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.
BRITISH & FOREIGN MARINE INS. CO. tI. SOUTHERN PAC. CO.
Butler, Stillman & Hubbard, for libelant. Benedict & Benedict, for respondent. BROWN, District Judge. The controversy in this case turns upon the question of the right of the carriers to pro rata freight on 52 bales of cotton, part of which was destroyed and the rest damaged, by a fire on the pier of the Morgan Line in this city, on February 28, 1887. These 52 bales were parts of much larger quantities of cotton, which had been shipped partly from interior points in Texas, on the Houston & 'l'exas Railroad, and partly from Galveston and New Orleans. All the cotton was covered by bills of lading, somewhat different in form, but all providing for the transportation to New York by the Morgan Line of steamers, and thence to Liverpool and to other European ports by steamer from New York. By the bills of lading, none of the different carriers were to be responsible for any damage except such as occurred on its own part of the route. The course of dealing was that each succeeding carrier advaIwed to the preceding car-riel' the charges of the latter .for its proportion of the transportation; while the freight specified in the bill of lading was at a certain rate per pound, or per 100 pounds, for the transportation as an entirety, and was payable on at the place of final destination. :Most of the cotton covered by the various bills of hIding was delivered at the place of destination. But so much as was damaged by the fire and was not in fit condition to be fOl'\varded was sold, and the proceeds thereof was paid to the defendant, the proprietor of the :Morgan I ...ine. The libelants were the insurers of the cotton, to whom an abandonment was made of what was damaged by the fire; and the proceedings for the care, reparation and sale of the damaged cotton were made, as the evidence shows, with the concurrence and approbation of the libelants. Out of the proceeds of the cotton sold, the defendants claim to retain a pro rata freight to New York, both upon Ole cotton damaged and sold, and also upon the cotton that was totally destroyed by the fire; i. e. the amount of freight which the respondent had advanced thereon to preceding carriers, and its own pro rata charges for the transportation to New York. The libelants deny that. the respondent has any right to retain any freight charges at all on the cotton destroyed, or sold here, for the reason that no freight was earned thereon, in consequence of the failure to deliver this part of the cotton at the stipulated place of deliwr,Y, so that no freight thereon ever became due. The case is not one of a complete failure to perform the contract. It is the case of a complete performance of a part of what was embraced iJl the bills of lading, and of a failure to perform the residue through perils for which the carrier was not responsible. The libelant, as insurer, accepting an 3'bandonment, as regards the damaged cotton, stands in the situation of the shipper and owner. The disposition of the damaged cotton was made for the best interest of all concerned, viz.: the carrier, the owner and the insurer, and though the disposition of the cotton was through the hands
]fEDERAL REPQRTEH. vol.
of the respondent, this was practically, as it . seems to me from the evidence, the joint act of both the parties to this libel; and all the proceeds, save the amount covered by this dispute as to freight, has been turned over to the libelants. The disposition of the damaged cotton was, therefore, equivalent to an arrangement for the acceptance and disposal of it by both for their ioint account and benefit. From the earliest times the rule of the maritime law has been different from that of the common law in respect to payment of pro rata freight; the rule being that where the ship, through accidentor major force, has been prevented from completing her voyage, the owner, on receiving his goods, must pay ratable freight. Macl. Shipp. 478; Roccus, 81; Consolato, 151; and see other authorities cited in The Spartan, 25 Fed. Rep. 44, 57. Upon this ground I must allow to the carrier in the present case a pro rata freight upon the damaged cotton, the proceeds of which were received by the libelant as the owners' representative. The present is a stronger case for a pro rata freight from the fact that the bills of lading contemplated in .several respects the divisibility of the contract; and because the contract contained in the bills of lading was for the most part completely performed. The method of dividing the entire freight was a matter of pri· vate arrangement between the different carriers, to which neither the owners of the cotton, nor the libelants, as insurers, were parties. If any question is made as to the equity of this division, the libelants are entitled, and will be allowed, to take further proof concerning it. As respects the cotton destroyed, on which the pro rata freight retained by the defendant amounts to a net balance, as I understand from the evidence, of $614.75 over all average deductions for salvage, etc., I do not see any ground on which the respondents can prevail. No beneti,t has ever accrued either to the owners or to the insurer from the cotton destroyed. So much of the cotton is gone, and the freight is gone with it. The ground of the allowance of a pro rata freight is the meritorious service on the part of the ship in the delivery of the goods to the owner, (Macl. Shipp. 478,) though not at the place originally contemplated. The meritorious services exist in this case as to the. damaged cotton delivered, or, what is the same thing, sold by mutual arrangement, and accounted fOf. But as to the cotton destroyed, this consideration wholly fails; and the freight being payable by the pound, there is no legal or equitable ground, on the destruction of a part, for holding the residue for the freight on the cotton destroyed. No deduction, therefore, should be made for what was destroyed, and the libelants are entitled to a decree for the amount withheld on that account; and they may g;.ve further proof as respects a fair pro rata on the residue, if the division made is not acceptable.
