(OlreuU OoW't, D. MalBacAuIIff8. May 2,1881.)
DAHAGB TO CABGO-NBGLBOT TO
POKP 00'l' BmP-DJIll'JJCTIft LnmERS. A vessel is bound to make good any damage to a cargo of sugar which may have occurred through a neglect to pump out the ship, or through a clogging of the linlbers by cpal dust, or by sugar, or bl both coal dust and sugar.
BAlm- PAYMENT BY UNDBBWRITBBS-AGRBBHBNT TO REPAY SUM RECOVERED.
The payment of the 1088 by the underwriters, after a libel had been filed by the ownel'li! of the cargo, under an agreement that the libel·, Ianta should repay to the underwriters any sum or sums which theT might recover by decree or settlement, in virtue of the unseaworthi. ness of the vessel, or the negligence of her officers or crew, does BO*, afford a defence to the action.-r:&;.. .
In Admiralty. Appeal. O. T. Russell and O. T. RusseU, Jr., for claimant. E. D. Sohier and H. M. Rogers, for libellant. LOWELL, C. J. The duty of ascertaining the facts of this case is a difficult and delicate one. That a great loss has happened is certain, but its causes are so obscure that every possible theory offered to' account for it is open to' most plausible objections.
The three-masted schooner Centennial sailed from Cardenas, bound to Boston, on the twenty-eighth of May, 1879, with 800 hogsheads of muecovado sugar, of which the greater part was the property of the libellants. The cargo was properly stowed and well dunnaged. According to the log-book, and all the evidence of the officers and crew, the pump. were tried every four hours, and the vessel made no water of any conse. quence until June 3d. On that day, at 4 o'clock in the afternoon, there was no water in the hold; at 8 o'clock of the same evening there were seven feet and a half of water there, and the ship was apparently in immediate danger of foundering. Both sets of pumps were worked all that night by all hands, and in 11 hours the water had been lowered two feet. After this, the crew being exhausted, they kept watch and watch, and the forward pumps alone were kept in operation, and were able to prevent any increase above the five feet and a half until the vessel arrived at Philadel. phia, a port of necessity, on the sixth of June. Here the schooner waa pumped out, and her cargo was discharged, and it was found that some of her seams and butts were slack. No extraordinary injury w.. dill-
covered. She was caulked and reloaded, and brought her cargo to Boston, but it had already suffered .tbe damage which the district court has found to be chargeable to the vessel.
The libellants introduced' evidence tending to show that the schooner was of a model and build unsuited to the heavy cargo of sugar which she undertook to carry, and that the caulking of her seams had been neglected. The claimants met these allegations; 'and, upon the whole. evidence,the district judge was of opinion that the schooner wall, in these particulars, sufticient and suitable for the age. I am of the same opinion. But behind this is the question, how so much water eame into the vessel without being discovered? The condition of the vessel, when she was examined, would not account for seven 'feet of water being found in the hoUt four hours after it had been pumped dry, or found to be dry. The 'official surveyors of the district court at Philadelphia so reported, and every witness confirms them. Two suggestions have been advanced in evidence and in argument to explain the fact:
(1) That the seamen neglected to try the pumps; (2) that the limbers were choked so that the water could not reach the pumps.
