LEVECK
V.
A CARGO OF WOODEN POSTS.
917
All that remains will be simply the computation of the interest upon the sum stated, which maybe done by the clerk when the decree is entered.
LEVECK v. A CARGO OF WOODEN POSTS. 1 (DiBtrict CO'Urt, E. D. New York. April 14, 1888.) DEMURRAGE-BURDEN OF PROOF.
On the evidence, held, that the delay claimed by the vessel against the cargoowner Lad not been made out, and the libel should be dismissed.
In Admiralty. The canal-boat Martha E. Loomis brought a cargo of posts from East Haddam, Conn., to New York, and the libel claimed that the vessel was delayed after urrival iIi New York by the fault of the consignees. It also claimed damage to the boat from floating ice through the fault of the shipper, which latter claim the answer averred had been settled. The claimant asserted that the boat had been sent at once to a proper dock,and that the delay arose from the slowness and absences of the master, and from the fact that he negligently discharged a part of the <Jargo at the wrong place. Peter S. Carter, for libelant. Oharles Murray, for claimant. BENEDICT, J. The settlement made between Goodrich and the master of the vessel left no claim enforceable except the claim for delay in the unloading of the vessel, which occurred after that settlement. In regard to the claim of a lien upon the cargo for the delay which occurred in unloading the posts, both at Schuyler's dock and at Wallabout, the evidence fails to prove that the delay was caused by fault on the part of the {)wner of the posts, or of the persons to whom the posts had been sold. The burden is upon the libelant to prove a fault causing the delay. 'This has not been done. Libel dismissed. lRepoJ;1i8d by Edward G. Benedict, Esq., of the New York bar.
918
FEDERAL REPORTER.
DE LELJ,El1. THE
(Dilltriqt Court, 8. D. New York. April 80, 1888.)
1.
SHIPPING-LIABILITY FOR TORT-STEAMERS RAISING SWELLS.
In plying about rivers and harbors, steamers raising heavy swells mllst give heed to the presence of other boats following their legitimate business. and slow or stop to avoid damaging the'latter by such swells. '
2.
SAME-NoTICE OF DEFECT.
Masters of old and weak boats are bound to take corresponding precautions to give notice to others of the need of special caution in dealing with them. "
8.
SAME-lhMAGES.
It, appeared that ,libelant's canal-boat was injured through being thrown agah:ist a dock by the swells from the yacht A.· but it also appeared that the canal-boat was old and weak, and was hence damaged more than a boat in ordinary condition would have been. Held, that libelant should recover ha.'f his damages only. · ,
In Admiralty.
Libel for damages.
Hyland for libelant., , , Vande1poel, Green, Owmingand Goodwin, for claimant. BROWN, J. The libel was filed for damages caused to the libelant's' canal-boat Wm. E. Cleary, while s4e was discharging brick at the City Yonkers, through the suction l!oud, swell Gaused by,t)le steam-yacht' Atalanta in passing down the North river. The evidence shows that the yacht was going at the rate of a litUe less 14 knots; that the tide was flood, and within about an hour of high waterj that her waves are about the same as those of the largest steamers that go up the North river; that she pasaed about half a mile from' ,the shore; that she was in the habit of slowing when she received any signal {rotqthe dock indicating that a ves,sel w.asthere unloadingj that. :upon the m,orning in question she did not slow, no signals being heard; that the libelant's lines were loose,the rebound of the waves llfter the finst suction thrust the canal-boat with such force against the dock as to snap two of her deck and her keelson. " 'l'hereis sljght testimony thata signal whistle was sounded from the doc)!, but as jtwae not heRrel, I am not satisfied while unloading, was in plain' on this point. But the libelant's sight of the Atalanta as she came down. The libelant's boat was some 14 years old, and was no doubtin a fElebIe condition. It was nEl¥ertheless useful to him, and he had the right to make use of her, subject to the ordinary risks of navigation. The heavy swells from steamers that make waves from one to three feet high are not, however, such ordinary incidents of navigation as boats are bound to take the risk of, whether large or small, new or old. On the contrary, it has been the settled law since the use of steamers in navigation, that, in plying about rivers and harbors where their swell and suction are likely to produce injury to other craft following their legitimate business, stAamers must give heed to their presence, and by slowing, or stopping the engine temporarily, as the case lReported by Edward G. Benedict, Esq., of the New York bar.