(District Court, E. D. :New York.
March 1, 1881.)
EXCEPTIONS TO LmEL-BILI:l OF LADING-DAMAGE BY
RUST., Where a bill of lading under which tin plates were shipped contained an exception of liability for damages by rust, an action was brought to recover damages for non-delivery in good order, in that the tin, when delivered, was damaged by sea-water, held, that there being no averment that the rust was caused by negligence on the part of the carrier, and rust being the necessary damage'to such merchandise from sea-water, and excepted by the bill of lading, the libel shows nO cause of action.
In Admiralty. Exception to Libel. Sidney Chubb, for libellant. Foster et Thomson, for respondent. BENEDICT, D. J. The exception to the libel is well taken. The libel sets forth a bill of lading, containing, among other things, an exception of liability for rust. It avers a shipment under the bill of lading of certain tin plates in good and a failure to deliver the plates in like good order, in this, that the tin when delivered was damaged by sea-water. This is equivalent to saying tha.t the tin when delivered was damaged by rust,-rust being the necessary if not the only age capable of being produced in merchandise of this description by contact with sea-water. Damage by rust having been excepted by the terms of the bill of lading, the libellant, in order to recover, must aver and prove that the rust upon the tin was caused by negligence on the part of the carrier. This libel contains nothing to show that the rust was caused by negligence on the part of the carrier, and it fails, therefore, to set forth a cause of action. The exception is allowed, with leave to the libellant to amend, on payment of costs.
T,lIE EFFIE J. SIMMONS.
A tug is bound to 'know the nature of· the bottom of the stream and the depth .of the water in it is employed.
:Z. S.um-S4ltm. , , A schooner, while being towed up the Charles river, as the, tide was runnin:g out, grounded with her head up stream, in such a position that she would probably have sustained no injury if she had not been disturbed. The tug, however, attempted to haul her off, and fiDllolly left her with her sternfast where it first tou,ched, but her head projecting into the channel, where the bottom was sufficiently uneven to cause her to strain and break. Held, that the tug was in fault in thus a.ttempting to pun the vessel off.-[ED.
F. Dodge and E. L. Dodge, for libellant. Frank Goodwin, for respondents.
D.,J. The respondents undertook, by their tugboat, the Charles River, to tow the schooner Effie J. Simmons, laden with coal, up Charles river, from Crague's bridge to Henderson's wharf, in Brighton. As the depth of the channel at high witter is only 12 feet, and the draught of the I;lchoonor, as she was loaded, was Hi feet, this could be done only at or very near high water. On the passage up the river the schooner grounded Mid sustained injury. The accident seems to have occurred in this way: When the two vessels reached a point in the river opposite Gouch's wharf, the tide having then begun to fall, the tug slackened her speed, and passed a little to the south of what may be called the lowwater channel of the river, in order to avoid another vessel then lying moored to the northerly bank with an anchor out into the stream. Where the schooner passed the water had slightly diminished in depth, and her stern touched bottom and stuck fast. The bottom at this point, up and down the stream, was smooth and even; and if the schooner had been left in the position she was in when she tOllched,-that is, headed directly up the stream,-she would have rested, as the tide fell, evenly on the whole length of her keel, and in all