fDisfirict Oowrt, E. D. PennsyZfJania.
March 11, 1881.)
ADMIRALTY-CRUBHING OF BARGB IN DOCK BETWEEN TWO STEAM8HIP.S-LISTING OF STEAM-SHIP AGROUND WITH FALL OF TIDEBURDEN, OF PnOOF.
A barge was forced into a clock at high water between two steamships. Upon the fall of the tide one of the steam-ships listed over towards the other, and the barge was crushed between them. The -testimony showed that the movement of the steam-ship was caused by the fact that she was aground, and consequently, upon the fall of the tide, listed over towards the other, and that this could not have been prevented by any care on the part of those in charge of her. Held, that it was probable from the testimony that the barge 'was guilty of.imprudence in entering the dock, but that, admitting the proprie,ty of her doing so, she could not recover, since the evidence failed to show that the accident could have been prevented by those in cllr:rge of the ,steam-ship.
Libel by James Ward against the steam-ship Behera to recover aaJ?1ages for injuries to libellant's barge. The facts were as follows: The iron steam-ship Behera, 248 feet long and 34 feet 8 inches beam, having on board 1,750 tons of old rails, and drawing 22 feet aft and 20 feet forward, went into the dock at pier 39, Delaware river, Philadelphia, on June 7, 1880. On the opposite side of the dock, which was 85 feet wide, the Matthew Curtis, an iron steam-ship, 290 feet long, 33 to 35 feet beam, was lying, empty. On the same day libellant's barge arrived off pier 89 with coal for the Curtis. At 1 o'clock on the next day, at high water, the barge was pushed in between the steam-ships, and commenced unloading its cargo into the Curtis. There was so little space in the dock that it was with some difficulty that the barge was forced in. When the tide fell the barge became jammed between the two steam-ships and was crushed. Libellant alleged that when the barge was pushed into the space between the steam-ships the Behera was afloat and yielded to the pressure; that her mate offered a line to the barge, and promised to breast the steam-ship nearer to the wharf;
that he failed to do this, and that in consequence of this neglect, and of the lines of the Behera being slack, she swung into and crushed the barge. The respondents alleged that the Behera entered the dock at high water, and had then to be forced in on the mud; that, owing to the bank at the 'side of the dock, it was impossible to moor her close to the wharf, but that her bow projected into the dock at an angle; that she was at all times aground, and with each fall of the tide listed over towards the Curtis; that when the barge entered the dock; her captain was warned by. the mate of the Behera that she would be jammed; that the lines of the Behera were taut, and that the accident could not have been avoided by any care on the part of respondents. There was evidence that the dock had a short time. before the accident been cleaned out to a depth of from 21 to 24 feet at high tide, but that a city sewer emptied into it close to where the Behera was lying. Edward F. Pugh and Henry Flander8,' for libellant. Henry G. Ward, for respondents. BUTLER, D. J. That the libellant was guilty of imprudence in taking his barge into the dock, between the two large steam-ships lying there, seems more than probable. He had been present, awaiting opportunity to enter, for nearly twenty-four hours, and had seen the situation of the ships at low water-lying close together, their bows almost touching. :;1e knew, as his witness, the stevedore, testifies, that he could only get in at high water, and that as the tide ran out the Behera would "list," and press over towards the Curtis. When he entered, (at high water,) the space between the ships was insufficient to admit him, without forcing a way between them. The testimony of the stevedore,as well as his own, shows that he knew he could only remain while the water \Vas 'up; and that he 'was doubtful of the safety of being there at all. In addition to this, the weight of the evidence, in my judgment, justifies a belief that he was warned from the Behera, before entering, that it would be ullsafeto do so. I attachno importance to the circumstanr.e v.6,no.4-26
402 that he was offered a line frornthe Behera, when struggling to get in, and had become jammed; nor to what is said respecting a promise to "breast over." But admitting thepropt'iety of entering, the evidence still does not, in my judgment, 8usta'in, the libellant's claim to for his loss; The burden of proof rests upon him. He must show that the respondent could have kept Q:ff. The evidence not only does not do this, Lut, in my judgment, shows the contrary. I think it proves, with rea· sonable certainty, that the Behera was aground, from the time she entered until she left. Tile WItnesses from aboard her, who alone can speak with certainty, all testify she was. The master of her tug says she was dragged in on the mud; and this was at high water. What the libellant's witnesses 'Say respecting it, is little, if any, more than conjecture. They, generally, judge she was afloat, because they "pried her over" in pushing the barge in. It seems more probable that their effort to do this forced the Curtis (she being light) away. Althongh the latter vessel is said to have been moored close to the pier, it is not probable she was