necessary supplies, and discharging clalms against her,the S11m of si"tteen thousand eight hundred and tifty-seven 94-100 ($16,857.94) dollars; and whereas, said Francis B. Oliver has further become liable in the sum of two thousand ($2,000.00) dollars as a surety upon a bond given to the United States marshal for the release ot said steamer Sirius from the custody ,of said marshal under process issued out of the district court of the United States in and for the northern district of California, in the case ot La Compagnie du Boleo against the steamer Scandinavia; and whereas, the said John Meek has promised and agreed to secure the said Francis B. Oliver against any and all liability incurred by him by reason of said suretyship upon the bond aforesaid; and wheroos, the said steamship is now again in the.· custody ot the United States marshal, under process issued from
the said district court of the United states in and for thenorthel1ll" districtof"Call:tJbni:laiJln the ClUle ofthe,Al1edrolil' Islaml:Ml.plngandMilling Company', against .. the. steamer 'and ·. , whereas, the :said .owner is unable ,to obtain 'funds to pay the. saidJelB.llII., '!IDd. Is further. i\DUtbleto .furnishthenecessary bond to said United States marshal to relElMe said vessel from such custody,by reason of which said ,1'eeselIs unable'.to proceed upon her sald voyage; and whereas; the sa!dIFI.'IUlcl8 Bl, Oliverhsa, ,thJS day become liable. In the sum ot five thousand five hundrOO..I($5,500.00) dollars sa surety upon the bond required by law for the· release of said vessel trom the custody of said marshal; and whereas, the said owner has been unable to obtain said advances, and sald. release of said steamer troD;l the custody, of the marshal, from anyotb.8J1 person or persons on more advantageoustel'IllS, and has accepted the aametrom said Francis B. Oliver, and agreed, so,far as he lawfully can or, maY, that the said security, sbali have priority over all claims against the said steamship, whether by,bitnselt or by any other person. Now, In consideration of the said advances, and In consideration ot the liabllity Inourred by sa.W,. francis B. Oliver JlPon the bOllds for the .release of said steamer as saId owner hereby agrees to pay to saidIJ'rancis B. Oliver the sum of sixteen thousand eight hundred and fifty-seven 94-100 ($16,857.94) dollars within ten days after the arrival of saId steamer In the port of San Francisco, on the completion of her saId voyage, wIth maritime Interest at the rate cent. Per :annum from the date. of this bond,. and he further agrees to pay at said time such further sum Or S1lID.s as the said Francis B. Oliver may at said tIme havepald upon the said bondS to the United States marshal, .wIth like maritime Interest at the rate of eIght per cent per annum from· the' date of such payment; and upon like conSIderation, the said owner further hereby hypothecates the Whole of sald her tackle, apparel, and furniture, In bottomry, and agrees that the siUd steamship Is to be employed UJ)()l1 the said voyage to a port or ports on the west coast of Central ADlertca. and return. to the portot San Frapc1aoo. the said risk to commence from the date hereof, and to continue UJltll . Wn days after the completion of said voyage, and the safe arrival of said $teamer In the port of Should, the saId' cases of Cadros Island Mining and Milling Company against the said steamer Sirius, and ,La Compagnie du Bolao against the said steamer Scandinavia, not have been determined and settled within ten days after the arrival of said steamer in the port of Ban Franc1sco. from her said voyage, then this bondshail· nevertheless be due as to said sum ofslxteen thousand eight h1Jlldredand fifty-seven 94-100 ($16,857.94) dollars, and the said risk shall continue as to the sum of seven thousand five hundred ($7,500.00) dollars until the final determination, adjudicatIon, and settlement of the said cases agamst said steamer, or untIl said Meek shall substitute for said bottomry In such regard other security satisfactory to said Francis B. Ollver. ADdU Is further agreed that It the said cases be not finally adjudicated and settled as aforesaid at the time of the arrival ,of said steamship at the port ot San Francisco from her SaId voyage aforesaId, then the said steamship Is to be laid up and remaIn at some proper and COllvenient anchorage In the harbor of San untIl the ftnal discharge of her obligations under this contract. In consideration whereof, the casualities of the seas are to be on account of said Francis B. Oliver, and the said John Meek doth by these presents hypothecate and assign over to the said Francis B. Oliver the whole of said steamship; and it is hereby declared that the whole of said steamship Is thus assigned over for the security of the bottomry taken by said Francis. B. OlIver, and she shall be dellvered to no other use or purpose whatever untIl payment of this bond is first made, and the premium and interest that may become due thereon, and the said FrancIs B. Olive,r Is to be entitled, In case of loss, to the whole of the salvage of said vessel, which the sald obligors promise to pay to sald FrancIs B. Oliver: provided, however, that the said Francis B.OliveJ:·shall not be liable to oontribute to or make good any general or particular average, loss, or expenditure, or other charges of alike nature, which may happen to,orba sustained by, or lnourred in respect to, said steamship, or her cargo or freIght, upon said voyage, In, consequence of the perils of the seas or otherwise. Now, the condition of thJs 0bU-
