FEDERAL REPORTER.
undertaken to set forth specificltlly his separate grounds of claim, he must ',enumerate them all,or else confine his proof to those which he has declared upon. 4. As to packages of prunes damaged by dust from being stowed in the coal-bunkers, it might be claimed that damages would be recoverable under the averment of bad stowage. Here, however, the proof is insufficient. Only apart of the whole cargo of prunes, (consigned to others as well as to Jibelant) was in the bunkers, and there is no evidence to show that libelants' casks were the ones stowed there. The decree of the district court is 'affirmed.
SCHWERIN 'V. NORTH
PAC. C. R. Co.
(District Oourt, No D. OalijOfflia. October 22,1888.) SRIPPmG-CARRJAGE OF PASSENGERS-NUMBER-PENALTY-FERRy·BoAT.
Rev. St. U. S. §(:l4464-4466, respecting the number of passengers that may lawfully be carried by a pltssenger steamer. have no application to a ferry-boat, though temporarily employed as an excursion boat.
At Law. On demurrer to complaint. Action by H. W. Schwerin against the North Pacific Coast Railroad Company to recover the penalty prescribed by section 4465, Rev. St. U. S.· for carrying on its steamer passe'ngers in excess of the number stated in the certificate of inspection. Milton E. Babb, for complainant. Page &: Eells, for defendant. I HOFFMAN, J; The complaint in this case is filed by an informer seeking to recover certain penalties imposed by sections4464, 4465, Rev. St. U. S., for violations of their provisions. The violations complained of are alleged to have been committed by the steamer Tamalpais. a regularly licensed ferry-boat, plying between this port and Sausalito. She was, however, frequently employed as an" excursion boat," and on such occasions procured from the inspectors a permit specifying the number of passengers she was authorized to carry, the number and kind of lite-saving apparatus, etc., to be carried, and the route and distance for such excursions. These permits were issued, it is presumed, under the supposed authority of section 4466. It is contended that on one of these excursions she carried more p/lssengers than was allowed by the permit. Sections 4464 and 4465 are as follow!!: "Section 4464. The inspectors shall state in every certificate of inspection granted to steamers carrying passengers, other than ferry-boats, the number of passengers of each class that any sllch steamer has accommodations for, and can carry with prudence and safety. "Sec. 4465. It shall not be lawful to take on board of any steamer a greater number of passenger" than is stated in the certificate of inspection;
SCHWERIN
v.
NOItTH PAC. C. R. CO.
711
and for every violation of this provision the master or owner shall be liable; to any person suing for the same, to forfeit the amount of the passage money and ten dollars for each passenger beyond the number allowed." By section 4469 this penalty is declared to be a lien upon the vessel. It is evident that these sections have no application to ferry-boats, when employed as such; and, in fact, the certificate issuod to a boat of that class contains no statement of the number of passengers she is entitled to carry. But it is contended that the steamer Tamalpais, by forsaking her ferry-route, and engaging in the carrying of passengers" 011 excursions," ceased pro hac vice to be a ferry-boat, and became subject to the provisions of law intended to secure the safety of passengers taken on board "steamers carrying passengers." That they ought to be subjected to those provisions cannot be doubted. But there is much difficulty in applying the provisions of the sections I have quoted to ferry-boats which, on occasions more or less rare, are used in carrying passengers on excursions, but which ordinarily and habitually are employed only as ferryboats. The provisions with regard to passenger steamers engaging in excursions are contained in section 4466, and are as follows: "If any passenger steamer engaKes in excursions, the inspectors shall issue· to such steamer a special permit, in writing, for the occasion in which shall be stated the additional number of passengers that may be carried, alldthe lIU rober and kind of life-savi ng appliances that shall be provided for the safety of such additional passengers; and they shall also, in their discretion llmit the route and distance for such excursions." It will be noted that this section does not (except by implication) forbid the carrying of passengers on excursions in excess of the number allowed by the certificate of inspection plu8 the number of additional pussengers allowed by the "special permit in writing." Nor does the seetion impose, as does the preceding section, any penalty or forfeiture for a violation of its provisions. Section 4469 declares toe penalties im.., posed by section 4465 (which forbids the carrying of a greater number of passengers than is stated in the certificate of inspection) to be alien on the vessel, but it makes no mention of any penalties or liabilities incurred by carr)'ing a greater number of additional passengers than that allowed in the special permit for excursions. Sections 4464, 4465, and 4466, by their terms, or by necessary construction, apply exclusively to "steamers carrying passengers," or passenger steamers" other than ferryboats;" and the certificates of inspection issued to these vessels are required to state the number of passengers such steamer can safely carry. Section 4465 declares the penalty incurred by taking on board more passengers than is stated in the certificates of inspection. When engaged in excursions, the "passengers steamers" may obtain a special permitfor the excursion, in which shall be stated the additional number of passengers that may be carried on the excursion, etc. Additional to what? Plainly additional to, or in excess of, the number stated in the certificate of inspection. But the certificates of inspection issued to ferry-boats do not, and are not required to, state any number of passengers they are entitled to carry. How, then, if engaged in excursions, can they be said
712
/
to have carried any greater number of passengers than is stated in their certificates of inspection, or, if a permit has been obtained, any number of passengers greater than the number mentioned in the permit as additional to the number stated in the certificate of inspection? It is plain, I think, that these sections cannot be applied to ferry-boats carrying on excursions a greater number of passengers than that authorized by their permits. Alaw authorizing permits to be issued to ferry-boats, and perhaps tug-boats and freight-boats, engaged on excursions, specifying the number of passengers they are entitled carry, ::md imposing penalties for its violation, might be desirable and salutary But I am unable to see how the section of the Revised Statutes under which this action is brought can be made to reach the case. It is said that a ferry-boat, licensed only f)S such, when engaged on excursions, becomes pro hac vice a passenger boat. If this he so, the ferry-boat so engaged may possibly be considered as employed without having a license in force. Section 4324 provides that "no license granted to any vessel shall be considered in force * * for carrying on any other business or employment than that for which she is specially licensed.". But this point it is unnecessary to consider, as this suit is not brought for any such violation oflaw, but for the penalty imposed by section 4465 of the Revised Statutes. The demurrer is sustained.
THE STEAM-8HIP SAMANA
THE ERIN.
(Di8trict Gourt, E. D. New York. October 15, 1888.)
8ALvAGlll- DISABLED AWARD.
STEAMER -
DANGEROUS CURRENT -
TowAGlll- VALUES-
The steam-ship E., when about 50 miles north of the east end of the island of Cuba, lost her propeller key, and was thus deprived of motive power. The weather was fine, and the vessel was in the track of ships, but there was not wind enough to enable her. by her sails, to stem a current which there sets towards the rocky coast at the rate of one to two and a half knots an hour. A signal of distress, set by the E., was observed by the steam-ship S., which altered her course, and bore down to the E., and the masters of the two vessels entered into an agreement in writing that the E. should be towed into port and the compensation left to tbe agents of the vessels, either at New York or Boston. The S. thereupon put out a hawser to the E., and with some difficulty towed her safely to her destination, a distance of 240 miles. The S. was not damaged in any way by the towage, but was delayed one day in her arrival at her destination. Her value was $50,000. The E., with her stores was worth $26,000. The claimants of the E. offered $1,000 as compensation for the service, claiming that it was simple towage. Held, that the service was a salvage service, and $4,000 a proper salvage award.
In Admiralty. Libel for salvage. Wheeler, CorMs & Godkin, for libelant. Whitehead, Parker & Dexter, for claimants. : IReported by Edward G. Benedict, Esq., of the New York bal".
