This was a libel by William T. Styffe against the steam tug J. 8i J. McCarthy, Frederick A. Verdon, claimant, to recover damages for personal injuries. The district court rendered a decree for divided damages (55 Fed. 85), and the claimant of the tug alone appeals. The facts and the matters in controversy, aside from the testimony, were thus stated by the 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 bUts. The tow had been taken from the Wallabout by 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 th" 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 stem 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 do 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."
McCarthy & Berier, for appellant. Hyland & Zabriskie, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. PER CURIAM. We are entirely satisfied with the conclusions of the district judge that the libelant was injured by the negligence of those in charge of the tug in permitting her to go ahead, without notice to the libelant, while the libelant was attempting to fasten the tug's hawser in a new location upon his own boat, at the request of those in charge of the tug. We are less satisfied with the conclusions of the district judge that the libelant was also negligent. As, however, the libelant has not appealed from the decree dividing the damages sustained by him, we can only affirm the decree. The merits of the controversy depend entirely upon the credibility of the witnesses who were examined in the presence of the district judge. We think the appeal was entirely unjustifiable, and that the cause is a proper one for allowing to the appellee, in addition to interest, damages for delay to the extent of 10 per cent. upon the amount of his recovery, with costs of this court and of the district court. The judgment is affirmed, with directions to the district court to decree accordingly.
THE ARGONAUT.' DEMING v. THE ARGONAUT. (District Court, S. D. New York. May 8, 1894.)
SHIPPING-PERSONAL INJURIES-UNCOVERED HATCHWAV.
Leaving hatches open during intervals in unloading, the passage-wa;r Ilnd the hatches being reasonably lighted, is not negligence.
Reported by E. G. Benedict, Esq., of the New York bar.
SAlIJIlr-(>OSITION .0' HAiTCHKNOWNTOLl:ijELANT.
asllore at night, fell ihtoa hatchway; the position of which was known to
him, and which was guarded bycoamings 12 to 14 inches high. Held thp,t,. even if the hatchway was unlighted, his faJI was the result of his own carelessness.
·A s.tevedore's employe,after quitting work at unloading a ship, in going
This was a libel by Frank Deming against the steamship Argonaut for personaJinjuries 1;() libelant while employed in unloading the Hyland & Zabriskie, for libelant. Oonvers & Kirlin, for 'defendant. BROWN, District Judge. The libelant, one of the stevedore's men employed in unloading bananas from the steamship Argonaut to a float alongside of her, at pier 3, North river, on October 23, 1893, fell down tlIe open hatch of'the vessel after the men had quit work, and was considerably injured, for which the above libel was filed. The libelant's testimony, corroborated by a single witness only, is to the ,effect that after quitting work he left the float by a plank run from the top of the float to the deck of the steamer, for the purpose of going ashore; that it was dark; that the hatches were off, lind that no lights were about the hatch, and that he walked into it, having no knowledge of the danger. I am compelled to flnd that the libelant's testimony is overborne by many witnesses for the claimant showing that there was an abundance of light iwmediately about the open hatch; that the lights were left there during supper-time, as work was to be resumed in the evening in order to clear out the dirt and empty boxes. Without referring, therefore, to other points in which the libelant's story is contradicted, I must:flnd that no negligence in the ship is established; sillce it was not negligence to leave the hatch covers off in the intervals of work, when the passage-way and the hatches were reasonably ligAted. The Jersey City, 46 Fed. 134; Dwyer v. SteamShip 00.,17 Blatchf. 472, 4: Fed. 493. The . moreover, had been moving bananas taken out from tha'l;,very hatchway. He knew its position perfectly. It was guarded b1j, .f:roxp. 12 to 14 inches high; and even if there had beeri.,polights placed at this hatchway at the moment when he quittmg work (if in that regard the libelant's story went were to adopted), it could only be by very plain carelessness of the libelant that he should walk into the hatch, and tumble over the coamings. He does not even remember of touching the coamings with his feet at all. Other circumstances in the case diminish reliance upon the libelant's testimony; but without further reference to these, the testimony as.to the lights is alone sufficient to prevent the libelant's recovery. Anderson v. The E. B. Ward, Jr., 38 Fed. 44; The Elsie Fay, 48 Fed; 700; Taylor v. Manufacturing Co., 140 Mass. 150, 3 N. E. 21. Decree' for the defendant.
THE ELENA G.
THE ELENA G. NEAL
Aprll 24, 1894.)
(DIstrict Court, E. D. PennsylvanIa.
A bark laden with petroleum was moored at a wharf when an explosion occurred near by setting fire to the wharf and covering the water with burning oil. The bark and cargo, worth about $35,000, were saved by the exertion of five tugs, worth $53,000, at a risk to the tugs and their crews. Held, that $&,800 was fair compensation.
In Admiralty. Libel by Neal against the Elena G. for salvage. J. Rodman Paul and John F. Lewis, for libelant. Henry Flanders and Edwd. F. Pugh, for respondent. BUTLER, District Judge. About 4: o'clock on the morning of October 9, 1892, as the respondent lay in the river Schuylkill, at the Atlantic Refining Company's wharf (at Point Breeze) laden with a cargo of 39,641 cases of refined petroleum, moored against the bark "Felix," an explosion occurred at the Gas House wharf, a short distance above, setting fire to that wharf, and to large quantities of oil floating on the river. As the tide was down the flames were carried rapidly to the refining company's wharf, and communicated to the "Felix" and respondent, creating great alarm and danger in that vicinity. Some members of the respondent's crew went ashore to cast off her lines, but were prevented, and their return cut off, by the fire. The balance of the crew remained on board, unable, probably to get off. The flames spread rapidly, and there was great danger they would reach the cargo, and cause instant destruction of the vessel and everything on board. Oil was stored along the wharf near by, and explosions from parts of it were frequent. situation was one of great peril to the respondent, and to everything in the immediate vicinity. The tug "McCaulley" was lying alongside the respondent when the first explosion occurred, prepared to tow her out, in pursuance of previous arrangement. She immediately endeavored to get under way; but the situation was such (the respondent's entanglement with the "Felix," a large vessel, and being, probably, aground, with the water very low,) that it was impossible to do more without aid than pull her a very short distance from the wharf. Persistence in the effort would, I believe, have been useless to the respondent, and dangerous to the tug. After parting the hawser three times, and seeing other vessels in danger lower down, she went to their aid, returning after the lapse of probably, 20 minutes. The tug "Juno," which had been seriously on fire, was then present throwing water on the burning barks. The "Mary Louise" and the "Churchman" arrived soon after, and the "Bradley" a little later. The ''McCaulley'' was again made fast to the respondent, and with the assistance of the other tugs, succeeded in pulling her and the ''Felix,'' (still firmly attached) across the channel; where they were held in place until the fire was extinguished. Sub-