.gation Is such that It the 10hn M-. bJs admln1strators or and do well and truly pay, or cause to be paid, to the 8a1d Francis B. his .admtnlstrators, or 88Slgns, the tuIl and just tlUm ot twenty1four thouSabtl three hundred and tlfty-seven 94-100 ($24.357.94) dollars, being the principal of this boOO; together with the premium and intereetthat shall become due thereon at the time of the sate arrival of said steamship at,her port.of destination in manner aforeea1d, and Bha1l further relieve . the Sliid Francis B. Oliver of all liability upon said bonds in the cases of the Cedros Island Mining and Milling Company against the steamsWp Sirius, and 'La Compagnie dUBoleo against the steamshIp Scandinavia, and in case of the 10BS of said steamsWpshall pay the whole of the salvage to the sald Francis B.Onver, tilen this obligation to be void; otherwise to remain in full force and virtue."
The owner of the Sirius, by his letter dated· at San Francisco September 26, 1891, constituted the firm. or mercantile house ot Oliter & Co., for the ship, with authority to collect her freight money and disburse her accounts. The record fails to. disclose whether the libelant was associated with others in business under said name, or whether he alone constituted the house of Oliver & Co.; but from the accounts introduced in evidence, and the transactions shown by the testimony, we must necessarily infer that all the which the bond was intended to secure were made by Oliver; & Co. pursuant to the agency created by the letter above referred to. The object of .this suit is to recover only the amount of $16,857.94:, with maritime interest at the stipulated rate, on account of advances; and no claim is now made on account of the libelant's contingent liability as a surety upon the bonds given to the United States marshal The owner appears as claimant, and defends on the ground that the amount sued for is greater than the amount actually due for advances made prior to the date of the bond, after deducting proper credits; and on the further ground that the amount due on the bond should be reduced by allowance of a counterclaim for damages which he makes against the libelant, based upon alleged losses sustained by reason of the libelant's disobedience of instructions given to him as agent and manager of the ship, and wrongful mismanagement on his part, in sending her on a profitless from San Francisco to Central America. The amended answer admits the execution and validity of the bond, and that the libelant is entitled to a decree, but puts in issue certain items charged against the ship in the account of Oliver & Co. as her agents, and raises other issues, as to her credits alleged to ha.ve been improperly omitted from said account, and as to said counterclaim. The district court rendered a decree for the full a.mount sued for, and the claimant has brought the case to this court by an appeal. , Mter reading the record, we find it unnecessary to consider many of the intricate legal propositions discussed upon the argument of the case, for the reason that, when the undisputed facts are given due consideration, the case may be resolved into one of simplicity, and we rest our decision upon elementary and familiar rules. We hold, in opposition to the contention of libelant's counsel, that the claimant is not estopped by recitals of the bond from questioning the amount due for advances. We regard the recitals as evidence of the true amount, and as an admission on the part of the
clo,im.alttt:oontrary ·fu the avermentB of 'his a:nswer, asa redelpt J>Y..'!J;\inl w6U1d,be "U':lf',9'f ,no binding '\fritten declaration made voluntarily and ·dtlliberately. J' ,Th¥J.suit is brought by the person named in the bond as the obligee thereof, in a forum wbloh .proceedS according to the principles. ofeqmty. Now, if in tact the amount exceeded the amount' of the itldebtedness for, which the bond was given, and was underliltoo4. by the parties at the time to be a mere penalty, certainly a court of conscience would not, in a suit between the original parties; refuse, to receive the light shed by the real facts of the transaction, or decree contrary to truth and the justice of' the case. Therefore, in . affirming the decree of the district· court, we are not willing to say that the libelant should recover $16,857.94 and interest because it is so nominated in the bond. We find, however, that the balance to his credit, upon a fair account of his· transactions, as