506
FEDERAl,
I
vol. 42.
on the for 19 days, at the rate allowed by the· commis. sioner, whioh agrees with my own computations. The other items areall.owed as reported, with interest.
WILSON
et al.
t1. CITY OF CHICAGO
et oZ·.
(D£strlct OouTt, N. D. nUnoi& Maroh 17,1890.)
1 TQ1FAQB-LuBILITY OJ' TuG rOB NBGLIGBNOB. . Libelants' vessel, with a beavy cargo, was heinl': towed by delendant towing company's tug-boat tbrough a draw-bridKe aoross a navigable river. The draw was .sO obstruoted by vesseltbat ln, order .to pass it was necessary to take towtbrougli at a ,The pier of the bridge wano constructed that the abutment, instead of slopiilg'gradually from the bottom up, rose in a series of Itone 'steps, thecotners of ,w!licbwerecODcealed by thl! water. Piles coming above the surface of the water had been driven' around this abutment to prevent passing veBBels from strilting, but bad jus," been removed by defendant contractors for the . purpose of building another !:lrldge,across the river, under a contract with defendant city. The tug took the veBBel in tow at such speed that it lost control 01 bel'. 'and she was injured by striking the abutment. Beld, that the tug company was liable for. sue!;l injuties, since. they were ca.used by tbe. negligence of tq.e men in . charge of itl! tug. .'. . S; 'NAnGAllLB WATERS-BRIDGB CONTRAOTORS-NBGLIGENOB. The bridge contractors, baving 'taken up tbe piles wh.ioh would bave proteoted .the were als\) liable,wbetherthey knew the mode in wbich tbe abutment was coustruotedor not, since bythetr contract witbthe city they agreed to be responsible for any damages the city mil1:ht have to pay in consequence (0: their neglect to protect the publio against acofilents, and tbus placed themselves in the same position as was occupied by tbe oity, whioh was ohargeable with notice of the construotionof the abutment. '
In Admiralty. Libel for damages. H. D. Goulder and George W. MC11'gan, for libel!lnt. Bell/Ulyler kKremer, for Vessel Owners'.Towing.Company. BaU k, Oakley, for Fitzsimmons & Connell Company. ,.
J. This suit is brought by the owners of the steam-ship Wallula, and the underwriters Upon her cargo,to recover for damages su\,tained by said steam-ship and her cargo from a collision with the south abutment of the Wells Street bridge, in the Chicago river, on the 9th of April, 1888. The original libel made the city of Chicago, the North Chicago Street RailroadAJompany, the Fitzsimmons & Connell Company, and the Vessel Owners' Towing Company, respondents, charging them all with having contributed to the darnage sustained by the libelant: but the suit has sin.ce been dismissed as against the North Chicago· Street Railroad Company. and was brought ,to hearing only upon pleadings and proofs as against the remaining respondents. The proof shows that the steam-ship Wallula, with about 66.000 bushels of oats on board; left the. St. Paul elevator,; near the junction of the two branches of the Chicago, rjv:er, soon after dinner-time on the afternoon of the 9th of April; to. proceed down the river to the Illinois Central Railroad slips, where she was to take on the balance of hercargo at BLODGETT,
WILSON ti. CITY OF CHICAGO.'
