DE NEW ORLEANS.
909
this case this demand of libelants can be rejeoted on the evidence without committing the court to a construction of the law, further than to hold that under the law a half or quarter passenger is not entitled to have an allowance of food equal in value to one and a half navy rations, for the evidence does not show what such passengers were allowed, and the presumption in the absence of evidence is that they,received all that the law required. The demands of the libel for $100 general damages for each passenger for breach of contract of passage is not sustained by the evidence sufficiently to warrant the court in further mulcting the owners of the vessel. The six passengers who purchased tickets to San Francisco, and who were landed in this port without further transportation being furnished, have a case that the court would relieve if their demand had been put in the libel as well as in the brief of proctors, and sufficient evidence had been offered to enable the court to assess the actual damage; but the fact is that no such demand is contained in the libel. A decree will be entered to the same effect as lihat of the district court: the costs of the district court and of this court on claimants' appeal to be paid by the claimants, and the costs of libelants' appeal to be paid by libelants.
THE NEW ORLEANS.l OTERI 1).
THE NEW ORLEANS.l
(Oi'1'cuie Oourl, E. D. Louisiana.
February 25, 1885.1
1.
SALVAGEl SERVICE.
When a vessel at sea answers signals of distress from a steam-ship whose machinery has been disabled, and goes to her assistance, and supplies provisions, and takes an officer of the steam-ship, by request, to a place where he can summon assistance for the steam-ship, such services are salvage services. SAME-DISTRIBUTION OF AWARD.
2.
Where valuable services were rendered by the ship and her machinery, the master and crew doing only their ordinary duty, for which they were paid by the owners, on principles of salvage the men must receive a share of the reward. No amount of reward to owners and machinery will so stimulate and encourage efforts to save life and property in peril on the high seas, as will moderate rewards to masters and crews who are on hand to control the ship and machinery, and are the effective agents to set the "machinery in motion.
S.
SAME-SALVING l:lHIP UNDER CHARTBR.
In this case, where a salvage award has been made to the owners of a ship and her crew, and where it was shown that at the time the salvage services were rendered the salving ship was under charter and in possession of the charterer, the courL first allowed to the charterers, out of the salva!e aware, their actual outlay in rendering the services,-that is, for the hire of the ship, and for the pay-roll, and fuel consumed during the delay,-anddivided the balance of the award equally between the charterer, the owner of the ship, and the crew. 'I'M Swab. 189, and The Waterloo, 2 Dod. 433, distinguished.
lReporteclll, Joseph P. Hornor, Esq.· of the New Orleana bar.
FEDERAL 4.. COSTS.,
claimants have made no tender, pala no !noney Into court, brought in no parties, and have done nothing to facilitate the cause save to admit a contract made with a salving vessel, the COsls should be borne by them.
Admiralty Appeal. W. S.13enedict, for libelants, appell<1nts. E. H".Huntington and Horace L. Dufour, for claimants, appellees. Richard De Gray, for owners of the Raleigh. PARDEE, J. The facts appear to be substantially as follows: On the ninth of May, 1884, while the steam-ship New Orleans was in the Gulf of Mexico, on a voyage from New York to New Orleans, at a point about 125 miles south-east from the South Pass of the Mississippi river, her cylinder f;lxploded, killing one of her enginecrs, Injll1'ing others of her crew, and rendering her motive power useless. Thereupon signals of distress for assistance were given from the New Orleans, which were first discovered from the bark Ophir, then on a voyage from Aspinwall to Pascagoula, about 12 o'clock 01) the night of May 9th, and in obedience thereto said bark tacked and beat towarqs said was a fiash-light,-and at daybreak the New Or. leans was discovered with her signal of distress fiying. As the Ophir approached, the master of the New Orleans put off fronl her in a ship's boat, in company with his first officer and a boat's crew, and came on board of the Ophir, reported the above accident to the New Orleans, asked for provisions, and that the Ophir would convey his first officer to the mouth of the Mississippi river, or to some steam-vessel going to the mouth of the Mississippi river, to summon assistance to the New Orleans. Provisions were furnished by the master of the Ophir to the New Orleans to the value of $60, and the Ophir cleared away for the mouth of the Mississippi in the forenoon of that day, with the first officer of the New Orleans on hoard. The wind at the time was light, and while thus proceeding, on the following morning, a steam-ship hove in sight, and then signals of distress were made on the Ophir to attract the steamer's attention, in obedience t() WhICh the steamer, which proved to be the Raleigh, bound to Honduras, came under the bark's stern and was informed of the condition of the New Orleans, and her latitude and longitude, and was requesteu to go to her assistance, which she did, while the bark continued her course to the South Pass until the night of the twelfth of May, when the first otlicer of the New Or'lean.s was tqmsferred to the steam pilot-boat Underwriter, bound to South Pass, and the Ophir proceeded on her way to Pascagoula. In obedience to the above information and request, the Raleigh changed her course and ran to the point indicated, where she arrived in the course of fonr hours, and was boarded by the master from the New Orleans, who requested the master of the Raleigh to tow him to South Pass, but as they could not agree on terms, the l{,aleigh, after supplying the New Orleans with more proYisions. proceeded on her voyage. When the Raleigh had arrived at a point 10 miles distant from the New Orleans, she was again signaled from the. New Orleans to go back to her, which she did. Then a contract was signed by the master of the Raleigh, on behalf of her owners and the master of the New Orleans, for the tOWing of the latter by the former, using the latter's. hawser, to safe anchorage at South Pass bar, for the sum of $5,000, whic\l was safely done; and the Raleigh, after coming inside the Pass aud receiving coal, again went to sea and proceeded on her voyage to Belize, Honduras.
