HILLER·' 'V.'
LEVY
et at. February 18;1890.)
(01.rcu(t Court, S. D. New York.
PATENTS 'PORINVENTIONS--NoVELTIES-Bows FOR LADIES' WEAR.
The novelty of a" bow for-ladies' wear, "oonsisting in the interposition of a transverse reinforcing strip of annealed wire between the shield and the body of the bow, for the· purpose of pJ'O\'iding an adjustable, non-elastio backing fora bOW, whioh will maintain the shape into whioh it is bent, and to whioh the bow itself will conform, is not an inventiOn, wire tape baving previously been inserted in ladies' bows, and a similar boW; having 'been for two years in pUblio use in slippers.
In Equity. Bill by Hi1leragainst Levy and others to prevent infringement of patent. Arthur v. Brie8en, for. plaintiff. F. H. Betta, for defendants.
J. The of the /Chow for ladies' wear" which is thlt of the patent in 8uitconsists in the interposition of a transverse 'reinfol'cnng strip of annealed ,wire b.etween the shield, and the body ·of the bow, the object being to provide an adjustable, non-elastic backing for a bow, which will rnnintain the shl1pe into which it is bent. and to the bow itself will conform. 'The'specification admits that bows haVing an elastic shield were old; it is proved thatit was old, and \VeIl known, to'iilsert wire tape i'n' bows for ladies' wear, in order that the bow might be bent, and be retained in any shape given to the wire tape. The patentee has done nothing more than to transfer the location of the wire from inside the bow to a place between the bow and the shield. also show quite conclusively the pubThis is not inY,ention. The lic, prior use of the bow of'the patent in the slippers of Ordway &Cla:rk, in 1881, tn0re than two years prior to the date of the alleged invehtion of the , The bill is dismissed, with costs. ' WALLACE, 8U bject
O'NEIL et 'j
at. v. I .
& W. R. PACkET Co. et at.
(C4ircwU .Court, W. D. Tennes8ee. February 10, 1890.)
I.
A steam"boat while mpored at a wharf, with no steam up, "nd engaged in. receiving freight;, brlletied a supply of coal from coal dealers; 'l'l'Je'dealers sent their tug with a coa!rnet" latter was lashed to the steamer's side, for the purpose of enablingijie coal,tO be carried on board the boat. It was the duty of the dealers to , 'furnish the linesnecesiia.ryfor the lashing; but] not havIng enough, the boat allowed them to use,olle Aftertbe fiat was rastened to. the boat, the tug left it, leaVing on bilard two of the dealers' employes, whose duty it was to take care of ,the 1Iat, too ascertain and report the qUlU1tity of coal taken, and. lfanything happened
AT WlIARJl-DVTY TO PROTBCT COAL-hAT FROM DRIPT,
ll\evel'8ing811 F ed.,Rep.858.,·' :
REPORTER, vol. 41. to the fiat, or it sh.ould be In dangel', to signal the tug. It was shown to have been the general the-dealers were liable for the oare and safety of their fiats while thus engaged.' Held; that it was not the duty of the steam-boat to protect the flat from floating drift. S. SAME-RIGHT TO CUT LOOSE COAL-FLAT ToPnOTECT HERSELF.
While the flat was thus lashod to the side of the stf;lam-boat, it was struok by a large tree, which, was being CIlorried down, by the current, and a hole was made in It8 bow. The fiat began J,'apidl:1 to flll, and m a few minutes was in a sinking condition. , The dealers' emploYes had .Jeft,the flat, and gone oft to other vessels; and the boat's mate and the men emploYedJn unloading the flat were compelled to quit !lu!:rledly. The mate, flat would sink in a few minutes, and bemg that when Ikdid,110 ili would dump its load, and would come up, by the force of the current, under the,boat'8 hull ,and cause her to sink, cast it loose and allowed it to drift. It would have required some 20 minutes to have dropped the down stream, astern of the boat, even if the requisite lines had been at hand, which they were not. After the flat !was' cut loose. it rlg<htoditself, and floated down stream some 800 yards. and struok libelants' bargo, sinking it. Held, that the boat had the right to proteot herself by Qlltting the flat loose,' and, having dOne so in the exercise of her'best judgment, was,Dot'liable tolibeiants. ' ' . ' ," .
8.
SAME.
4., BAME.
The test as to whether the oourse taken by the boat's offioers was negligent or and reckless is the veril. " ' ,d);, ,', ... ' , ( ",
T,lle:,l'll,le t\}at a person: m, ay n, , " e h,iBown :lJy destroying ano,ther's" ,has "no as there wll-s n,o cl8sign to, shift to libelants', batge:, nor \vas It oontemplatEld'llhaHhe'1lat would'keep'alloat after belDg out loose; lSi '8Mom;.,.,lJURDEN oF'PRoo)';, 'J'
' ", 'I · ',' 1 l" -, .· ."