J. & J. M'CAR'l'HY.
THE J. & J. McCARTHY. 'STYF:B'E v. THE J. & J. McCARTHY.1 (District Court, S. D. New York. April 1, 1893.)
SHIPPING-PERSONAL INJURIES-SHIFTING HAWSER OF Tow-LIAmLITY OF TUG.
Libelant, master of a canal boat in tow of defendant tug, lost two fingers by getting them caught in the loop of his hawser while shifting it from the port cleat to the forward bitts. On conflicting evidence the court found that the shifting of the ha.wser by libelant was in response to an authorized hail from the tug, and that the accident was due to the premature starting up of the tug. Held, that the tug was liable; but as the evidence also indicated that the libelant carelessly and unnecessarily exposed his fingers in loop of the hawser while pushing it down on the bitts, held, that libelant was also negligent, but should recover $450. The Max Monis, 11 Sup. Ct. Rep. 29, 137 U. S. 1.
& J. McCarthy for personal injuries.
Libel by Wm. T. Styffe against the steam tug J. Decree for libelant.
Hyland & Zabriskie, for libelant. McCarthy & Berier, for respondent. BROWN, District Judge. On the 19th of July, 1892, between 2 and 3 o'clock in the afternoon, the libelant, who was the captain in charge of the canal boat Fred Fassbender, which was going around the Battery in tow of the tug J. & J. McCarthy on a hawser about 40 or 50 feet long, lost two of the fingers of his right hand by getting them smashed in changing the hawser from the port cleat to the forward bitts. 'l'he tow had been taken from the Wallabout bv two hawsers running to the port and starboard sides. Off pier 5" or 6, East river, the starboard hawser either slipped or parted, and the canal boat, being held by the port line only, began to take a sheer to starboard. The libelant was at that time near the stern of his boat. Seeing the sheer, he ran forward, saw that the starboard hawser was gone, and, according to his testimony, was hailed by one of the men on the stern of the tug, who told him to shift the hawser from the port cleat, and put it over the bitts near the stem; that he attempted to dQ so; and that while putting the loop which formed the end of the port hawser over the bitts, the tug started up, and that his fingers were thereby caught between the hawser and one of the bitts about six inches ·from its top. The libelant was but 21 years of age, and had been on board the canal boat as captain for only a short time. The witnesses for the tug all testified that no order was given from the tug to the libelant to change the port hawser. The pilot and engineer testified that the tug did not start up. The deck hand and the cook, who were on the stern of the tug, contradicted each other about the starboard hawser; while the cook says the tug did start up, and he agrees with the libelant in assigning that as the reason why his fingers got caught.
1Reported by E. G. Benedict, Esq., of the New York bar.
