NEW YORK DYEWOOD EXTRACT & CHEMICAL CO.
tion, or if such statute had any application to the. case at all. But my opinion is that it is neither; that it is not in conflict with the treaty; and that it haS :no application to a case of this character. The· desire of this court to afford to seamen every iiglit and protection authorized by the law, and the sympath.y I have with that class of people to which libelant belongs, strengthened by the able and impressive argument of his counsel, induced me to take for examination and careful consideration the matter and arguments submitted before a decision by the court denying the jurisdiction prayed for; but such consideration has only served to confirm the correctness of the decision of this court in the case of The Burchard, 42 Fed. Rep. 608, where it was held that the court had no jurisdiction in a case very similar to this one. In addition to that case, I cite, as sustaining the decision in this, The Salomoni, 29 Fed. Rep. 534; The Marie, 49 Fed. Rep. 286; The Elwine Kreplin, 9 Blatchf. 438; In re Ross, 140 U. S. 453, 11 Sup. Ct. Rep. 897. I am therefore constrained to sustain the exceptions to the libel,and to order that the libel be dismissed.
O'ROURKE v. NEW YORK DYEiVOOD EXTRACT & CHEDlICAL CO.' (District Court, S. D. ;.;rew York. }Iarch 31, 1891.)
SHIPPING-VESSELS AT iVUAIWES-C'OKCEALED SEWEll-NECESSITY FOIt NOTICE.
A boat which, in the ordinary eourse of busiupss, moored at high water, in the usual way, at respondent's bulkhead, where the master had never before been, and which· at low water was sunk by a dischargp from a sewer, concealed at high water, and of which her master was not notified, was helrl entitled to recover her damages by reason of the failure of respondent to giye notice of tlle concealeu danger.
In Admiralty. Libel by Patrick O'Rourke against the New York Dyewood Extract & Chemical Company for damage to a canal boat sunk by discharge from a sewer while lying at respondent's bulkhead. Decree for libelant. Stewart & Macklin, for libelant. Charles ·H. Russell, for respondent. BROWN, District Judge. The evidence leaves no doubt, I think, that the discharge of water from the sewer pipe between high and low water mark along the respondent's bulkhead at Greenpoint, although somewhat guarded by spiles running across its mouth, was sufficient to flood any loaded canal boat that moored close alongside of it unawares. The captain of the Cayuga had never been there before; he arrived at high water, when the sewer was covered, and was not visible. He reported his arrival with coal at the respondent's office a few rods distant, and received no notice of the need of breasting off from the concealed sewer. While waiting for the arrival of bills of lading and the necessary preparations for a discharge, the captain, having moored his boat in
'Reported by E. G. Benedict, Esq., of the New York bar.
vol.. . p5 r
to sleep)n.. tlle.l\lqbin, a:n,d, . . : , '. ',' ti'l, :' ,claimed; thatthe boat lay from tlle,bulkhead,apddfd in the sewer; that Iilhecame alongside loaded;lll an ufi&eaworthy nwnner, and that she must havEl, sunk from her :owu lealrY condition, or the very .,vnequal. loading by the, stern,. after the. previous: removal coal atUunter'spoint; . au thisbranc)l of about,33 tons the, case I am ,disP9sed to accept i;h,e captain's testimony, as tlle more .. credible and probable. respondent must, therefore, be held to answer for' the damage. The canal. brat went to. the wharf in the usual course of busine.ss to deliver coal"bi pursuance of the arrangements for its delivei'y there' made. between. the respondent ,and, the shippers. The libelant's ..captain, on. coming there for the first time, was entitled to notice of the concealed danger either specifically, or by some. general notice to the publie" giving. reasonable caution against the concealed danger. Heissenbuttel v. Mayor, 30 Fed. Rep. 45G; Smith v. Havemeyer, Sfi Fed. Rep. 927, affirming 32 Fed. Rep. 844. There was no negligence on his part in mooring at the bulkhead in the usual way or in going to his cabin; and he had no knowledge of the sinkingcondition of his boat until too late to prevent it. Decree for the libelant, with an order of reference to compute the damages.
BlUTISH & FOREIGN MARINE INS. CO. v. SOUTHlmN PAC. CO.' (District Court, S. D. New York. March 31, 1893.)
CAURIERs-FRETGHT-PRO RATA-DAMAGED GOODS-:GOODS DESTltOYED.
'Vhile a quantity of cotton was in course of trUJlsportation from southern ports to Liverpool, by various connecting carriers, lmt unde!" through hills of lading, certain bales were destroyed and others damaged by a fire on the pier of the respondent,-one of. the cari'iers, 'l'he damaged bales were sold, with the knowledge of the insurer, to whom the owner had abandoned, and the procetds were turned over to such insurer; respondent r(-taining its pro rata freight on all the cotton destroyed and damaged. Suit was brought by the insurer to compel payment over of such money retained, on the ground that no freight was earned b'ecause the cotton wal! never delivered at the stipulated place of delivery., Held, that the insurer,by standing iIi the place of the owner, and practically receiving the damaged cotton, in its sale. and receiving the proceeds, and because; by the terms of tlle bill of lading, the respondent's contmct of carriage was: for the most part completely performed, became thereby liable to pro rata treight on the damaged cotton sold and accounted for; biit; there was no delivery of tll,e cotton destroyed by the fire, no freight ev'er 'became due· on that part, and respondent was not entitled to any freight fOl' that part from the insl1l'et. ,
In mand. ';
.. Ubel by the Madne Insurance SQllthern Pa!Jific .compfl-ny to recover freight to part of its d\'!· ,
}'iJsq., of the New York par,
'Reported by E. G.