,4s. the flat was not the bOat's the rule to her that the , ,i'" "
IS
when moored Ol'adrift, it was error to oIl the vessel adrift to excuse herself. , .. . " , . ' ·
.
38
In
Libel for 358. .. . TurleY & 'Wright, for libelants. M. B.7Tez#allt, fpr respondents'.
..
,'Onappeat'from :: ,,:. ';
court
'ill
. J., ,The material facts; of tbiscase, estaolished by the proof be,fore the district court, and\ly the additional evidence taken since 1888, the steamer the appeal to this cour,t, are the follqwing: On Chickasaw, a common carrier of freight and passengers, owned by the Memphis & White River Packet Company, was moored at its regular landing place at the port of Memphis, on the outside of the wharf-boat, where the water was from 60 to 70 feet in depth at the time. The river was high, and there was a of drift floating. The current was from seven to eight miles per hour, and its course was from the Arkansas river "0 which it struck shore with most force about or below 13eale street, near which point O'Neil & Co. had theiJ: regular coal-barges. The Chickasaw was en,'gaged in receiving freight preparatory to starting out on one of her usual triPs. She,bad no steam uIl, in the was ibstlfficient. the boat, andl:w/l.s used inJ:1andlihg heavy freight. lj.l1ofwhich were in She was ful)yequipped and supplied with lIse in securing hel' moorings RQd:oriistenings one., lIer master, E.C. Postal, WIl.l!I tempol'll.rilyabiSent, and the steamer was in charge of her mate, who, a., first-ClasS officer, of large experience, good character, and sound judgment. The master having previously notified an agent or employe of Brown & Jones; cOlil dealers
THE CHICKASAW.
629
at Memphis, that the Chickasaw would need a supply of coal, a tug belonging to said coal dealers, and in charge of a master employed by them, towed one of said Brown & Jones' coal-flats along-side of the Chickasaw, and made it secure to the steam·boat's out or larboard side. The coalflat was lashed to the Chickasaw, by the agents of Brown & Jones, for the purpose of enabling the needed supply of coal to be taken therefrom on board the steamer. The owners of the coal-flat, or their agent, the master of the tug, in accordance with the established usage and custom of said port, were required to furnish ilie lines necessary to properly secure,the flat. The master of the tug, on this occasion, used two short lines' in' lashing the coal-flat to the steamer; and the officer of the latter allowed or permitted him to use in addition its extra line, which was not needed in securing its own moorings. This extra line of the Chickasaw rtii:facrol:ls, and secured on the upper larboard sideof, the coal-fiat. Having thus securedthecoal-ftat along-side of the Chickasaw, whlch was theusrial manner of furnishing coal to stea.m-boats by all coal dealers in the river,whether such steam"boatswere stationary atthe wharf or in' motion, the tttg, then left· the coal-flat in charge of two employes·i:Jfeaid Brown & Jones, called "coal checkers," whose duty it was to look aftetand take caretifsaid flat, and to see and report to theh principalswhat quantity of coal was taken by the steamers. It WlIS also their duty., in case anything happened to the coal-flat, or it should be in dan£ ger, to signal for the tug. ' ,As stated by one of the witnesses, there was between the:steam-boats and cOnI dealers an understood law........a g'eneral understanding-that the <loal company were liable for the care and safety of their :coal-flats while thpy were lying along-siele of steam-boats not under way, and having nosteam up. This general understanding was neither varied nor modified on this oceasion by any agreement or understilnding' between the officers of the Chickasaw and. the agents of ,the dea:lers furnishing the coal..fiat and cmu. The Chickasaw required 'cor desired only a portion of the coal on said flat; and, while the desired supply was being carried from' the coal-flat aboard the steamer by an indepen:del1t contractor or iltevedore ahd his men, a large tree came down' with the current, its projecting limbs being in front, and He :\oo( upstream, and struck theeoal:.flat at or near its upper outside or larboard corner, below the water-line, tearing or crushing a hole about1S inches square in its larboard 'bow, through which the flat began rapidly toftlf with water, andin;a few minutes was in a sinking and dangerous condition. Thetwo employes of Brown ,& Jones left in charge of the flat had gone off to other vessels, or points oli the wharf, when the coal-flat Was struck. The mate of the Chickasaw, stltnding upon the wharf-boat, attending to his duties, saw the floating tree about the time it struck the coaJ-flat,andimmediatelymade an attempt to reach the and do som&thing toavert the threatened disaster; but the flat appeared' to be srnkingso rapidly, towards t?e starboard bow, and to go down "headfirst" 111 a few mmutes, the mate and men engaged 1ll .carrying the coal aboard the steamer wetecompelled,to quit it hurriedly· .Believing that the flat would sink in a few minutes, the mate became
630,
FEDERA;1':'
·· ,vol,
41.