Upon the evidence each theory is improbable; but one or the other, it seems, must be true. If the limbers were stopped, the libellants maintain that it must have been by coal dust, which sifted into them upon the voyage from Scotland; and the claimants insist that the heavy molasses, or liquid sugar, which drains from a cargo of muscovado sugar, might harden, and effect this injurious result. The Bugar owned by the libellant company was insured by the Pacific Insurance Company of New York, and the Phrenix Company of Brooklyn, and after this libel had been filed those companies paid the loss to the libellaut company, under an agreement which is made a part of the record, by which the libellant is bound to repay to the underwriters any sum or sums which may be recovered by decree, or settlement, in virtue of the unseaworthiness of the vessel, or the negligence of her officers or crew. The district judge held that the owners of the ship had
explained the damage sufficiently to satisfy him that it bad occurred by a peril of. sea, within the true intent of the bill of lading; and he was inclined to think that the limbers were stopped by coal dust. He further beld, that the payment by the underwriters'did not affect the case. It is made my duty, by the statute of 1875, (18 St. 315,) to state the facts and my conclusions of law separately; and the latter alone are subject to review; but, as juryman, I am bound to state only such facts as seem to me, as judge, important to raise the issues of law. In this case I do not consider it to be material to find whether the pumps were neglected, or whether the limbers were clogged by coal dust, or by sugar, or by both coal dust and sugar, if either of these statements of fact is found; because, in my opinion, the ship is liable under either alternative. This is admitted to be the law, if there was any negligence or defect not attributable to the cargo of sugar; but it is equally true if that cargo created the difficulty. If such cargoes usually drain out a part of their molasses, mixed with sugar, and this co.mpound is likely to obstruct the water passage to the pumps, (and this is the evidence for the defence,) then the ship is bound to have limbers large enough, or to provide whatever other means are necessary, to enable the vessel to be kept free of water. I find, as matters of fact:
(1) That the vessel was reasonably.fit for the voyage in respect to her build and her caulking; (2) that the claimants (the ship owners) have failed to prove distinctly that the damage to the cargo was caused by perils of the sea; (3) that ihe damage was caused either by neglect of the pumps, or by the clogging of the limbers by coal dust, or by sugar, or by both; (4) that the underwriters have paid the loss to the libellants, and have made with them the agreement above mentioned.
And I find, as matters of law:
(1) That the vessel is bound to make good to the libellants their dam. age, whether it occurred through a neglect to pump out the ship, or through the clogging of the limbers by coal dust, or by sugar, or by both coal dust and sugar; (2) that the arrangement between the libellants and the underwriters does not afford a defence to this action.
(District Oourt. D. Oregon.
May 7. 1881.)
PILoTAGE ON THE COLUMBIA AND WALLAMET RIVERS.
By the laws of Oregon the waters of the Columbia and Wallamet rivers are a pilot ground upon which a licensed pilot is entitled to so much per foot draft of the vessel piloted for his services, without reference to the distance they may be required; and if such pilot first offers his services to a sea-going vessel upon such waters, and is refused, he is entitled to recover half pilotage.
The Gleneame, a sea-going vessel of 600 tons burden and 16?2' feet draft, being at Astoria, in charge of a Washington territory pilot, licensed for the Columbia river only; and bound on a voyage to Portland, was spoken by an Oregon pilot, who offered his services to conduct her to Portland, which offer was refused. Held, that the vessel might take either pilot while on the Columbia river, but as only the Oregon one was entitled to pilot her on the Wallamet river, his offer was a valid tender, so far, of pilot service, upon refusal of which the vessel became liable to him for half pilotage.
Where. the pilot law provides that an of pilot service, if refused, shall entitle the pilot to half pilotage, such offer and refusal, in law, create an obligation or contract to pay such half pilotage, which may be enforced in the admiralty against the owner or vessel.
In Admiralty. Suit to recover half pilotage. Erasmus D. Shattuck, for libellant. John W. Whalley and Rufus Mallory, for claimant. . DEADY, D. J. Philip Johnson brings this suit against the bark Glenearne, a foreign vessel of 600 tons. burden and 16t feet draft, to enforce the payment of $33, alleged to be due him as half pilotage under the pilot laws of Oregon relating to pilots and pilotage on the Columbia and Wallamet rivers,
In Admiralty. Eras'm,us D. Shattuck, for libellant. John W. WhaUey and Rufus Mallory, for claimant. DEADY, D. J. This suit and the foregoing one are for a similar cause agamst the same vessel, and were heard together. It is brought to enforce the payment of $33, alleged to be due the lihellant as half pilotage upon an offer to pilot the Glenearne, on }larch 23, 1881, from Portland to Astoria, and a refusal to accept the same. The offer was made on the return trip of the vessel to Astoria and was declined, for the reason