507
the Central' elevator. She was in tow of the tugs Carpenter and Van Schaick, belonging to and managed by the Vessel Owners' Company, was not. using her own propelling power, and had her rudder lashed amid-ships; the tug Carpenter towing the steamer, and the Van Schaick being fast to her astern, for the purpose of aiding in maneuvring and handling her during the trip. She was drawing about 12! feet of water \ astern, and about 10 feet forwa.rd. The Fitzsimmons & Connell Company were at the time engaged in removing the old south abutment, prepa.ratoi'y' to the construction of the new bridge which the North Chicago Street Railroad Company had, in consideration of certain franchises granted it by the city, agreed to construct across the Chicago river at Wells street. The north draw of the bridge was obstructed by vesE1els and scows, which lay either within the draw, or so close to it as to make it impracticable to attempt to take the Wallula through it, and just to the west of the'entrance of the south draw of the bridge. the course of the river being nearly east and west at that point, a steamer, called by some of the witnesses the "Palmer," and by others the "Coffinberry," lay aground in such a position that it was necessary to take the Wallula around the,north side of the vessel, which lay aground, and which made it necessary that the Wallula should enter the draw at a pretty sharp angle, her bow pointing directly toward the south a.butment of the old bridge. As the vessel moved forward towards the abutment, and it was seen that she was in danger of striking it, the Carpenter, being the leading tug, made an effort to swing her more to port, so as to prevent her from striking her bow upon the abutment, but, as some of the witnesses say, the steamer seemed to take a sheer, and the efforts of the tug were unavailing to change her course, until she collided with the abutment, striking the bluff of her bow on a projecting corner of the abutment, which, as it was afterwards discovered, broke a hole into the bluff of her bow about five feet below the surface of the water, and damaged her cargo,' and required the steamer to go into dry-dock to repair the breach j the injury to the hull also requiring the removal of the portion of her cargo which became wet from water entering the hole in the bow. The proof also shows that, in constructing this south abutment for the old bridge, its base had been made much broader than the portion which stood above the water, and instead of drawing the face of the abutment in from the bottom by a regular-slope to the top, so as to give an inclined batter-face, the retraction or narrowing from the base had beeu by a series of steps, like stairs, under the water, leaving the angles or corners of these steps concealed from observation; and along the face of the abutment, close to its hase, parallel with the general course of the stream, there had been driven a row of piling, reaching' above the water, and standing in such a manner as to act as fenders to protect the passing vessels from colliding with the abutment, or with these steps or projections below the water. Some of the witnesses seem to think these piles were part "f an old coffer-dam, built at the time the a.butment was put in; but I think it immaterial whether they were first used as part of a. coffer-dam ot not, as all seem to agree that they acted as a protection to the
508
FEOERAL REPORTER,
abutment, and prevented vessels upon the base or corners of the abutment, which projected into the channel below ,the surface of the water. The abutment was also further protected by clumps of piles driven at the corners of it, the tops bound together with chains, flO as to make spring fendElrs or guards to the abutment, and to prevent vessels from colliding against the same. A day or two before the collision in question, the Fitzsimmons & Connell Company, in the prosecution of their work of prepari.ng to put in the substructure of the new had taken out these fenderpHes, which were arranged along the face of the abutment, and left no protection against these submerged corners of the abutment, and their men were at work, at the time the Wallula attempted to pass through iIi removing the clumps of piles at the north-west corner of the that the steamer was swinging abutment. It appears from the and progressing down the ,stream at the,time the bluff of her bow so came in contact with one of the submerged projections or steps of the abutment, and it is quite evident that she must have struck the corner of one of these steps, one of which was about five feet below the surface of the water, and received the injuries complained of by such collision. It is conceded that ,the Chicago river is a navigable stream, and that the city of Chicago has the right to construct bridges across the same, subject only to its obligation not to materially interfere with the navigation of the river. And it also appears that the Fitzsimmons & Connell Company, in. their contract for putting in the substructure of the new bridge, agreed thaUhey would effectually guard the public from liability to in consequence of their operations during the progress of the work ,of building the bridge, and agreed to be held responsible for any damages the city to pay in consequence of neglect on the part of said compll,ny to protect the public against such accidents; and said company also agreed to be held responsible for all damages the city might have to pay to private individuals or corporations in consequence ,0Uheir doingl,> or neglig¢)lcein connection with said work. It is contended ,on the part of the libelant that the city is liable for the acts,of the contractol's, in the Gonstruction of this bridge, and that, by the removal of these fender pHes, the concealed, edges and corners of the abutment below the .water line had been exposed, so that it was possible fo1" vessels to be, brought'incontact with and injured by them, and that the act of the contractor in removing these piles is the ,act of the city itself. It is also contended thatihe contractors, the Fitzsimmons & Connell Company, were guilty of nl'lgligence in the removal of and that the Vessel Owners' Tovvillg ,acting through the crews of its two tugs, was.aJSQ guilty oinegligence in carelessly towing the steamer, so as to bring her in contactw:ith the exposed cornel'S of the abutment, It is qnite aPl'arent to me, from the proof, that the injury to the about by thecpmbined effect. of the removal of the steamer fel1der plies Jrom the front of the abutment, and the manner in which the Wallula was handled by the tugain to enter the draw at suc.b and.atsuch a ,could,nlt, by the be' prevented from pollisio,Il witll the abutment. It is
v.