dump her 9-£ coal,and tbeq, byJqe strength 'of fuecurreot, com,e or against the to,crush,or break in hull, , and CRQ5e her to sink. Thecoalupo,u,tbeflat was p1ac'ildiA upon a ,#88 raised' cOljlsiderably, bottom o(the and )oadeq, the ptobabilitieswere in sinking, as, she be its load, ofeoal, then p()p 'IlP, unqer the wlth such force as a pole In her this imminent. panger,th,e ,mate of the and,allowed, herto drift ,did who saw her conl!ition, that she would 'sink, in aU the ,Thelines wpicn the coal.fla,t to would have tended greatly to, the,result whicl;1 the mate feared, if the fiat had been allowed of the Chi,ckaSa.w, ,in WllY sheseem,ed to be going to dOWA" ,w.o111d from: 15 to 20 minutes to have dropped tAe, of the Chickasaw, if therequisjte lines had beeri:1\t,pand, and readily accessible,,: ;the maw ,l;1l/odoo line at, commanl:!,4pl;tlj.ple for aqd, from ,«;l'P9pitiqn' tp.!l it did there ,waS time, fhe to movement. The witqesf¥js, w4p saw the actual situation asjt o.ccutie<l, did that it wguld have beensllfe to have at;<3.:ropthe down, ev:enif the requisite a"pplianceshad, beElO, The did as quickly w:as, "Upon 'beiqg,r,eleused, r,om' fasteJ:}ings, she partially the water became more nniformly distributed through her a.lthoughstill in, a sinking,oondition, ,she, ,floated d()wn· stream;an4"ab()lf:t 300yards ,below the GllickasllW she, struck a coalbarge Co,., wJ1ich was sunk, and proved a coal.barge:of O'Neil was by ,the coal- , flat of Brpwn, 4: ,Jones stood out in the with another vening the landing; and, in ()f danger from floatingdrift.",ap ,old gunwale, ,!JOIpe 20 inches wide, projl3ctillg about, and 20fi? inoh,es ,nnder had extended <Uagonally, aQross its front., ,gqpwaleproved, to be a, wholly; ftln<}erto ward. ,off, :th,e,' drifting. ,sinking, coal-flat of, BrQwn & JOljles" seems to hllov,estruck the coal-barge lower down, than ,this :fender extena.ed. "N,either the uor the coa]·' flat of BrolVtl' &: put out any felld-er pr boqlll. ito, \\Ya.rd (>tI drift when; said CO/l.1 the.Chickasaw, ., ,notcustomaliYi; to do thus being,furnished with.coal req\lired ;on1y an take aboard such supply of coal as they needed. era! witn,ese,"e,i t ' that',l,',:Q., ,thl;l sit-qation occ,UPie<:1,', byth,eOh,iC,kASlloW' the ,w(luld have requirelia (ender or boom twoQrj;three feet tel> have, the coal-flat, a,gainst ,from,dr,ift,./l.pdthat 3 w<;iuld have and interfered with. yessel!! reac1:;ling the wharf at oq1ear , ,'r, .
n
,or
or
r: 'J ["
":''1'IiE CHICKASAW."
'631
O!Neil &;, Co. filed· their llibeJ in, pel'sonam agail1st Brown & .Jones, the JM:emphis &:,White River Packet Company,and,E. C. Postal, master of .the Chicka8aw, allegiilg.;RS thei'r grounds of recovery that, as there was ,a ·high stage of water, with driftwood and trees floating in the and a heavy' current running and driving such 'drift ,in that directioo;the agents'land employes of Brown &: Jones,aftel' fastening their flat to the 'iChicbsawwith ropes; negligently and carelessly left the samest:nn6ol'ed that the' I08sof libelants' coal-barge was entirely due and owing t6the cul-. pablenegligence and carelessness of said Brown &: Jones in dot leaving and putting a proper watch and guard upon their said and preventing the same from being cut away; and from the negligence and careles.stless of the mate and crew of the Chickasaw inouttingthe.fastenings which secured. said: flat tb said steamer,andin sending the same adrift;:and that there was noneoessityfor said' mate and crew ofthe Chickasaw to cut loose from said coal-flat, and cast itdtlrift,inorder toprl:lserve and said steam-b<>a't from danger, etc. ·Brown &: J ones'ihterposed ' The other respol1d'exceptions:inthe nature 'of a demurrer to ents'answered, denying, the/negligence charged against them, setting up the CircumstanceSRs above detailed; under which the fustenings-of the coal..fiatwere cut loose by the mate·ofthe Chickasaw,al1dclaimil1g that · there was urgent necessity, fOf the act, in the; imminent danger which ,threatened 'the .Chickasaw from' the sinking flat; eta. Libelants dismissed ,their libel as to Brown & Jones. TheMseppO()eeded againsHhe ·packet comPany and Postal J and, rendered a decreeaga.instthem for the value oflibelants'coal-batge, and coal lost, amounting, with interest, to the sum of &2,2'6@)15J;;Omceiving them·selves aggrieved by said decree, respondentsSEiekby tbeirappeal to have ,thesame'reversed.! ' , Inthreorderly consideration of l'espondtmts' (appellants') liability