agent of the tlhip, previous to date of the bond, is equal to that sum, and that the bond was intended to secure payment of that balance. For the purpose of restating the account, we adopt as a basis the statement designated as "Exhibit 3," dated April 19, 1892, showing a total on the debit side of $18,046.12, credits to the amount of $1,563.18, and a balance of $16,482;94. This statement was introduced as evidence upon the part of the claimant, and his proctor, upon the argument before this court, while not admitting tha.t it was agreed. to as an account stated, insisted that it was in contemplation of the parties at the time the bond was executed,' and waS the basis for the sum of $16,857.94, recited in the bond as the amount of the libelant's advances, and by the testimony' of the libelant this is prov.en. So there can be no unfairness to either side in taking this statement, and making such corrections as the evidence justifies. We will now consider in detail' the several' disputed items in said statement. We reduce the first item for balance, as per accounl rendered January 19, 1891, from $3,765.71 to $3,724.24, which is by the amended answer stated to be correct, the difference being $41.47. We disallow items of $46 paid on draft of D. Payne, paid on March 10, 1892, and $5 for certified copy of power of attorney, paid April 15, and .deduct $10 from item of $28 charged under date of,. March 31, 1892, which! are admitted errors. Disallow item of $25 advanced to Olson 'March 22, 1892, on the ground that by a preponderance of the evidence it .appears that said advance was paid by Alfred Meek, and that the same has not been repaid to him by the libelant. An item of $421.86, premium for insurance on the vessel for the benefit of her owner, has not been fully paid in money. Part of said l!Jllount is a mere liability incurred by the libelant; his personal notes, bearing interest, having been accepted by the insurance agents in lieu of cash. An item of $94.87 due the Tubbs Cordage Company for stores, and $3,081.82 due to the Fulton Iron Works for repairs, are also objected to on the ground that the libelant has not paid the same. .The evidence in regard to these several items shows that the libelant obtained said stores, and caused the repairs to be made, upon his personal credit, but up to the time of
the trial in the'court he had not paid the bills therefor. In behalf of the claimant it is asserted that the vessel is subject W maritime liens for said stores and repairs, and the injustice of a double liability for 'the same indebtedness is urged as one of the reasons for the objections to said items. It is also insisted that the terms of the bond preclude a recovery of said amounts in this suit, for the reason that, in plain language, it expresses the two objects for which it was given as being-First, security for money paid; second; indemnity against specified liabilities; and therefore it m.ust be construed so as to limit the right of the obligee to lllaim under it only the amount due for actual cash payments made ;f)rior to its date, and indemnity against his contingent liabilities upon the two bonds given to the marshal. Thus, while refusing to be bound himself by the letter of the bond, as to the amount of his liability under it, he invokes an extremely rigorous rule of interpretation to be applied to the same contract with respect to other provisions, to the prejudice of the obligee. It is the duty of the court, however, to be fair, and to give effect to the contract according to the manifest intent of all its provisions. While no claim of rights under it antagonistic to its express declaratiOOlS can be upheld, still, to measure accurately the breadth and extent of the rights of the parties, it is necessary to take into account the circum.stances existing, and which were operating upon their minds, at the time of the execution of the contrlWt. At that time this foreign vessel was about to depart on a voyage to a foreign country. Necessaries had been procured by the libelant, and furnished to her, for which she wall in debt, and without available means to free herself from liens which he was in a position to claim. The verv items which we are now considering, were included in his lWcount. and were shown in the statement then before the owner's attorney in fact; and, without raising a question as W these items, the bond was written for an amount sufficient to cover them., as well as other items of indebtedness of the owner which the libelant had not paid, but had assumed, in order to prevent the detention of the vessel by attachments against her. After this bond had been given, the vessel was suffered to make her voyage without any new proceedings being commenced against her. In the light of these admitted facts, we think that it appears very clearly that these several items for insurance premiums, sWres, and repairs were regarded as part of the advances made by the libelant as per the recital in the bond, and that the bond was intended to secure the whole of the libelant's account, including these identical charges. We deny that the claimant can rightfully withhold the money due to the libelant upon this bond, or stay the enforcement of the decree herein, until the libelant shall have paid his creditors. We regard the fact that they have so far relied upon his responsibility, and refrained from asserting any claim against the ship, as sufficient assurance that after paying him no ll'tecond payment will ever be exacted. Nevertheless, for the satistaction. of all parties interested in the vessel, this court will, in its mandate to be !!lent down, direct the district court to enter an order v.54F.no.1-13