CITY OF CHICAGO.
509
insisted on behalf of the Vessel Owners' Towing Company that these corners and edges of the submerged steps or projections to this abutment were concealed obstacles to the navigation ofthe river, of which the towing company and its men had no knowledge or notice, and that, therefore, the towing company is not responsible for the injury; and that contention might avail if the. tugs had not so handled the steamer as to allow her to strike the obstructions which the Fitzsimmons & Connell Company had negligently uncovered. It is quite clear to me that the removalofthis row of fender piles from the front of this abutment exposed craft navigating the river to danger from these of the abutment below the water; and it is also clear to me that the steamer would not have collided with these projections if sbe had been towed straight through the draw, or if her course had been changed after she entered the draw, so as to prevent her from colliding, or, even if she had struck the abutment fairly end on, it is not probable she would have been seriously injured: but the swinging and progressing motion combined brought the bluff of her bow directly against the. corner of these steps, concealed belnw the surface of the water, in just the kind of motion which would cause the corner to do the injury complained of. The witnesses who had the best opportunity to see the affair all agree that· when the Wallula came along-side the grounded steamer above the draw she nearly stopped; that the leading tug made a very vigorous pull at her, which seemed to start her ahead quite rapidly, not following the tug, but with a sheer toward the abutment, which the tug was not able, by all its efforts, to prevent, and the collision with the abutment ensued. With the entrance to the draw obstructed by this craft, which lay just above it, it is obvious that the attempt to pass the Wallula through the draw was attended with no little difficulty, and I do not that the crews of the tugs sufficiently comprehended the peril into which. they were taking their tow, anrl proceeded as carefully as the circJ,lmstances required. The Wallula was about 190 feet long over all, and with so much of a cargo on board it required the utmost care on the part t.ugsto pass her through this devious channel without injury. It is very clear that the stern tug contributed bnt little, if any: aid in steering the Wallula, as, with the steamer aground blocking the passage, she was practically powerless to swing the stern of the WaUula to starboard, and thus help swing her bow to port. It was therefore incumbent on the leading tug to have proceeded all the at so Iowa speed as to have the steamer in full control. This she did not do, but allowed the steamer to get away from her, the result of which was the collision and the breach in the 'Wallula's bow. The negligence, therefore, which I think the proof fastens upon the tug-men was in allowing the Wallula to enter· the draw at an angle which must necessarily carry her into contact with- the abutment at such a speed as made it· impossible for the tug to control or change her direction. If the fender piles which Wid been remov.ed by. the Fitzsimmons & Connell Company a few days before had been left standing, they would unrloubtedly have prevented the steamer from striking the bluff .of her
'SlO
:ltEDERAJ, REPORTER,
bow'ripon of the abutment. Iconclude, therefore, that the the and her cargo the joint of &Oonnell Company In removIng these fender plIes, andgiying n6: notice' 'or 'warning to the of the danger which lurked heneath them; and the mismanagement of 'the steamer by the ,tugS Which brought her in contact with the of the abutment. It is urged on the part of the Fitzsimm'ons& Connell Company, that they did know of these under the water forming the base of theabubnent, and I,do not think the proof does show that they were aware Of thepeculiat mlmner in which the abutment below the surface of the water was coristructed j but, by their contract with the city, the Connell Company had placed themselves in precisely the position'the city itself occupied in reference to this obstruction ofthe river. "The city is undoubtedly chargeablewith notice of the mannerin which itconstructe,dthis abutment, and the Fit7.siDll110ns & Connell Company, 'having assumed all the risks of the city in doing this work, must be held oharg('able ,with all thekllowledge of the city as to the danger to be avoided. !fit WQuld have been negligence for the immediate agents onhe city to have removed these fender piles, and thereby exposed these projections of the abutment to contact With craft in the channel, tbep it was equlllly negligence for the Fitzsimmons & Connell Company to do so. ' , My concio,sion therefore is that the injury to the Wallula and her cargo was the result of the joint negligence of the Fitzsimmons &Connell Company and the tugs, and that the damages sustained should be divided between them, share' and share alike. A decree may therefore be entered finding that the injury to the steamer Wallula occurred through the negligence of the Fitzsimmons & Connell Company and the Vessel Owners' Towing Company, and that each of these respondents shall pay onehalf the damage. But, as I am not quite content ,with the showing which has been made in this regllrd as to the amount of these damages, the case will be referred to a commissioner to take proof and report the amourit of the damages to the vessel and cargo, for which a decree will be entered.