for ·the; loSs of libelants' coal"barge, under the circumstances stated, it is :.8. matter of the first importance to determine what were the:legal,rela.tl.ons between the Chickasaw and the coal-flat of Brown & Jones-; while ,the latter was lashed to the former for thepnrposeoffurnishing the de· sired' 'supply Of coal to the' steamer. The leatilecl district judge found ·from the evidence introduced' before the distritt :court that said coal-flat was left sblely to the care oithe Chickasaw,without any one aboard to look nfterit,except that two coal checkerswetifori-it to keep allcount' of thecoa'l but had no other duty in relation to the flat· whatever; that, ·the .Chidkasaw having assented to the being placed or moored' 'along-side for the. purpose of procuring therefrom her'needed supply of Cba1, said fiat; 'for,;thetime at leMt, became as much a part and parcel'ofherself as ifshe'had borne it on her deck; that; :under the prinCiple 4lpplicableto. tugs and tow, the Chickasaw was in charge of · as. the commanding vessel; that she could have limited her lia''bUity'py a: contract wit4 Bro:wn & Jones that they shoulq ret8.ip comcontrol fiah and be her navigatlon and while delivering coal; that, having done tbat, the
682 ChioklJS&\V ·'f.I.6$umed entire control, and, under the ciroumstances, en. tirereppnsibiUty for .the flat's ma.nagement and navigation. Tho fact .tbat the .twoQoal checkers, employes of Brown & Jones,: were .on the flat, -was treated by the learned district judge as immaterial. From the relations thus' found to bave existed between the steamer and tbe coal.flat tbe diatriot court reached. the conclusions tbatthe Chickasaw was in fault, and guilty of gross negligence; in failing to guard: and protect tbe flat against drift; that ordinary prudence, tested by thereasonablerequirement of caution, required the Chickasaw to provide against dangers to the co$J-flat from flQating drift; that she could not neglect that duty so as to imperil the propertyofotbers; and that no usage and.custom oftheport to,thecontrar.Y,tboughknown to and practiced by the libelants themselves, $S theproQfestablished,could relieve her from responaibility Jor auch faiJ.ure.. It· .wasfurther beld by the district courtthat "it was negligence on Pf!'rt .oithe Chickasaw not to hold the flat withalin-e,. aftw it. was by-the floating. tree, to keep it from driftingagajnsthelpless .Iyingin the current _below,.and the excuse that no lines Were at h""nd only shows that no adequate provis.1.on againstsuch dangera as to occur was made;" that thi.awafilJnot reasOI}able, the Iluthorities, particulady under the rule :applied iI},'fhe.Cktrita 23 Wall. 1-15, where a tug whose l;>Usiness,it·was to give reliaf'to. on fire voluntarily undertook to tow from her: dock a burning' ferry:-boat, with a hempen hawser, wbich was burned, so that the .ff;lrry-boat got loose, and drifted against, ,and set (ir:e:w, a schooner at anchor. It was held that the tug was negligent to tow of the burning ferry-boat with onlyamaniUa hawser;. that, inundartaking such a service, she was bound to have chain hawsers or chain attachments. on board, for the obvious. if!'l81l'0D:, ,Which orWlllt:fY, flxperienceand prudence womd bave suggestClJ, that,jthe part of the m.aniUa hawser made fast to tbe burning boat could be reliad on to;fes;istthe effects of thl:l fire, but was liable to. be burned, for thia negligenoo, the tug was held respom1ible for the damages to the schooner while the ferry-boat was exempted from liabilitY'.. The principle ,of this Olarita Case was thought by the district eO\!,fttoimpose upon the:Chickasaw the duty of having aboard, and proper appliances, such as would have enabled,.&er mate and crew to have dropped the sinking coal-flat down of the was negligence not to have an.ticipated the danger, and n;lade slloh. previous prepal'atiop,s,to .avoid,the sa;m6 as to. hav:e met it without impluiling others. Continuing with the assumption that the coal-flat. in charge, and under the control flnd management and QftheChickasaw, it is further ,said: '·'If steam-bQlilts coal themselves from: !lats in a crowded harbor, they must use all reasonable precaution against the breaking of the flats: and I do notthink tbeycan.llnder any cut themJoose to save themselves, ,without undertaking to answer all damages that shall come :by the act to ot}1eril who are in no way connectedwith'them,or interested in the danger theyseek to avert."