reQu..4'1ng" tAelibelant, to 1l1e. showing the. ;payment by him of "I, t til,e time, .of ,recei'vUl, ",gany money that may be collected court under tl1$ decree. , by '," :OC'he" neXt 'objection is to tteJ:ng amounting,1n the aggregate to the and crew .of port wages for time dw;ing the ship was undergoing which, amount the claiImplt insists was an unreasonably which the his' agent, .ahould h,ave prevented; and in this connectio:Q.;hecoIllplains (jf, error committed py district court in excluding evidenCe relating to said items of expenSe, and on this ground he, asks to have the ca&e remanded for a new trial in the district cot:U't. We consider that the several rulings of the districtcourtaUliltaining objectiol1$ to queations to witnesses called by t4e cililjma.nt, to elicit testimony concerning the C()nduct of the libelant, as agent for the ship, in retaining the officers and crew under pay while the ship was lajd up for repairs, were erroneoU;S. , But the cWmant aecured a new trial by his appeal to thW court. Here the rejected evidence would have been re<;:eived and considered, if. it had been offered; 'but we are unable to perceive any good reason. for remanding the case to the district court to be again tried, with the right of. a second appeal and a fourth trial in this court, with additional expenses, which may exceed the' amount of any just reduction of the account. In this respect ,this case from the cases of the barkentine Portland and the ,steamship state of California, (49 Fed. Rep. 172, 1 C. C. A. 224,) which were by this court remanded for the purpose of ascertaining the, damages to each vessel caused by a collision. In those cases the amounts in cOntroversy were sufficient to justify the expense, and by the decisions of the lower courts the cases had proceeded to :final judgments without affording an opportunity for offering any 'Proof as to the damages sustained by the Portland. They were the first admiralty cases decided by this court, and in the opinion delivered by Judge Deady it was distinctly announced that in an admiralty cause, upon an appeal, the parties are entitled to a trial de novo in this court. That decJaration may be inconsistent with the decree awarding new tri31, but some allowance must be ma-de for featurea of the cases, and the circumstances which environed the p3l'ties and the court at that time. Whether the order made for a new trial was. right or not, it should not be regarded as a precedent, for future cases, not affected by similar circumstances. The evidence in this case, as it has been submitted in this court, sIiows that the sums charged in the account as port wages were in fact paid, that said payments were necessary to clear the ship of and does not show misconduct or breach of duty on of the libelant in causing sajd expenses. The item of ·$77.45 charged for commissions is objected to on the ground that it cannot be regarded as a sum advanced, and it is said that in this suit money earned cannot be recovered, because the bond was not given for such in,dElbtedness. But this charge is for upon money collected by the libelant as agent for the ship, a.n.d, in this account. 4. commision merchant. has a
right to deduct from funds oontinglnto his bands eo:nunissions earned fiy 'transadtingthebusiness prOducing such receipts. There being no objection to the item on other grounds, and the money received for freight being credited in full, we allow this item to remain in the account. The other item of $212.50, for commissions on money not credited in this statement, will be striken out. We deduct $7.66 from the item of $147.66 charged for interest, to correspond approxiniately with the account as now reduced, making the total reductioll8 amount to $347.63. The account, as now restated, shows the following totals and balance: '
Debit $17,698 49 Credit ·······················.·..····.························ 1,563 18 Balance due libelant $16.135 31