PINCKNEY !I. THE HUNGARIA.. (CffcuU Court, D. South. CaroUna. May 24, 1890.) ADJlIRAvrT':"XmlllL-J'URI8DIOTION.
The oircuit court ot the United States has no jurisdiction ot a libel, where, at the tilDe of the service of the warraI1-t of arre8t, the vellel wu without the limits of the di8trict. .
Appeal from district conrt. 41 Fed. Rep. 109. J·.N. Nothan8, for libelant. B"1J'<sn & Bryan, for respondent.
DBBUIBB tI. BAVEBMJilYElU! & ELDEBSUGAB REFINING CO.
511
BOND, J. ·'fbis cause coming on to be heard on the pleadings and proofs on the plea to the jurisdiction of the court, it is ordered, adjudged, and decreed that the decree of the district court be affirmed, and the libel herein dismissed, on the ground that the district court had, and thil1 (,.Qurt had, no jurisdiction of this cause, because, at the time of the service of warrant of arrest, the vessel was without the limits of the district of South Carolina, and without the territorial jurisdiction of this court. It is further ordered and decreed that respondent'sstipulation for value be canceled, and delivered up to respondent'. proctors.
KJ:aBUIBB .,.
HAVEBlIEYElU! &:
ELDER·
SUGuREnNING Co.'
CHuRNSIDE tI. (.DfItrIct
SAD. May 13, 1890., . . .
cOurt, 8.:D. New Yorl;.
8JIJnnI..-J'JQlIGD'l'-8UOBTAGB Dr DUdT1IBY-EVIDBNCB.
TwO vessels delivered sugar In bags to the respondent, and tbereafter, on IUt' broughti"to recover their freight, the defense of short delivery was Interposed. .T1le. vesselll proved that theirhatohes were kept battened down until the ·wu takeuoharge of by the res.,ondent, and that all the sugar received was deliv:ered. The evidence showed rough usage of the bags by the respondent in unloading, whereby some bags and their marks were destroyed. No direct proof was given by respondent of the number of bags actuauy received. . HeZd that, though the ship was bound to aooount for the number ofbaga shipped, under luch circiililatances, the burden of proving shortage being on the respondent, the mere absenoe ofa few marks was notsufDclent proof of shortage, and that the alleged offael faUe'd, ve_is were entitled to recoverthelrfreight.
In AdD;l.iralty. Action for ·freight, with offset of shortage of cargo.
Con"""8 Kirlin, for libelants. John E. ParBfmB, (H. B. CloaB<m, of counsel,) for respondent.
BBOwN,J. The Hampshire and the Ixia were both chartered by the respondent for the transportation of sugar. The shortage in weight of the sugar delivered is not 1 per cent. upon the amount stated in the bills of lading. This is so sIPall that, considering the liability of sugar to vary from inherent quality, it affords no presumption of neglect of duty on the part of either ship in transportation. No allowance can be made, therefore, .Plerely for this difference in weight. But the ship is accountsblefor the nqmber of bags that she received on board. There ought to be no shortage on these. There is no exceptionin the bill of lading that can shortage of the 15 bags in one case, and. of 11 bags in the cover the other.. The ship must account for the bags she does not deliver. There is. evidence in behalfof each ship that her hatches were kept battened ,q0W'Il· until the unlading was takeo ·charge of by the. respondent, and that all the sugar received was delivered. The respondent attended 'Reported by Edward G. Benedict, Esq., otthe New York bar.
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