633
After a careful examination of the record, I am unable to concur with the district judge in respect to the relations which he found to exist between the Chickasaw and the coal-flat. and from which the conclusion was reached that it was the duty of the former to protect the latter against danger from floating drift, and that the steamer's failure/to provide such protection was negligence whichrendered her liable to Ii belants. . The actual and legal relationship hetween the two boats is made much clearer hy the additional proof taken on hehalf of appellants since the appeal, than was shown by the evidence introduced before the dig.. trictcourt. This additional proof rendered it perfectly clear that the Chickasaw neither expressly nor impliedly assumed any custody or control over the coal-fiat; neither was she in any way responsible for its management and navigation.. On the contrary, the evidence established that the coal-fiat was wholly and exclusively under the control, management,and navigation of its owners or their agents; that, at the time of mooring to the Chickasaw, it was left in charge of two employes of Brown & Jones, With the duty of looking after and taking care ofthe flat. Instructions to that effect were given them by the master of the tug which brought the fiat along-side of, and fastened it to, the steamer. ThiEl tug;: also belonging to Brown & .Jones, furnished, and was expected to furnish, th,e motive power for the fiat's navigation; and it was accordingly made a. part ofthe duty of the two employes left in charge of the fiat, in the event of danger thereto, to signal for the tug, which was in rnoreor less eaElyreach. There was no obligation on the part of the Chickasaw to furnish any motive power for the movement of the flat. She was: herself ina helpless condition,-moored to the wharf, with no steam up. She undertook to perform no service for the benefit of the fiat, had no authority' to· displace the two employes left in charge of it, and substitute other watchmen; neither could she control their movements and aeti()ns.Tbe two boats were wholly independent of each other. The sole duty which' the Chickasaw owed to the owners of the flat was that of reasonable dispatch in taking from the latter her needed supply of coal. The twohoats, separately owned, with different and distinct crews, employedand paid hy the respective owners, with no right or authority on the part 10reither to displace such crews upon the vessel of the other,and with no agreement or undertaking hetween them for the performance of anyservideby the one for the other, cannot properly be said to occupy a dependent relation, such as will impose upon the one duty of protecting the other against outside danger, by reason of mere juxtaposition for the purpose of transferring cargo or a supply of fuel from oneto the other.· It is shown by the proof that the duty retlted upon the coal-flats, in such cases, to furnish their own fastenings, and to properly moor their own craft, and that steam-boats never undertook to provide a supply of lines for their use. But, in the present case, the tug, needing· another fastening in order to securely moor the flat, was allowed to use the Chickasaw's ej(tra line, not needed in securing her own moorings. This loan of her line by the Chickasaw cannot he 'construed as the assertion
FEDERA;,. RE;P;OR'f,ER,
vol. 41.
fiat. .lauch t:lot the intentiotkOf ,the, parties. py,Capt. ,Postal that, the O'\':ne1." of the tpthe. for the purpose of furJilishing them: c9al1jakes the, chance of, ,flatl;Jeing,sunj.\. or injured by the perils of He there was "a general understanp.ing betlYeen. nstbatthe is liable for and safety of their flats while they of our boats,swam-boats not under way, and having. no up." Under t1;lis,.general understanding. between llnc,t, coal .and in v.iew, of ,the fact that, in,conformity therewith j em,.pl9Jesof the ()wners \Vere actually of thefiat,.aB wall as to see left in, charge, to look after what ,gu@tity of coal was takentb:erefrom by. the and also to foJ," 1;lelp, when needed, it cannot be propthe Chickasaw any duty orobligaiion to Brow,n erly ,tq gtl;ard ,an!l.protect.t1leil,", said coal-flat againl'lt, !langel's from If tbecoal-fiat had sunJr when struck by the. floating tree, aIJd w,hAAe p;l:oored to the latter have bE1en liable to for the because pf her failure to pr()vide protection /rQe rule and of liability.laid down by thCil Jwlge. seel1lsfp. g9, to that e:;:tent, but surely the. Chickasaw 'lQu:¥i, npt 1,)a responsiblllto BroWl;ll$z; Jones in ,the case :supposed. I ,no ll,lltho,rity which; 'Y9uld',support such a pr:oposition, 'an,d no or principle .to rest s\lch ,l;L.lE1Sponsibility. B.rQ'Wn,&:Jones the. right to their tug (tpe motive power, for: the propt;lJ: i ma.nagement aJld navigation of for their own and pro6tleave the, flat m,oored to the C.h,iqkasllw, in ,o.hll,rge of two employes, who shortly afterwards quit their.post to lookafter other busilless of their principl\ls, and, in the contract, cast upon the the. <luty, and burabeence of of guarding andprotectillglJaid:fl.a,t against known da,ngers and perils of t4e river? ,1: kp9W of no such a , No case cited, ,by counsel pr.the judge ,goes;; to that extent. It will Mrdlyj be claimed thl;\ttheChi,ckasaw, uD;der the, circumstances Clf helj;eitu!'\tion,owE:ldtothe to libelants a higher measure of ;dl.lty lnprQvidlng ,protE:lCtion to lPe wal-flat against danger pfthe river ';It.hap., 1l116:owIl4 & owners of the,flat. Such a ,claim nO sound land finds DO support ill the v.ould, , of ,this case, any duty ,Or legal the ·coal-fl$ti Iilgainst such pE>rilSllS it. fromi.flo!\tingdr;ifh;that.duty the generlllowI!-ers oft-he fll\t j whQse cparge"control, an<J ml!DA,gementJit remaineckalld; Wl-llSpons.ibil,ity, arises )fmlXl the fail\tre,to perform 8uo.h rl¥luirements. Of 1llokf1 proper preyent.lll:1ph danger. to Brown: & .Tonea"an!l:p.oqothe cannot pe.rheld chargeable :w:itp,negligeqee,fpr n,ot ,.provi4illg",Jepde1.' Of boom,or othe.rproteclJiop. against float\ng:driftstriking the which occupied,theposition And independent Wholly. in chafge. of its ow»ers,@<!