rhe services so rendered by the Ophir and the Raleigh to the New Orleans were salvage services. See The Ha:dwig, 24 Eng. Law & Eq. 582; The Susan, 1 Spr.499; The J arnes T. Abbott, 2 Spr. 101; l'he
Maw
ORLEA.NS.
911
Willia'lns, Brown, Adm. 208; The Bolivar, 1 Woods, 897; The Sarah, 3 Prob. Div. 39; The Sarago8sa, 1 Ben. 553; The Charles Adolphe Swab. 153; The Reward, 1 W. Rob. 174. The amount' to be allowed for these salvage services, if presented as a new question to the court, might require an examination into the value of the property salved, and a consideration of the circumstances under which the services were rendered; but the parties have p'ractically settled the matter themselves. The main service was that of the Raleigh, and as to that the respective masters agreed and contracted before the services were rendered, and tbe amount of $5,000, so fixed, is not attacked by either party as too much or too little, or as oppressive or inequitable. The master of the Ophir, before suit, offered to settle for $250. The service of the Ophir was incidental, and should be fixed with reference to the main amount allowed. In view of the litigation and the intervention of the 'Crew, $500 seems the proper compensation. Having determined that the services were salvage services, and the amount to be awarded therefor, the next question is one of distribution. As to the sum awarded the Ophir there is no trouble,-onehalf should go to the owners, and the other half to the master and crew, according to the pay-roll. The distribution of the sum awarded the Raleigh presents more difficulty. The valuable services were rendered by the ship and her machinery, the master and crew doing only their ordinl.J,ry duty, for which they were paid by the owners, and yet on principles of salvage the men must receive a share of the reward. No amount of reward to owners and machinery will so stimulate and encourage efforts to save life and property in peril on the high seas as will moderate rewards to masters and crews who are on hand to control the ship and machinery, and are the effective agents to set the machinery in motion. The next question is, who is entitled to the owner's s.hare of the Raleigh's salvage? or, in other words, who were the owners of the Raleigh at the time the services were rendered? The libelant Oteri was tbe charterer of the bare ship and machinery, etc., by the day, manning, equipping, and navigating her at his own expense, carrying his own cargoes,-the owner pro hac vice. At the same time, the owners' property was used to some extent and was risked in the rendition of services to the New Orleans. If it were a mere question of compensation for work and labor, the owners would be entitled to nothing; but I think the case is very different, so far as it is a question of reward for the use and risk of property, and encouragement for the rendition of salvage services. Why reward a temporary owner and leave out the real owner? Neither one bad really anything to say as to whether the services should or not be rendered. The case is one to be settled on principle, for we have no authorities at hand, if such cases have been adjudged in the admiralty courts. The Aljen, Swab. 189, and The Waterloo, 2 Dod. 433, are not in
919
BEPOBTE&
point; for, while they hold in terms that charterers are not en'iitled to salvage earned, they refer to charterers who are not in possession of and navigating the ship,-were freighters under charter-party. See Cohen, Adm. 60-63. In this case I do not understand that the contract of charter provides, either by inclusive terms or exclusive terms, as to which party to it shall be entitled to salvage money earned by the ship during the running of the charter. It seem to me that the proper rule in a case like the pre Bent is to first allow to the charterers out of the salvage award their actual outlay in rendering the services,-that is, for the hire of the ship, and for the pay-roll, and fuel consumed during the delay,-and then to divide the balance as a reward; and such rule will be followed in this case, so that from the $5,000 awarded the Raleigh the libelant Oteri shall first be paid bis actual expense in rendering the services, and the balance will be equally divided,-one.third to the charterer, one-third to the owner, and one.third to the master and crew; the last according to the payroll. For the purpose of distribution a reference will be ordered. , As to the costs of the case I think it clear that they should be borne by the claimants. They made no tender; they paid no money into court; they brought in no parties; they have done nothing to facilitate the cause, save to admit the contract with the Raleigh, which the court has found did not cover all the salvage service rendered; in short, they have not brought themselves within the rules applied in salvage cases in order to save themselves from costs. See Cohen, 260,261,288,289; Jones, Salvo 204. The costs of the reference in this court for apportionment among the libelants will be taxed to the owners and charterers of the Raleigh.
