THE SILICA
V.
THE LORD WARDEN.
845
timony in other respects. The explanation of the collision given by the libelant's witnesses is that the steamer was started before the bowline was cast off, and that her head was accordingly jerked towards the libelant's vessel. It is denied by the steamer's witnesses that she had started before the line was cast off. The sloop, howe\ter, was not wrongfully where she was, and, as she was struck by a vessel in motion, the burden of proof is upon the latter to show herself without fault. Considering all the evidence, I do not think that this burden is sustained, and the City of Augusta must therefore beheld liable. The sloop, however,was 26 years old. She has not been repaired since the accident. She was used more or less for a considerable time without repair after the accident, and was subsequently sold for $300, under attachment. These circumstances are so peculiar, suspicion of the infirmity of the vessel is so strong, and the testimony of the libelant himself was accompanied by so singular mistakes, that I do not feel warranted in giving him the benefit of full repair, as of a vessel probably able; to withstand ordinary contacts.. If the vessel was weak, as well as old,asI very strongly sus'pect, I think the captain should have got ont of the ;way·;· according to the previous notice given him, or have taken care that the person who suggested to hiro. to remain was either the superintendent or some i proper representative of the steamer, neither of which is proved. Under the circumstances, therefore, I allow him half of hit; damages, as against the City of Augusta, and estimate this half at $300, for which sum the libelant may take a decree; or, if desired, a referenc,e may be t..'tken by either party to compute the damages, at the risk of costs to the party demanding it, if a more favorable award is not given.
THE
LORD 17.
WARDEN and another. 1
THE LoRD WARDEN
THE SILIOA and another.
(Oircuit Oourt, E. D. PennsylvanUi. March 1,1887.) COT,LISION-DAMAGES-DEMURRAGE.
In cases of collision, the rate of demurrage provided for in the charter-party of the injured vessel will, in all save exceptional cases, be adhered, t,o in the determination of the damage suffered by the delay of the injured vessel while undergoing repairs.
In Admiralty. Sur exceptions to commissioner's report. The bark Silica sailed from London for Philadelphia, on August 11, on the seventh of October. There 1884, and arrived at the latter she was chartered for a voyage from Philadelphia to Fiume. She proceeded on her voyage in the tow of the tug Protector, and, owing to the lReported by C. Berkeley Taylor. Esq.tof the Philadelphia bar.
846
FEDERAL REPORTER.
negligent handling of the tug, and the faulty position of the Lord Warden, collided with the latter. The commissioner appointed to ascertain the damage suffered by the Sllica allowed demurrage at the rate of $92 a day, the amount stipulated. in the Silica's charter-party, for time lost while undergoing repairs. To this. counsel for the Protector excepted, on the groqnd that the Silica was not entitled to more than the actual damage suffered; that the voyage must be considered as begun when the bark left London; and that the earnings of the bark must be apportioned over all the time that intervened between her departure from London and her arrival at Fiume, in order to ascertain the Pf!//" diem. loss. Oharles Gibbons, Jr., for the Silica. H. R. Edmunda. for the Lord Warden. Drivf!//" &- Ooulston, for the Protector. BUTLER, J. The exceptions must be dismissed. The rule adopted by the commissioner for ascertaining damages from delay is, under the oircumstances, the proper one. Under ordinary circumstances, it is always so. In exceptional cases, such as The Potomac, 105 U. S. 630, the rule invoked by the exceptor is applicable. Here the otheris safer; and it gives the libelant less than he' would take under rule invoked 'againsthini;unless, indeed, we adopt the exceptor's method of ascertaining profits; that is, by including the profitless passage from London, in the voyage, though the vessel was not chartered until she came to Philadelphia. This we could' not do.
THE WISCONSIN. t
BEEBE
v.
THE WISCONSIN.
:(1)i8trict Oowrt, B. D.Ne1/) York. May 6, 1887.)
1.
BALVAGE-SJIlRVIOEs-l'ILOT AS SALVOR-AWARD.
2: B
Libelant, 8 pilot, was on board t,he steamship W., but had not taken charge, when the v.essel ran ashore. Thereafter he rendered assistance by suggestions as to getting h,er off, and b, taking charge of her when she was floated in a rudderless'conditlon.He mcurred no risk; and was not called upon for any extraordinary exertion. Held,that he should recover $1.000·salvage.
.
A pilot may be a salvor, although aboard the vessel,ftbe has not yet assumed the relation of pilot to her. SAME-NEW JERSEY
PILOT MAY BE SALVOR.
'. The'statute of New Jersey (section 16 of the issue of 1846) relates to extraordinary pilotage services, A case of pilotage services. necessarily presupaid to an poses the vessel capable of being navigated. So a pilot, unnavigable vessel, is not bound by the above statute, and his services may be not those of a pilot, but of a salvor.
PILOTAGE SERVICES.
!
Reported by Edward G. ;Benedict, Esq., oltha New York bar.