¢i
:it
'overwbiOhtheClifokasltwpossessed no authority, oontrol. or manage-ment, and in respect to which she had undertaken to perfol'm no service whatever; It remains to be determined whether the Chiokl\Saw is liable for cutting loose the flat. 'l'hat'question involves the consideration of two leadingpropositions: Jilirst, was the act of the mate in cutting the' flat's fastenings; under the unlawful or wrongful? and, seCondly, iflawful, was it negligently, :rashly, or carelessly done, without a proper regard for the rights of others? After' being stru¢k by the floating tree, the flat, in the judgment of experienced officers and river men, was sinking rapidly,......toppling over on the larboard bow, going down "head iirst,"--and to all appearances would sink in three or four minutes. Ih sinking, it would, in all probability, turn over, dump its load Of coal, and then, by force of the current, depth of water, and influence of its moorings, it would pop up under, and break a hole in, the hull ·of the Chickallll.W, and thus cause her to sink. To have dropped the flat dewn and astern of the Chickasaw. if that could have been done at all, would have required 15 or 20 minutes, with all necessary lines and appliances at hand.,' Neither the Chickasaw nor the flat had the requisite lines to have accomplished this maneuver; nor was the Chickasaw under any obligation' to,have provided such lines as a matter of precaution. In this situation ;ofaffairs, the flat having, by a peril of the river against which the steamer was under no duty to guard or protect it, become not only helpless, with her sole motive power withdrawn, but placed in.a position which threatened the Chickasaw with impending and serious oollision, was the ,Chickasaw bound, either to its owners or to the public, to allow the fastenings to stand, and take the consequences? Or had she the right to ward off from herself this threatened coHision from an jndependent craft? I am clearly of the opinion that, in view of her relations to and connection with the coal-flat, as above stated, the Chickasaw had the right to protect itself against such, a threatened collision by cutting the flat's moorings, or by any other prudent and reasonable method open to her adoption inan emergency. It could not be doubted for a moment that, if the coal-flat had not intervened, the Chickasll.w could lawfully have warded off the floating tree, though in so doing it might have received such a direction as by means of the cUrrentwould have carried it against, and sunk, libelants' coal-barge. In that case. the Chickasaw could not have been made' liable for the loss. Suppose the coal-flat, before its moorings wereconlpleted, had from any cause commenced sinking.· Could not the Chickasaw have shoved it off· without incurring liabilities' to others for the injUry it might· ocCasion to others while drifting? There can hardlY' be any question as to her right so to do. Row can the Chickasaw's assent or permission forthe flat to secure itself by attaching temporary fastenings to her side change the steamer's. right to protect herself against danger from the flat? .The two craft owed no duties or obligations to each other, as vessels) either before or after being so moored together, except that'neither sho111doccasion injury to the other wrongfully or negligently. In the oj The SfM-1n6r New
FEDER4J.' REPORTER,
Philadelphia,'l Black, 62, in tow was so carelesld1 navigated that the barge was in danger of striking a sloop lying fast at anchor. In order to prevent the threatened collision, the a fender which crushed into and so injured the barge that sloop she soon afterfllled and sunk. it was held that the act of the sloop in putting out the fender for the purpose of warding off the collision was no fault on, the part of the sloop. The fender used for the purpose of warding ott'the impending blow was not, of the best and safest character that could have been used. There isnothinf..{ in the situation occupied by the -Chickasaw, or in her relation to the independent coal-flat, which should, deprive her of the like right to ward off impending collision from ,the flat. Brown & Jones, having retained ,entire control of their flat, with the genE!rfl,l understanding that they were/liable for its care and safety while lying along-side of the steamer moored to the wharf, and with no steam \lP, and having voluntarily withdrawn their tug from the flat, which they leave in charge of two employes, ,who quit their post, looking after other business ,oftheir principals, could not have held the Chickasaw liable for cutting the flat loose, under the facts and circumstances stated, if it had proved a total loss. The Chickasaw, having the lawful right, as against its owners, to defend and protect herself against the impending collision from the apparently sinking flat, her mate, in the emergency of the danger, and in exercise of his best judgment as to the method of defense or protection ,to be employed, might lawfully, as against all parties, cut the lines which secured the flat to the steamer. It is alleged in the libel, ,and claimed in argument, that the action of the mate was, not, necessary for the