Upon the contradicting testimony I must find in accordance with the reasonable probabilities of the ease. The libelant had no business to change the hawser, except on orders from the tug; and is not the least probability that he would do so. I p.ave no doubt that he did receive a hail to change the hawser, as he'testifies; anrl that tbis hail was in some way either directed by the pilot (If the or was known and acquiesced in by him; It was t,he proper qnd natural thing' to do; while the pilot's account of what he \V9.R doing-, or ratherw/1\l not doing, seems to me wholly improbable. r cannot. give full credence to the testimQny of the witnesses on the McCarthy as to what was done or not,dohe, on account of the contradictions between them, /1S well as the improbabilities arising from the situation. The pUotsays that for a considerable period, namely, while the libelant ran forward, got off the port hawser and got hurt, he was not looking aft, and did not see what was going on; though he knew the starboard hawser was gone and that the canal boat was sheering to starboard; but he says he was waiting for the boats to come towards each other. He says he ordered the starboard hawser hauled in; while both deck hands deny any such order. I am persuaded that the truth of the matter is that the port hawser was shifted on the authorized hail from the tugby the pilot's direction; that the pilot knew what was doing, and started up a little sooner than he should have done. r cannot wholly acquit the libelant, however, of some negligence Or want of reasonable precaution. The loop or eye of the hawser was some three feet in circumference. There would have been no diffi· cultyin throwing it over the bitts, but for the weight of what was . 'hanging over in the water. r have no doubt the hawser was slackened by stopphig the engines, as the pilot and engineer testify. The libelant says that he was pushing the hawser down the bitts when his fingers "Were caught. Allowing for some probable difficulty in getting the hawser over the bitts,arising from the drag of the hawser, which necessitated some pulling back all the time, stilI I can· not conceive how his fingers ,could be caught in the way he describes, except by a ,careless and unnecessary exposure ,of his fingers in the loop of the hawser; since by the use of both handsiJlpulling back, he could easilY'lJ.ave kept his fingers away from the bitts.,The tug, however, had' 'rio right to start up, under such circumstances, until a signal was given that alhvas ready for the start, and. no such signal is claimed to have beengi\Ten. Under these circumstances Iaward him but $450. The Max Morris. 137 U. S. 1, 11 Sup. Ct. 'Rep. 29.
. ICE CO.
UNION .ICE CO. v. CROWELL et at CROWELL et al. v. <(lircuit Court of Appeals, First Circuit. Nos. 4 and 5.
March 22, 1893.)
UbelaIlt's schooner was berthed alongside respondl'nt's whnrl to load ice, and after the cargo W81! nearly all in she began to leak badly, showing signs of a severe strain by hanwng up at the ends. It was sbown that there was a greater depth of water under bel' amidships than at either bow or stern,and she W81! aground at the enlIs. At the bow there was a bed of sawdust, edwngs, etc., of whose existence both her captain and the resDondent were aware, but neitber took any steps to investigate its extent or character, a8sumlng that it was soft enoug:h for the schooner to cut into it. Respondent had, however, examined the bottom for rocks, logs, or other hard SUbstances, and removed such as were found. HeM, that both the respondent and the vessel were in fault as to the unsafe berth, and libelants' damages should be divided. A survey was had, and the surveyors recommended that the schooner the ice out of her. The ice, softened 'by the water she had taken, SUddenly shifted in the hold, and strained the vessel much worse than before. Reld, that the unsafe berth was neverthell'ss the proximate cause of tbls injury, and damages therefor are recoverable.
be beached, and repaired temporarily, which was done without
The measure of damag:es in such case is the cost of repairing the schooner, and not the difference betwen her value before and her value after the Injury. 4. SAME-Cos'rs. In admiralty the costs are under the control of the court, and do not necessarily follow the rule In cases at law or In equity. They may be denied In whole or in part to the party, or even allowed to the losing party, as, in view ot all the facts, seems proper.
SAME-MEASURE OF DAMAGES.
Appeals from the District Court of the United States for the District of Maine. In Admiralty. Libel by Samuel R. Crowell and others against the Union Ice Company for damages to the schooner "Weybosset." The district court entered a decree for divided damages, and subsequently overruled respondent's exceptions to the assessor's report, at the same time sustaining in part and overruling in part the exceptions of the libelants. Both parties appeal Aftlnned. The opinions of the court below, by WEBB, District Judge, referred to by the circuit court of appeals, are as follows:
(Avril 16, 1800.) The owners or the sc1J,ooner Weybosset pro'lecute this libel to recover for Injury and damage to their vessel, as they aver, by the unsuitable a;Ud dangerous condition of the bott(lm at the berth provided for loading !leIs. With ice from .the respondent's ice houses on the bank of PenobsCot river. The case shows that the Union Ice Company, proprietor ot ice hOIlEleB and a loading pier, contracted ice to be loaded !it their pier; trom their houses, and that the Weybosset, under a charter, proceeded thither to take a cargo. Thill brought her lawfully at the berth,and was such an invltatlun to come'there 81! imposed. on the. owners ot the pier the duty to employ reasonable to bare the place $afe. and proper for the vessel to lie. The Moorcock,