THE THOMAS CARROLL.
(District Court, N. D. New York. June 5,1885.) 1. Where a collision occurs, on a bright starlight night, between two boats going in opposite directions at a speed of less than three miles an hour, upon the sluggish waters of a canal, it cannot be attributed to inevitahle accident, and especially so, when they see each other in ample time to execute all neeessary maneuvers. Where a boat is in an unusual position, where she has no right to be, she must take adequate and necessary means to inform others of the fact. In order to hold the injured vessel responsible, she must not only be at fault, but the fault must in some way contribute to produce the accident. CANAL-INEVITABLE
2, SAM(J;-DUTY OF BOAT IN UNUSUAL POSITION.
a.
Benjami.n H. Williams, for libelant. George Clinton, for respondents.
918
COXE, J. On the fifth of August, 1883, the steam canal-boat Venus, with her consort Leto, was proceeding westwardly along the Erie canal. Both boats were loaded with cement. The Leto was pushed ahead, of the Venus, being fastened to her by stiff iron couplings. At midnight, and when about a half of a mile west of May's point, in the county of Seneca, a collision occurred between the Leto and the steam canal-boat Thomas Carroll. It is to recover for the injuries thus sustained by the Venus and Leto that this action is brought. The Carroll was loaded with grain, and was destined for New York. She was without a consort. At the point in question the canal is about 68 feet wide, the navigable channel being about 38 feet wide. The berme bank is on the north, or right-hand side, the tow path on the south, or left-hand side, going east. The three boats were of about equal dimensions, being 96 feet in length and 17t feet beam. Where a collision occurs, on a bright starlight night, between two boats, going in opposite directions, at a speed of less than three miles an hour, upon the sluggish waters of the canal, it cannot be attributed to inevitable accident, and especially so, when they see each other in ample time to execute all necessary maneuvers. Merely to state the facts is to answer the proposition in the negative. As there was no vis major, it necessarily follows that either the Venus and her consort, or the Carroll, or both, were at fault. A careful examination of the evidence has failed to disclose any dereliction of duty on the part of the Venus and Leto which can fairly be said to have contributed, in any appreciable degree, to the accident. For it is quite evident that the injured vessels would not be inculpated, even though it were determined that all the accusations now brought against them, both in equipment and management, were fully supported by the proofs. It is not easy to trace any connection between the collision and the absence of inboard screens for the lights, the use of the stiff coupling, or the failure to have a lookout on the bow of the Leto. Had the screens been present and the coupling absent, had the captain stood at the exact point where, it is now asserted, he should have been, the consequences would have been the same. Nothing that the Venus and Leta reasonably could be expected to do to avert the injury was omitted. The crew exhibited as much skill and prudence as could be expected in the circumstances. Had they executed some of the maneuvers and followed some of the theories advanced upon the trial, not only would the disaster, in all probability, have been more severe, but the libelant would, in part at least, have been held responsible for it. '1.' he Venus and Leto were where they had a right to be, and where it was their duty to be. Immediately upon discovering the proximity of the Carroll, and informing her of their presence, they followed the ancient law of the sea, and put their helm a-port. They kept as close to the berme bank as possible, and were there when the blow was given. v.23F,no.16-58 -
914
fEDERAi. REPORTER.
