ing party, nor any,disc()very or eVidence obtained from him, whetl:l.er as a party or witness,by means of a judicial proceeding in 'this or any foreign shall be given in evidence, or in any manner used against him W'his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture. The defendants cannot be required to make disclosure, by answer or otherwise, of any fact upon which the claim against them may depend, nor can they be required to produce any books or papers which would subject them to a penalty. Johnson v. Donaldson, 3 Fed. 22. Even in a civil action for the recovery of a penalty, the defendant is exempt from answering specifically .the allegations of the petition. The proper answer, in such a case, is that he is not guilty of the wrongs charged against him. It is not necessary to consider any of the other grounds upon which the demurrer is based. There is no case in equity against the defendants. The bill will be dismissed at the complainant's cost.
THE RAVENSDALE. ,ANDERSON v. THE RAVENSDALE et aL (District Court, S. D. New York. March 2, 1894.)
SHIPPING-PERSONAL INJURy-HoISTING, CARGO-NEGIlIGENCE-FELLOW SERVAN1'S.
In addition to this"section 860, Id., proVides that no plead-
S.,and under the general rule as to equity juris-
Where the libelant a longshoreman, was injured by the fall of a draft of boards which were being hoisted aboard a steamer, and the evidence showed that the cause of 'the accident· was the imprOper fastening of the draft, so that the -draft did not tauten as it should have done when the draft went up, held, that.it was immaterial by whose fault this occurred, ,since it was certa1nly done, by one of the, several workmen. engaged in the same common employment, which would prevent any recovery ,by the libelant.
This was a libel to recover damages for personal injuries,fil,ed by Saverin A. Anderson against the steamer Ravensdale and Roperts Bros., stevedores, who were loading said steamer. Ryland & Zabriskie, for libelant. QOIlvers .& Kirlin, for ;the Ravensdale. Ch;\rIe,s O. for Roberts Bros. lJRQWN,District Judge. On the 16th of February, 1891, while the lighter Georgia Pine was lying alongside the steamer Ravensdale, at the Atlantic basin, and delivering a cargo of boards to the steaJ;ller, the libelant, who was captain of the lighter, and was asSli&ting a gang. of men employed by Roberts Bros., stevedores, in hoisting the boards upon the steamer, was severely injured by the fall of a part of one ;of the drafts, just before it was hauled over the steamer's rail. One of the vertibrae of his back was dislocated, causing incurable paralysis of both the lower 'limbs. The above
libel was filed to recover for the damages against the Ravensdale, and the stevedores who were loading her. The boards were hauled up in drafts of 25 or 30 boards. . There is contradiction whether these were secured by a sling, passed around them with a double turn, or whether the fall rope itself was run twice round and then hooked to the same rope, without a sling. This fall ran to a block attached to a boom rigged to the steamer's mast, and from thence was operated by a winch on board the steamer. The boom was designed to swing out when the draft was to be taken up, so as to keep the draft free from contact with the side of the ship, and to swing in as soon as the draft was above the rail. The top of the steamer's rail was from 10 to 15 feet above the load of boards on the deck of the lighter. The boards were from 12 to 14 feet long, and were fastened by the rope or sling at about two-thirds of the length towards the upper end of the draft. The libelant oontends that the draft by which he was injured, as well as others before it, caught against the projecting parts of the steamer's side, or against the projection of the rail, which was from one to two inches; that this liability ought to have been guarded against by the use of a skid; and that the catching of the upper end of the draft loosened the hold of the rope around it, and caused the boards to fall. The defendants contend that there was no projection on the Ship's side, save the slight projection of the rail, which was rounded; that the ship had skids, but that they were not used, because it was not customary or necessary to use them with a smooth, iron-sided ship like the Ravensdale, but only with wooden ships, to protect the vessel's side; that this draft did not catch at all, and that the boards fell, because the sling, after being passed around the draft by the libelant himself, was improperly run through a loop made at the thick, stiff splice of the sling, instead of away from the splice, whereby the natural and proper tightening of the sling around the draft as it was hoisted up was prevented; and that the libelant was previously remonstrated with for making the loop