preservation and protection of the Chickasaw, and it is said that he "substituted a fancied for a real necessity." Ip ,The Amethyst, 2 Ware, 20, it is very properly said that the prudence' and propriety of most actions are not to be judged by the result, but by the circumstances under which they act. If they act with reasonab1'e pl'udencae',at;ld good judgment in a situation calling for and requ;iring prompt a,oti:on, they are not to' be made responsible be,. cause the result from CRu,aes that could not be foreseen nor reasonably anticipated, has; disappointed their expectations. The' fact that the flat kept afloat long, enough to cause the disaster to libelants' barge undoubtedly tends to show that the mate was in efror in thinking it would sink in a few minutes after being cut adrift, but the propriety of his actions should not, be determined by the result. The standard by which 1o-test the questiop as to whether the course .taken by the mate was negligent or unauth6rized and reckless is that of goodseamanship under the impending peril. The owner ofa vessel does of the master, "nor that he shall do in an not engage for the emergency precisely what, after the event, others may think would have . been best." Lawrencev. Minturn, 17How. 100; The Star of Hope, 9 Wall. 230. Applying this rule to'the conduct of the Chickasaw's mate, there can be little or no doubt that, from the situation and condition of the flat, he had very reasonable ground for tht" belief that .it would quickly sink, thereby greatly imperiling the steamer, and that there was con-
IfHE CHICKASAW.
687
an urgent and imperative necessity to cut it loose in order to or save the Chickasaw. In thus exercisjng a lawful right, was the mate's action so negligently, recklessly, or carelessly performed as to render the Chickasaw liable for the injuries thence resulting? The mate supposed, and had. every reason to believe, that the flat would sink by the time she cleared the Chickasaw. If he knew, or had good reason to believe, that in cutting the fiat adrift he was thereby l'utting the libelant's coal-barge in peril: sume foundation would be given to the claim that he acted negligently or recklessly. The Chickasaw is not properly to be put into the .position of taking the alternative of paying the damages to libelant's property, rather than incur a greater damage to herself unless the injury to libelants' property was the natural and probable consequence to be anticipated from cutting the fiat adrift. A person may not save his own property by destroying another's. This is undoubtedly a sound proposition. But the present case does not call for its application. There was no design or intention to shift from herself to libelants' barge the danger which threatened her from the sinking coal-fiat of Brown & Jones;' nor did she or her officers, in warding off the impending collision from the coal-fiat by cutting its fastenings, contemplate,. as the probable consequence of their act, that injury would result to libelants, or anyone else. The reasonable expectation of all who sllW the condition of the coal-flat was that it would speedily sink; that it could not keep afloat but two or three minutes, and would go down long before reaching the libelants' coal-barge. Having the lawful right to cut .loose the flat, it cannot be said that there was either negligent or reckless action towards libelants in the manner in which the right was exercised. It is not deemed necessary to go into an examination of the decisions relating to the respective rights and liabilities of tugs and tows, for the reason that no such relation existed between the Chickasaw and the coal-flat.. But, if it were conceded that there was between the two some relation analogous to that of tug and tow, it would by no means follow: that the Chickasaw would not have the right to cut the flat adrift in order to protect and preserve herself against impending perils of or other dangers, not arising from her own fault. The tug, or steamer occupying the position of a tug, is neither a common .carrier nor an insurer of the tow, and, in performing the service of transportation undertaken, is only bound to the exercise of ordinary care, prudence, and skill; and whenever, in the course of such service, the tug's own safety is endangered by perils of the sea or rivers, or from causes not due to its own fault, the tug may, as a matter of selfpreservation,cut the tow loose without liability or responsibility for ,the consequent loss of either the tow or its cargo. The J. P. Donald-gon, 19 Fed. Rep. 264, is an illustration of the application of this right on .the part of the propelling vessel. There it was held by the learned district judge before whom the case was heard that the tug was not of negligenqe i.n sacrificing its tow for its own preservation and safety. The case waaappealed to the ci;r;euit court, where it was heard by CircuitJusticeMATTHEws, who concurred in the conclusion that the tug,