Their engine was. reversed, and . speed slackened as soon as danger was apparent. . They were hardly moving at the time of the collision. Every means of safety had been exhausted, and they were practically helpless. The situation in this respect was not unlike that of the injured steamer in The Pennsylvania, 24 How. 307, 312: Could their master have foreseen the erratic and unexpected course of the Carroll, he might have taken many additional precautions, but this he could not know. It was to him an ordinary case of two steam-boats meeting on a clear night. He assumed, and he had a right to assume, that if he kept his own side all would be well. He was not called upon to predict that the coming boat would take his water and attempt to pass him on the starboard side. From what has been said already, it follows, as an almost inevitable presumption, that the Carroll was at fault. Her negligence is, however, not left to presumpt.ion; it is clearly proved. Even upon her own theory she cannot es.cape. The evidence, viewing it in the best possible light for the respondents, is that the Carroll saw the Venus and Leto far enough ahead to do all that was necessary to prevent accident. She was then 19t feet from the berme bank and 300 or 400 feet from the Leto. If, in traversing this space, she had swung 18 feet to the right, she would have passed in safety. She gave one whistle,-"Go to the right,"which was answered by the same signal from the Venus. The libelant's evidence regarding the signals is stoutly disputed, but it is thought that the preponderance of proof is against the respondents on this point. Moreover, the direct testimony is supported by strong presumptions. It is hardly within the realm of probability that two hoats, meeting at night upon a narrow water-way, wonld give contrary signals, one saying, "Go to the right;" the other replying, "We cannot; we are going to the left, and you must go to the left also;" and that there the interchange of signals should cease. All agree that but one signal was given from each boat; the respondents, however, contend that the Carroll answered the one blast of the Venus by giving two. If this were true, would not so experienced a navigator of the canals as the master of the Venus have taken some notice of it, and if he failed to do so, would not common prudence have dictated to the Carroll the necessity of repeating her own signal in order that the Venus might surely understand it'? Is it likely that both boats would run into inevitable danger, each knowing that the other was turning toward the berme bank, and make no further attempt to extricate themselves '? If the Carroll, as her master says, was aground, or dragging on the bottom of the canal, 19 or 20 feet from the berme bank, unable to get off, she should not have contented hel'self with one signal or two signals. 8he should have informed the Venus and Leto beyond the reach of .donbt that she lay directly in their path; the path, which, in ordinary circumstances, it was their duty to take. But she did nothing of the kind. The libelant insists that the Carroll at first
lUlU V. I. & V. FLORIO S. S. CO.
915
turned to the right and kept upon the tow-path side until so near the Venus and Leta, that any change of the latter's course was impossible, when she suddenly took a sheer and struck the Leta, lying helpless on the berme bank. If this be the correct version she was guilty of a grave fault. If, on the contrary, as the respondents assert, she was aground on the berme bank, directly in the path of the Venns and Leta, and took no measures, except the one signal, to inform them of her extraordinary situation, she was equally culpable. Where a boat is in an unusual position, where she ought not to be, where she has no right to be, she must take adequate and necessary means to inform others of the fact. Upon either theory, then, the Carroll was negligent, and the .agreement of her master, immediately after the accident, when it was thollght the injury was slight, to pay the damages incurred, is very suggestive as to what his opinion, at that time, was. It follows that there must he a decree for the libelant, with costs, and a. reference to compute the damages.
MINA
v.1. & V.
FLORIO
S. S. Co. May 25, 1885.)
(Di8trict Court, D. New Jersey.
ADMmALTY PRACTICE-MISNOMER-WAIVER-ApPEARANCE AND ANSWER.
After a reapondent has appeared generally, and answered upon the merits, it is too late to move for a dismissal because Qf a misnomer in the libel and monition. DAMAGE TO CARGO OF PRUNES.
2. CARRIERS OF GOODS BY VESSEL-BILL OF LADING-TRANSHIPMENT-DELAY-
On the twenty-third, thirtieth, and thirty-first of March, 1881, L. shipped on board reapondent's three steamers 600 casks of prunes at Trieste. to be delivered in New York, unto order, and took therefor bills of lading, in which respondent stipulated that said steamers were bound for New York, and reserved the right to tranship any part of said cargo to another steamer. Two of the steamers proceeded to Palermo, and discharged the prunes, where they remained for 55 days, when they were shipped on another of resp"ndellt's steamers, brought to New York, and delivered in a damaged condition, owing to the delay that ensued in their transhipment, and the want of proper care in their handling and storage at Palermo. Held, that respondent was not to tranship in other vepsels thflll his own, under the bill of lading, but that he WfiS obliged to use diligence and care that adequate facilities were furnished to comply with its agreement to tranship without unreasonable delay, and that be was liable for the damage cansed by his to provide for the more di· rect transportation of the prunes to New York after their arrival at Palermo.
Libel in rem. Jas. K. ina, Wing If: Shoudy, for libelants. L01'enzo Ullo, for respondents. NIXON, J. The libel in this case is filed against a foreign company, claiming damages for negligence and want of care in the tranship-