so close as to prevent the movement suggested; Again: the Behera's -draft, forward, was 20 feet. The dock, according to .the Qwner's testimony, had a depth when cleaned out, a .few months before, of 21 to 24 at high water. It'would not 'be safe to put it above the lower of these figures iand this would be correct only when applied to the center, and parts mentioned by the assessor. Allowing for the ordinary accumulation of mud, with the increase produced by the sewer -discharged where the ship lay, it is quite reasonable to be:lieve that the depth there at high water, was less than the Behera's draft. That the Behera had a "list" towards the Curtis, almost irom the time of entering,js dear. The libellant's witnesses ,agree she had when the tide was down. When.it was up she would straighten, until nearly even, and· settle over as the water lowel'ed. That such w()uldbe her position and action, when aground at the side ()f channel, might reasonably ,be 0xpeeted. The shelving bank at the side of the dock,
create.d by the support left, for the pier whel1 cleaning out, and the accumulation of mud, would tend dire.ctly to this if it would not necessarily produce it., In addition to this, however, the officers of the Behera, and of the tug, say there was such a bank, especially towards the front, so extensive as to force the ship several feet from the pier, on entering. These officers further testify that she "took a slight -list" soon after going in, which increased as the water went down, breaking several of her line,s, and carrying .her ov forward, to within about three feet of the Curtis., This r, was her exp rience before the barge entered. Forced in, as it was, at high water, with no room to spare at that time, it required but a very slight increase of the Beheta's "list," to bring her weight against the barge, and crU::Jh it. The libellant .says. he experienced no difficulty for· an hour or more after entering; but when the water was runnmg down he discovered that was pressing over; and soon after he was fast. The ship was simply repeating .her movements , of the preceding day and night. To his statement that the pressure was first against the lower part of his vessel-intended to show that the ship was not careening-I attach no importance. That she was, careening, almost from the time of entering .the dock, is fully proved. That she would do so, as the tide ran. out, must I think, have been inferred, in the absence of the direct evidence produced. It is not probable the libellant paid such particnl!lor attention to the manner in which the came together, as would enable him to speak with accuracy on the subject. The fact had no such significance at the time, a.s was calculated to arrest his attention. If, however, the statement is accurate, it does not prove, .ot materially tend to prove, that. the ship was not careening. Where the vessels would first touch, if shewas, would depend upon the shape of their 'hulls, and the position of the barge,of which we are not informed. The latter may have careened towards ·the Curtis; and in view of the work being ,done on that side. it il3 improbable ahe did-:-(it is certain the Curtis careened to her); and this of itself might produce the described. That the immediate cause of the disaster
was the careening or "listing" of the Behera, I am fully convinced. That this careening could not be prevented is clear. There was no force at command sufficient to overcome the combined weight of the vessel and cargo, as she went over from the bank, with the receding tide. Had the cables been so taut as to allow of no motion without something giving way, something would have given way,-posts, cables, bits or side of vessel. I do not find anything to justify a belief that the officers of the Behera were guilty of any fault, contributing to the disaster. They, as well as the crew, swear she was as close to the pier as she could go; and no one can safely assert that she was not. What the libellant's witnesses say 'on the subject seems to be little more than guessing. In the absence of direct evidence, thEl presumption would be that she would go as near as she could, on entering. It was her interest to do so, as she intended discharging there. The' circumstance that she did not get near enough to discharge, and was compelled to go elsewhere for this purpose, is persuasive'evidence to the same effect. Thelibellant's loss must, therefore, be regarded as the con-' sequence, alone, of his own imprudence in the dock, under the eircilrilstances, or of 'remaining there so long. It is proper to say that even if the Behera had' floatad at high water, and might comlequently have been moored closer for a time, the result, in my judgment, must have been the 'same'. So soon as the ship touched the bottom she would ha.ve'slid off in the mud, and careening over, have crushed the barge. That she would have touched bottom before the time at which the disaster occurred,-if afloat at high water,-I have no doubt. The tide had then been running down for' over an hour and must have fallen two feet. The answer to Captain Hewitt to whom, as assessor, interrogatories were addressed, will be filed herewith. The court addressed to an assessor called all a nautical expert interrogatories which with the answers thereto were as follows: First. Supposing the statements of the libellant and Mr.