of the sling at that splice. The libelant testified that no sling was used, and that, so far as he remembered, he had nothing to do with adjusting the rope around the boards. Deeply as I sympathize with the libelant in the helpless condition in which this accident has plunged him, I cannot find that he is entitled to a decree against either of the defendants, without doing violence to the canons of legal decision. Except in the single particular as to whether the libelant himself adjusted the rope or sling, in which his young son sustains him, the libelant is not corroborated in his material statements by any other witness, but is contradicted by them all. Practically, his case rests wholly upon his own testimony. While this is not absolutely insurmountable as against five witnesses who contradict him in every material particular, it is at least necessary to his success that his account should be sustained by circumstances, and appear to be, on the whole, the more credible of the two accounts of the accident; and v.63F.no.4-40
such C.Ql1f9boration iii.here wanting. Had the fall rope broken in the ascent, such a circumstance 'WPUld have beep a strong corroboration oithe witness"'testimony that the draft caught; but here Had the upper end ,of the draft caught in going up, as·the libelant it did, thatwonld naturally have tightened the hold of,the rope, as aU the writnesses testify. But the libelant that he watched the draft until the lower end of it was within,iabout 2 feet of the, top of the rail; so that at that time the upper end of the draft must have been hoisted up 10 or 12 feet aboYe.the highest place where it could have caught; and at that time, as the libelant testifies, he saw nothing out of order in the dratt;, ,!:>ut "it appeared all right;" andthen he turned around to take up s0lll.e other boards. Had the top of the draft caught against ,the rail, the highest possible point, and thereby caused the rope tp: become 100lOened, the lower end of the draft must have bElen upon the deck of the lighter, or very near to it; the· e;ffect of t4e IOIQ'Sening Illll.lSt have been visible when the upper enil :was swungQ:l'f.; yet nothing like this was seen: then, or while the draft went some 1:0, or 12: feet ,big!\er up; and the loosening and slidiI;lg back Qf would, moreover, have occurred when the l,owere;o,d of the. draft: was on or near the lig-hter'sdeck, and where the sHpping of the boards could not have produced this accident to libelant. The libelant'a testimony, therefore, does not, on tQ,e whole, It probable, that the absence of a skid caused the accident,or even cpntributed to it; while upon .the defendant's
/ The l;tccc:mnt given by the defendMlts, on the other hand, does a ,reasonable explanation as to how this hap,pened,'Viz. through the mode of fastening draft, so that the l'Opeciid not tauten as it should have done when the draft went up. It is immaterial, as respects the. libelant's, right of recovery, , by whose error or fault this happened, since it was certainly done hy one of the several workmen engaged in the same common employment. The testimony is too strong against the libelant to permit. a decl' in his favor, and I am, therefore, constrained to ie dilOmiss the libel; but, under the circumstances, without costs.
VESSEL OWNEUS' TOWING CO. et al. v. WILSON et at (C1rcU1t Court of Appeals, Seventh Circuit. No. 151.
May 31, 1894.)
The .faces of the piers of a drawbridge were not perpendicular, but were built out under the surface of the water, in irregular projections of steps t!)' the bottom of the river. Contractors, in repairing the bridge, t.ook up piles which bad been driven around the piers to ward ott vessels. . Held, that tbeywere liable for injuries sustained by a vessel striking against the under-water projections of a pier.
IN NAVIGABLE STREAM.
A loaded vessel, while being towed down the Chicago river in broad day, struck against the abutments of a bridge pier extending below the
VESSEL OWNERS'TOWING CO. 'V. WILSON.
surface of the water. These abutments had existed for 25 years, but had been guarded by piles which had been lately removed. Held, that the tug was guilty of. negligence.
On Appeal from the District Oourt of the United States for the Northern District of Illinois. Libel by Thomas Wilson, R. l\fcLaughlin, Mary P. Wilson, D. Morris, Wilson D. Morris, Thomas E. Quayle, William H. Quayle, George L. Quayle, Alvira Scott, Luther T. Lyman, William Wilson, the Maritime Insurance Company, and the Insurance Company of Philadelphia against the city of Chicago, the North Ohicago StreetRailroad Company, the Vessel Owners' Towing Oompany, and the Fitz Simons & Gonnell Oompany. Libelants obtained a decree against the Vessel Owners' Towing Company and the Fitz Simons & Connell Company, and the latter appeal.