The ,evidence shows that at the time of executing the bond the parties understood that the libelant was responsible for other supplies furnished to the ship, for which bills had not been rendered, and, in fixing the amount of the bond, allowance was. made therefor. The bills so contracted, and not included in Exhibit 3, together with the libelant's msbursements for expenses of the voyage referred to in the bond, and his lawfUl commissions, without including the disputed chllrges for insiirance premiums, or interest, or the items admitted to be erroneous, amount to a sum at least equal to the $8,298.86, and other freight bills collected by the libelant subsequent to the date of the bond, .plus the excess of the amount sued for over the balance to the libelant's credit per Exhibit 3 as corrected. Further reference to the disputed items in the account charged subsequent to the date of Exhibit 3 is therefore unnecessary. The right of the libelant to use the money received for freight subsequent to the date of the bond in payment of wages and other expenses of the vessel incident to said voyage, and to meet other debts contracted by him for the benefit of the vessel, and not Be' cured by the bond, instead of applying the same as a credit, is beyond question; and in exercising it, in this instance, he acted with fairness. If he had not taken care of said bills, and disbursed the ship, she woUld certainly be in no better situation; and she might be at this time in custody, to answer the demands of many creditors, for her owner appears to lack either ability or a disposition to provide her with necessary funds. The counterclaim is founded upon the following facts: In the month of February, 1892, the owner, by telegraph, instructed Oliver & Co. not to dispatch the, Sirius on another voyage to Central America unless they would gullI'anty freight for the round trip to amount to at least £2,500. To this a reply was sent from the office of Oliver & Co. to the effect that, unless £2,000 could be secured for freight outward from San Francisco, the vessel would not be sent; and to this the owner answered, "Accept terms proposed." At the time of this correspondence the vessel was at sea. She subsequently came into San Francisco in a disabled condition, necessitating not only delay, but expenses for repairs, which the libelant proTided for. She was also taken into custody by the marshal to an·
swer against her recited in the bond; and an attachment sui4a.gainst her owner for a debt due to Bell Bros. & Thompson, of England, was threatened. This debt was paid in part, and the bala:Qce of it assumed and secured by the libelant, and carried into the above account, for which the bond was given. After this had, been' done, in April, 1892, the vessel was dispatched on a voyage, to Central America, but only secured freight outward from San Francisco to the amount of $8,298.86; and the difference between this amount and £2,000 is what the claimant demands by way of recoupment. As we view this matter, it is of no consequence whether the libelant was or was not cognizant of the telegram sent from his office saying that the vessel would not be dispatched unless freight outward from San Francisco amounted to £2,000. That telegram was not a guaranty that freight to any amount would be seCured. It can only be, regarded as a promise on the part of the agents for the vessel that they would not, on their own responsibility send, the on ailother voyage without securing the amount speQlfi:ed. Notwithstanding said promise, with the owner's consent the vessel could be serit anywhere, Whether she earned freight or not; atld, when all the facts as to the events intervening between the dates of said telegrams andtb,evoyage are considered, it appeats plain to us that tge voya,ge ""as undertaken with the knowlconsent of the owner, and he must be considered as assumed the risk of failure, to make it, profitable. That voyage is the one expressly referred to in the bottomry bond now in suit. The Mnd it..selfis therefore an express agreement that the voyage should he made, .an<;l' it necessarily places all the I'eSp'Qnsibility for it upon the owner .and fully answers and contradicts the pretense that the libelant wrongfully employed the fot- his own purposes, to the injury of the owner. llaying fully' considered everything. material appearing in the evidence, andargurilents, we conclude that the decree of district court must. be a:ffirmed, with costs, and it is so ordered;a:Qd it is further ordered that the cause be remanded to the <ustrlct court for the northern district of California for further proceedings iIi accordance with this opinion. A deposition of the libelant taken subsequent to the appeal to this court, was offered, in evidence upon this hearing as new evidence; but we have 'given it no consideration and we now order that it be for the reason that the same witness testified upon the trial in the district court concerning the very matters refeITed to in said deposition, .and no grounds are shown for introducing additional proof at this time. We hold that new evidence, it material and competent., may be introduced upon the trial of an admiralty case in this cQurt., if, for any cause other than a fault of the party offering the same, such evidence cannot be introduced upon the original trial. But, without a showing of a sufficient rea.son for doing so, this cQurt Will not admit new evidence.
