·.166
·
. and .inWptipn thlri; the NiobeW1>uld swing in the berth. ThenfoshOut and SCrE!8ilD to "move the boa.t 'I· was not enough (not to drop the anchor) to. relie\Te, them from the consequences of their recklessness. If the Pleasant.Day crew had not at fault, I would give a much larger sum as damages, but theY were also negligent. They left the sloop without any one in charge, which is contrary to the harbor regulations. The1;lndertaking of the fisherman to watch her was a mere nudum pactum, and carried with it no legal obligation. She was not lying where boats of her class properly belonged; blit this does not give any right to a vessel entitled to that berth to crush into her, and sink her, when that result could be easily avoided. The Canima, 17 Fed. Rep. 271; The Southern Belle, 18 How. 584. What is the value of the .Pleasant Day is a question difficult of determination.· :ger disjecta membm were rescued from beneath the wave, but the Niobe had left her with a shattered constitution. Opinions as to her value vary pretty much anywhere from five hundred to fifty dollars, and one witness thought shewQuld be dear at any price. The truth is, the Pleasant Day was not a very valuable craft. She had. been moored for quite a while in the Bilbo canal, an artery which performs the same functions for the city of Savannah that the Cloaca Maxima did for ancient Rome, and Wll,S as a consequence not so pleasant as her name imported. All the sails and rigging Were saved. On the whole I award $150 to Wilson, the owner ofthe Pleasant Day, and decree that he pay half the costa.
THE CONTINENTAL. 1 CoNTINENTAL
INs. Co.
V. THE CONTINENTAL.
(District Oourt, E. D. New York. May 27, 1887.) CoLLIBION-STEAM.BoAT AND Tow-NIGHT-AT'l'EMPT TO OVERTAKE AND PAM.
The steam-boat C., in attempting to pass on the port side of a tow which she had overtaken, at night, in the channel between Blackwell's and Long Island, ran into a canal-boat on that side ·of the tow. The tug had previously. by whistles, assented to thesteam-boat's passing her. Held, that as it was the steam-boat's duty to have kept out of the way, and as the evidence indicated that the canal-boat had a proper light, and that the tug did not crowd over to the Blackwell's island shore. the steam-boat was in fault for the collision.
Carpenter & Mosher, for libelant. .Alfred C. Chapin, for claimant. BENEDICT; J. This action is to recover of the steam-boa.t Continental the damages caused by a· collision between that vessel and the canal-boat
In Admiralty.
lReported by Edward G. Benedict, Esq., of the New York bar.
THE CHEROKEE.
167
Sarah C. Brown, while being towed alongside the tug Dentz, and while passing Blackwell's island on the night of July 12, 188B. The night and tow were ahead of the was clear, and the tide was flood. The . Continental, as the came up to Blackwell's island and on a course to pass between the island and the Long Island shore. While passing the tow on the port side, the canal-boat on the port side of the tow was struck by the Continental. Being the following vessel, and at the time passing the tow abead, the burden is on the Continental to show that the collision was not caused by fault on her part. The defense is set up in the answer that the failure of the canal-boat to display a light left the pilot of the Continental in ignorance of the presence of a canal-boat on the port side of the tug, and so caused the collision. The weight of the evidence is that the canal-boat had a light, of the captain, pilot, and quartermaster of the Contiand nental is that the collision was not caused by the absence of a light on the canal-boat. The answer also mentions a failure to port on the part of the tow, and giving an assenting reply to the signal of the Continental, as acts of negligence on the. part of the tow. These defenses are also disproved by the witnesses from the Continental. contended for on the trial is a different and new defense, The not alluded to in the answer, namely, that the tug crowded over to Blackwell's island, and thereby caused the collision. Considering the statement of the answer, this defense does not demand much attention.. It is not credible that the tug, after receiving and replying to the signal of the Continental, indicating 'an intention on the part of the Continental to pass the tow on the port side, would then, without reason, bear to port. Plainly, no such action on the part of the tug was thought of when the answer was made, and the testimony to that effect given at the trial fails to satisfy me that such was the fact. The decree must be for the libelant, with a reference to ascertain the amount.
THE CHEROKEE.! THE MONARCH. YOUNG'll. THE CHEROKEE
and Cargo.
(DiBtrict Oourt, South Oarolina. June 6, 1887.) 1. BAi.VAGE-FoRFEITURE FOR :MiSCONDUCT.
To cause a forfeiture of salvage, there must be evidence of misconduct on the . p anof the salvors. The thoughts or desires of salvors are immaterial, unless their conduct be intluencedthereby. ThOtllth, ill view of the value of the services of the salvors upon final hearing the boila originally demanded appear grossly excessive, the court will consider
2.
BAME,-BO]{D-EXCESSIVE DEMAND.
lReported by Theodore M. Etting, Esq., of the Philadelphia bar.