This was a libel by the owners of the steamship Wallula and by the owners and Insurers of her cargo for Injuries sustained by the vessel and cargo in collision with the south abutment of the Wells street bridge over the Chicago river in the city of Chicago during an attempt to pass down the river and through the south draw of the bridge, under the following circumstances: The piers of the Wells street bridge were constructed some 25 years ago. Above the surface of the water they presented a smooth face of masonry; below the surface they were built in footing courses extending from a point five feet below the surface some six feet into the river, in irregular projections of steps, to the bottom of the river. A row of spiles was maintained by the city of Chicago in the river along the face of the abutment, driven close to the abutment at its base, and standing some six feet from its face above the water, serving to ward off vessels from contact with the abutment.· The other and more modern abutments of other bridges over the river were not so constructed, but present a smooth batter face to the bottom of the river, and, '''hile not perpendicular, were constructed at a very slight Incline, the projecting spiles being only some two feet from the face of the abutment above the water. A street-railway company, under an arrangement with the city, undertook to construct new abutments and a new bridge at 'Veils street. The appellant Fitz Simons & Connell Company' became the contractor for the erection of the SUbstructure. piers or abutments were to be taken out and removed some 10 feet nearer the shore, increasing the width of the draws of the bridge, then some 16 feet. By its contract it agreed to erect and maintain such guards, and during the nighttime such lights, as would prevent the happening of accidents or harm to life or property in consequence of the digging up, use, or occupancy of any highway, and covenanted for liability for all damages occasioned by the digging up or use or occupancy of any highway, or which might result therefrom, or from the carelessness of any servant of the company. Work was first begun in the north draw, and was completed early in the montb of April, 1888, so that it was free for the passage of vessels before the commencement of work in the south draw, except that several schooners were lying at their winter berth, about 15() feet east of the draw, rendering it impassable for large vessels. The company thereupon, and a day or two prior to the collision in question, removed all the protecting pileS in the south draw by means of block and fall purchase operated in a pile driver mounted on a scow. Just prior to the time of the accident its servants were upon the scow in removing a group of spring piles at the northeast. corner of the pier. At the time of the collision, opposite the south draw and from 150 to 300 feet west of the west end of the central projecting piling supporting the bridge, the Palmer, a large steam barge, lay aground, her bow pointing eastwardly to ·the lake, and had so beenlying for 24 hours b fQre the collision. About noon of the 9th of Aprll, 1888, the steamship Wallula, laden with a cargo of 66,000 bushels of oats consigned to Buffalo, was proceeding· down the river in tow of two tugs, owuedand operated by the appellant the Vessel Owners' Towing Company;
the ClU'Pentel' ahead and tbe Van Scbalck astern. The Wallula had no steam up, and had no control of her own movements, her tiller being lashed amid· ships by direction of the tugs. She passed to the north of the Palmer, stopping when opposite to that vessel,-in the opinion of some of the Witnesses, because !IDe grounded alongside of the Palmer. Whether that were so or not, the head tug started up suddenly and "wide open," giving the Wallula a headway of from two to three miles an hour, not in a direct line through the draw, but swinging to starboard towards the abutment. As the Wallula bore down upon the abutment, and when from 20 to 60 feet distant therefrollJ" the tug Carpenter swung off to port, working with full steam to check the steamer on her course, and endeavored to pull the stem of the Wallula around, to avoid collision with the' abutment. The maneuver was too late, and the Wllliula crashed into the abutment at an angle of about three points, coming in contact with the salient of one of the footing courses of the abutment;. about five feet belOW the surface of the water. Under the guidance of the tugs she proceeded down the river to the Central elevator. Upon examination of her bow and side above the water no fractures were found, and it was supposed that no injury had been received. Upon sounding the next m()rn!ng, four feet of water were found to be in bel' hold, and upon removing the hatches the water could be heard running in. Pumps were then applied,. the uninjured grain removed,. and the injured grain taken out and sold. The vessel was placed in dry dock, where it was discovered that an irregular hole had been made in the bluff of her bow below the water line on her starboard side from 10 to 15 feet from the stem. It was of the character of a heavy gouge, breaking and shredding a plank 5 inches thick. The district judge held that the injury was sustained by the joint negligence of the appellants, and decreed that each should pay one-half the damages sustalned. The opinion of. tbe court is reported under the title of Wilson v. City of Chicago, 42 Fed. 506.