its i'6wri"{au1t;was negligence in cu:tti-QgitS tow adrift; but he' held'the tug liable towardS 'the loss on ',tlJil basis of a II.verage.' It wasri¢d, by Mr. JusticeMAT'rHEws that the geo'erilt average Cdhtribution depended of the 'patties, and did not upon an' equity arising out M He, further held this arise out ,of ,the contract average conti'i%htion waS ndt', applicable 'between principle strangers, ina common adventure, and placed under tM 'chnrge' ofa: 'master, with authority to act in emergeiicies as the agent 'or aU' concerned.' The: Chickasaw and her 'officers no such positioIftowai'dseitherthe'coaHla:t of Brown & J ones or t:he: c6al;,barge 'of'libclants. So that the present 'case could general average contribution not fall within<the enlargea announced by Mr. Justice' MATt'itEws' in The J. P. DOnaldson or Sontmii.th v. 671 l the correctness of which the writer persl>nally knows that, Mr. Justice MATTH1tWS subsequently doubted.:' Ilio not understand·that tIle doctrineof'excusable error in extremis islinijted, the' district its application, to cases where the cdntributirig: tiiismanagement ofthe party injured caused orobcasioned the extrElIl)JW.The doctrine is of wider applica· tion than that; as shown in the (lase of The J. P. [)owildson, and others .. '. ' that might be cited. . The learnell district judgecorreotlystated that "the burden ofprdof b! on the vessel: adrift to excuse herself,and prima facie she is negligent unless. her Q'Wne can show que diligence when she collides with one Itt ao(}h6ri" citing The LouiRiana, 3 Wall. 164; TIte .[eremiq,'h GoflJreYi 17 Fed.' Rep. 738, and other authorities.. Then, treating thedriftink flat as' the Chickasaw's vessel; the conclusion is teached tnatshe has not answ&i'e'd o'rmet this burden of proof, or relieved herself of the imputatio'of negligence arising from the fiat's be. ing adrift; It has been shOwn tl1at the flat was not the Chickasaw's vessel either. while moored or' ad'rift, so that the rule involved did not apply to the Chickasaw, but to Brown & Jones, the general owners thy drifting flat. If they badbee1iproceeded against, the burden of proof would have devolved to rebut the primafacie liability arising from their vessel being 1ifloat. . They could have met that prima facie liability by' showing that, the Ohickasaw" either wrongfully, Or negligently, and fault on their part, cut the flat But suppose, in attetnptihg to place the blame . on the as!lW; the latter had shown, .as she has done in this case, that her ac· tionin cutting the flat adrift 'was lawful; tha:t in so doing she was gt'liltyof no wrong Dr neglect towards Brown& Jones. CQuid it be Noperlysaid thatthey had shifted t,he prima fadie responsibility for the 'disaster from themselves to the Chickasaw? It 'would be difficult to . : .. . 'in'ltintainsucb,a position. I alp unable to see anyreasoIi or ground updn'whicb the personal decree against'Capt.E. C. PO!ltal,. the master of the Chickasaw, can libel states that at the time of the transaction he was
to
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!''1'BE'ATLANTA.·
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GSD
temporarily absent from ,the Chickasaw, and that the mate, James Rice. was temporarily. in charge. 'It' is neither claimed nor; shown that the master's absence was unauthorized, wrongful, or· negligent. It is 110t legedorshown that he had any conne,ction whatever with the negligent 8,cts charged against the steamer, or her owners. He, does not appear to have given the mate any commands or direction in reference to the flat. The mate was not aeting,as his agent in what he did, but as the agent and employe of the owner of the Chickasaw; and how theabsent master can be held responsible personally, under the circumstances, for the action of the mate in command, I cannot see. But, aside from this, when it is established that the action of the mate was lawful, and not performed in a negligent and. reckless marmer" that will relieve the master 8S well as the Chickasaw. In the opinion of this court, no fault or negligence' on, the part of appellants in. not protecting the flat against floating drift, in cutting .the flat loose' under' the circunistances, is established. It follows that the decree ofthe district court is erroneous, and should be reversed, which is accordingly so ordered and adjudged, and that the libel be and is hereby dismissed at libelants' cost.
THE A'rLANTA. 1 THE BYRON M.
JiI'.SS et at v. THE ATLANTA. ALDRICH v. THE BYRON'M. (DiItJrlct Court, E. D. New York.
March 19,1890.)
CoLLISION-BBTWEBN BAILING VBSSBLS-Il'lEVITABLB AOCIDBNT-SNOW-STOltH.
Where twosaUing v:essels came in ccllision outside of New York harbor, and the evidence indicated that the vessel bound by rule to avoid the other was under shortened sail, and that a blinding snow-storm prevailed at the time which rendered it impossible for either vessel to be seen by the other in tIme to avoid the accident, it was heW, that the collision was an inevitable occurrenoe, for which neither vessel was responsible to the other.
In Admiralty. Cross-actions for damages by collision. Owen, Gray & Sturges, for the Atlanta. Wing, Shoudy & Putnam, for the Byron M. BENEDICT, J. These actions arose out of a collision that occurred between the brigantine Atlanta and the schooner Byron M., on March 30, 1 Reported
by Edward G. Benedict, Esq., of the New York bar.