THE AKABA. THE OITY OF BIRMINGHAM. WOOD v. BURG et al. BOSTON TOWBOAT CO. v. WOOD. (Cireu1t Court of Appeals, Fourth C1rcu1t. February 7, 1893.) No. 36.
A towboat with a disabled steamship worth $130,000 in tow, under & contract of towage from Turk's island to New York, which provided that there should be no claim for assistance, salvage, or other services, broke a propeller blade, parted her hawser, and abandoned tl;le tow of!' the Hatteras Shoals in a hurricane. The .vessel so abandoned was with much difficulty and danger taken in tow by a passing freight and passenger steamship worth $350,000, plying on a regular schedule between New York and Savannah, and taken into Hampton Roads, the hawsers being twice parted on the way, and the tOWing vessel's bits being torn out. The rescuing vessel lost her regular return trip, and her cargo of vegetables and fruit perished from the delay. Held, that an award of $30,000 salvage was not so excessive as to be disturbed on appeal. BAME-CONTRACT-ABANDONMENT OF Tow. After the abandonment two other towboats, dispatched by the towing company, met the rescuing steamship with the disabled vessel in tow, and, although their services were refused, passed a hawser to the disabled steamship, and joined in the towage, until near Cape. Henry, when they cast of!'. Held. that the towing company could not recover on the contract, nor tor salva/:e.
'.rhe fact that, for a portion of the voyage, the rescuing steamship towed with the steel hawser, of the towboat, which, after parting at the time of abandonment, had been hauled aboard the disabled boat, gave the towing company no right to salvage.
Appeals from the District Court of the United States for the Eastern District of Virginia. In Admfralty. Libels against the steamship Akaba, (James Marke Wood, owner and claimant,) brought, respectively, by Charles S. Burg, master of the steamship City of Birmingham, for salvage, and by the Boston Towboat Company, for salvage and breach of contract. In the district court a decree was entered allowing $30,000 for the services of the City "Of Birmingham, and disallowing entirely the claims of the Boston Towboat Company. , The claimant of the Akaba and the Boston Towboat Company separately appeal. Modified and affirmed. Statement by SIMONTON, District Judge:
The British steamship Akaba was in the month of February, 1892, at Turk's \sland. She had then her shatt broken and her machinery disabled. HeI agents entered into a contract with the Boston Towboat Company to tow her trom Turk's island to New York, and to this end the towboat company sent the tug Saturn, one of their tugs, to Turk's island. These were the terms of the contract: It the Akaba was successfully towed to New York, and on this condition only, the towboat company would be paid $6,000. No claim could be made by the Saturn or her owners for assistance, salvage, or other services rendered on the trip from Turk's island to New York. The Akaba must be ready to be towed within 24 hours after the arrival of the Saturn at Turk's island; if not, the Saturn was to be allowed demurrage at the rate of $250 per day for every day's delay after the expiration of that interval. The Akaba., although disabled, IIlilst be in condition to be towed. The saturn reached