O. E. Kremer, for the Vessel Owners' Towing 00. Ball, Wood & Oakley, for the Fitz Simons-Oonnell 00. Harvey D. Goulder and C. W. Greenfield, for appellees. Before WOODS and JENKINS, Circuit Judges, and BAKER, District JUdge. . JENKINS, Circuit Judge (after stating the facts as above). That portion of' the abutment below the surface of the water was, by reasQn of. its position and peculiar construction, a concealed and imminently. dangerous obstruction to the navigation of the river. As it was placed there by the city of Chicago, so it became the duty of the city, so long as the Obstruction was maintained, to so guard it ,that injury therefrom should not result to vessels navigating the river. Philadelphia R. Co. v. Philadelphia, etc., Towboat Co., 23 How. 209. That duty was sought to be discharged by maintaining spiles along the face of the obstruction, which were effectual to prevent vessels passing the draw of the bridge from coming in collision with the projecting footing courses of the abutment. The maintaining in place of these spiles, in the absence of other safeguards, was. an imperative d,uty. Their was an act of negligenc,e c9ntributing to produce the injury here complained of. Acting under authority of the city, the contractor, as well by its contract as by the hloW, was liable for damages from the removal of the protection. The duty is the same whether an obstruction to navigation be created or a protected obstruction be uncovered. The oontractorundertook to perform the work of removing the
VESSEL OWNERS' TOWING CO. V. WILSON.
stonework, and to ''keep free and unobstructed the channel of the river, so as not to interfere with or obstruct the movement of vessels or other craft," and to "maintain suitable signals and lights to be approved by the commissioner of public works as a warning to vessel men." This, however, merely emphasized an imperative duty imposed by law. The contractor is not absolved by his ignorance of the character of the construction below the surface of the water. Undertaking the work, he is chargeable with knowledge of the character of the work he undertook to perform. Removing protection work, whose obvious function was to protect vessels from contact with the abutment, the contractor is chargeable with knowledge of the fact of the obstruction and of its nature. The law cannot permit one to uncover a concealed and dangerous obstruction to navigaUon, and to plead in excuse ignorance of the character of the obstruction. He must act at his peril. Acting under the authority of the city that created the obstruction, and bound by the contract to protect the city, and bound by law to keep free and unobstructed the channel of the river, if, in the prosecution of the work, it became necessary to remove protection works that had been maintained by the city, and that guarded the navigation of the river, the contractor could not shut his eyes to the character of the obstruction that had so been covered, or negligently remain ignorant of its character. The protection work itself was notification of a danger that it guarded. Removing the protection, the actor was bound to know the character of the danger that he uncovered. The contractor knew of the submerged abutment, knew that it was dangerous, because protection work had been maintained to guard against that danger. Removing the protection and exposing the obstruction, the contractor is chargeable with knowledge of its character, and with the result of his negligent act in failing to substitute other and effectual safeguards and warnings. Casement v. Brown, 148 U. S. 615, 623, 13 Sup. Ct 672. As matter of fact, the contractor had sufficient notice of the character of the submerged obstruction to put one upon inquiry as to its character. In a narrow draw, only 16 feet wide, the protection spiles were placed 6 feet away from the face of the abutment above the water, whereas at the other bridges in the city the protecting spiles are placed but two feet distant. Naturally there was a motive £.01' this, when it is matter of common knowledge that such protecting spiles are driven close to the base of the abutment. The fact was sufficient to put the contractor upon inquiry, and failure to inquire, when inquiry would have disclosed the fact, was negligence. We do not conceive that the contractor is excused upon the plea that the work in the north draw of the bridge had been finished. While the work was there progressing, the draw had been closed to navigation, and certain vessels had anchored for winter quarters at the east entrance of the draw. We think it was the duty of the contractor, under such circumstances, before proceeding with the work in the south draw, and before uncover-