Lovett the stevedore, to be correct, as respects the situation of the ships in the dock, was it prudent to take the barge in between them, and to remain after the tide had commenced to run down? Answer. The libellant was very imprudent in going into the dock under the circumstances which he and Mr. Lovett the stevedore describe. He should have expected to get fast. If he stayed any length of time he almost certainly would. Second. Are the bottoms of docks usually level from side to side, affording an equal depth of water throughout? Describe their usual condition in this respect. Answer. The docks when first dug or cleaned are deepest near the middle. The is not removed, to the same extent near the foundations of the piers. The effect of vessels settling in the mud as the tide goes down at the sides of the dock, is to slide off and fbrm a bed and at this place on each side the water will usually be found deepest pretty soon after the dock has been constructed or cleaned out. This bed will be from 20 to 25 feet from the pier; the vessel in going on the bottom will slip from thepier, the crndition of the bank formed near the founda.tion throwing her off as she settles. . . .'.' Third. Considering the Behera's size and draft, (20 .,feet forward) and her cargo, (1700 tons) was it practicable to keep her close to the pier? AnslNr. It was not practicable to· keep the Behera up to the pier. If she floated at high water she could be breasted close; but as soon as the tide ran down sufficiently to let her touch the bottom she would slip off in the mud and then probably list over. I have no doubt of ,this. No fasts would keep her up after she ceased to float; her weight would be on them and. soniethingmust break. Fourth. In an hour and a. quarter after the water reached its height, how much would it fall off? Answer. The tide would fall at least two feet and most probably two and a half feet in an hour and a quarter after it had reached its height.
(District Court, E. D. Pennsylvania. March 15, 1881.) 1.
ADMIRALTY- MARITIMJll LIEN-SUPPLIES FURNISHED ON THE ORDER OF CHARTERERS.
A charterer is not the ag,ent of the owners to charge the vessel for supplies, and no lien exists for such supplies furnished upon his order and for his benefit at the port where he resides.
2. SAME- AGREEMENT BY CHARTERER TO FURNISH SUPPLIES IN PART PAntENT.
In such case the fact that the charterer was to furnish supplies in part payment is unimportant.
3. SUIE-CREDIT GIVEN TO VESSEL IN IGNORANCE OF CH.ARTER. It is immaterial, in such case, that the person furnishing the sup-
plies trusted the ship, and had no knowledge of the relation in which the person ordering the supplies stood to the ship.
A coasting steamer was cllartered for a foreign voyage from a port, not her home port. By the charter the owners reserved the right to nominate the captain and engineers, but these officers were to be paidhy the charterer.'l, who were al.'loto pay all the other expenses of victualling, coaling, and running. In accordance with a stipulation of the charter a foreign registry was taken out at the port from which she saillld. The charterer, who resided at this port, ordered coal there, which was furnished to the vessel. Held, that whether or not the charterer was owner pro hac vice, (a question left undecided,) no lien existed for the coal, since the charterer was not the agent of the owners to charge the vessel.
Libel ,by the Consolidation Coal Company against the stearn-ship Norman, to recover for 277 tons of coal furnished to the vessel in New York. The following facts appeared from the testimony: The Norman was a coasting steam-ship, owned by a MassauhusEltts corporation, composed of residents of Boston and, Philadelphia, in one of, which ports she was enrolled. In November, 1878, Murray, Ferris & Co., residing in New York, chartered her fora \Toyage to ,Nassau and other ports. By the terms of the charter the charterers agreed to pay all the expenses of victualling, manning, coaling, and running the vessel, and all port charges, etc.; the owners reserving thE}
*Heported by Frank P. Prichard, Esq., of the Philadelphia bar.