ing 80 to see to it that the n(}rthdraw' was free to'navigation. The ,contractor commenced the work and unoovered the. obstruction in the south draw while the north draw was as effectually closed to navigation as though: it had . been blocked with the derricksalldpile·drivers of the contractor. Nor do. we think the contractor excused by reason of the .al· leged negligence of the tug. ; ,The injury resulted from the combined negligence of the contractor and the tug. .Concurring neg· ligence is nota defense, and .doesnot relieve from responsibility, where a plain duty was owing, and there was neglect in its per· formance. In .BllCh case the adm.iralty apportions the damages between.thet()rtfeasors. It :enforcescontribution from both parties, in fault. to liquidate the injury done to a third party. Tlle Wallula cannot be with the negligence of the tug. The latter was not her agent, but an independent contractor, and· wlWlly controlled her movements. . The Doris Eckhoff, 1 U. S. App. 12,9, .1,e. C. A. 494,50 Fed. 134; The Niagara, 1 U. S. App. 658, 663, 8 C. C. A. 342, 52 Fed. 890; The T. J. Schuyler, 41 Fed. 477. By the decree complained of· the contractor is charged with a moiety of the damages only, unless the appellees should be unable to owners oithe tug the one-half part of their damages awarded against the tug company. This is in accord· with thesettle.d principle of and is Biot subject to criticiiilm.. Alabama, 92:U..S. 697; The Atlas, .93 U. S. 302; The Jm:J.iata, Id.,:UO; The sterling' and The Equator, 106 U.S. 647, 1 Sup. Ct. $9; The Max Morril!ll, 137 U. S. 1, 10, 11 Sup. at 29. Witll to the 'C1al.mof.,thecontractor the Fitz Simons & Connell ,OQmpany, in which :therowing oompany does not join, the:."Wall:llla.,is; chargeable, with gross negligence on the part of to the collision, whereby the damage to thecargo»ralf.aggravated, we need only say that we have care· fUllY e:xi;amined the testimony, ana do not think that the evidence bears out the. contention of counsel. A review of the evidence all proper ,efforts were taken in ascertainment of the injuryr;and in.protectionof the cargo. clearthatthe tug was at fault The Wallula was wholly under the contool of the tug,and" unable to help her· self. Thetv,gwas "the dominant mind or will of the adven(The FalUnie Tuthill, 12 Fed. 446), and took the whole renavigation (The Express, 3 Cliff. 462, Fed. Cas. No. 4,209). coIlisionoccurred in broad daylight, and under such fact of the collision creates a presump· tion of negligence on the part of the tug. The Delaware, 20 Fed'j 79,7. ;Engaging in the service of .towing up and down the tug was. hound to know the channel, and' wllet;her, t:p.e circuIUstan,c.es, it was, safe to make the ven· ture of 'p;:lBSingtbe draw. The Margaret, 94 U. S; 494. And' that oblJgatjon upon the master of the tug, before undertaking the. towing, a knc;nv.ledge of the condition of thebottom. ,and ,of· the depth of water in the river, .and of the exist- ..
ence and location of any well-known obstruction. The Lady Pike, 21 Wall. 1; Pettie v. Towboat Co., 1 U. So App. 57, 1 C. C. A. 314, 49 Fed. 464; The IWbert H. Burnett, 30 Fed. 214. This is not a case coming within the principle of the cases cited by counsel. The Angelina Corning, 1 Ben. 109, Fed. Cas. No. 384; The Willie, 2 Fed. 95, 8 Fed. 768; The James A. Garfield, 21 Fed. 474; 'fhe Mary N. Hogan, 30 Fed. 927; The Pierrepont, 42 Fed. 687. In those cases the tugs were absolved of responsibility for collision of the tow with unknown obstructions. Here this sunken obstruction had existed for some 25 years, and had been guarded, to the knowledge of the master of the tug, by these protection spiles. Prior to undertaking this towage, he knew those spiles had been removed. He knew those spiles stood out six feet from, and indicated that it would be dangerous to go nearer, the face of the abutment. He had seen these abutments in process of construction. 'rhe master of the tug sought to excuse himself by asserting that he supposed everything had been torn out when the piling was taken down, and yet the abutment stood there facing him with the protection gone. He confesses that his idea in towing the Wallula through the draw was simply to "keep her away from the visible thing." He assumed that the abutment proceeded on the same angle to the bottom of the river, notwithstanding he knew that the spiles stood out six feet from the face of the abutment, while at other bridges they stood out but two feet. With this knowledge, and this imperfect comprehension ,of his duty, and in view of the fact that the Van Schaick c,ould but little assistance in steering the Wallula by reason of the position of the Palmer in the channel, it was the duty of the captain of the Carpenter to have had the Wallula under oontrol, and he should not have permitted her to enter the draw at such: a speed and upon such an angle that collision with the abutment was inevitable. The decree will be affirmed.
THE VICTORY. THE PLYMOTHIAN. ELCOATE v. THE PLYMOTHIAN. OWNERS OF THE PLYMOTHIAN'S CARGO v. THE VICTORY and THE PLYMOTHIAN. (District Court, E. D. Virginia. September 18, 1894.)
COLLISION-RuLES AS TO PARSING-COAST WATERS.
Tide waters, navigable from the ocean, by ocean craft, are "coast waters," within Act March 3, 1885 (23 Stat. 438 et. seq.), adopting the revised international rules and regulations for preventing collisions at sea (article 21 of which embodies the rule "Keep to the right"), and declaring that they shall be the rules for navigation on the high seas and in all coast waters, except as are otherwise prOVided for; the exception being defined by the further provision that "nothing in these rules shall interfere with the operation of a special rule duly made by local authority, relative to the navigation of any harbor, river, or inland navigation."