TlIE .Al.BANY.

·431

that the exceptions ofthelibelants to the commissioner's report'mtistbit overruled; that the libelants Field, Clark, COllins, McGuirk, Early, and Kruger, respectively, must recover thelimounts reported by the commissioner in their favor, with interest Jrom the'date of the report, May 18, 1889, but that the libelants John Fee, Page', Mitchell, and Pidgeon; respeCtively, must repover one-half of the amounts reported by theclommission.er in their favor, with from the date of the report, May 18, 1889; that the libebints recover their costs the district court,taxed at 8208.35; and that neither party recover anycostB of this court. .i .,

THE ALBANY.

.· ,t

/.

(Districl crnirt,E. D. J!icMaan. DecemberS.
L

.. S/'Ivor III to take Ilu<:b;care of .the prpperty , tabs ot'hisown property. is lIable for the pJundE!rui$' or, . property ,by his servants or agents. . , , ' . , . .,
OJ!' CARGO. OJ!' . . .· . ."

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, ' : , ; '.

parspn

,', \",;

. .., ,

,tbe,DilssterjQfthll veaaelmay,>iu csseof urgent.neceseitY,'throw pr, ,l?tllerwise sacrUlcehUl.cargo to. obtain the releas,e of he hll.s n·o·rlght W give it awlloY.. Vnder such circumstances, donee takes no btle to the property. Is 'liable therefor as bailee, and 18 bound tos\1rrendllr it: upon 'ttio demand.ofttle.owner.,'· '" '.: i . ":".' . whQ.werethe,ownersof a tug, contrl'Cted to certain,SlplWiees toa sti.an.'ded Propeller for an 'lJ.0urly compensation. Durin.g the . 8uchservices'she received on board a part of the cargo propeller, wli.l.l:lh the officers and crew of the tug subs6quentl;V embezzled and dIVided' among themselves. libela,nts.were chargeable w'lth .the",a1tle of the property &0 . Two lighters which also belonged to libelants were also employed in removin$ portion!> of her cargo, and were sent by libelants, to a wharf to whicn.tua pUblIc .could obtain access by day or night. While laying there, a party of' hlBl'aliders came during the night, and, by collusion with the men in charge of the: liglbters, , stole a large part of their B.eld, that libelants were gUilty Of negligence , in failing to take proper care of the property, and \yere liable for ...
.. ' . . ' , . ' ·. THI:&D PERSONS. : :, , BY SALvOR;:

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,

8.

.

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... .

4.

IS.SAKEI,

DUring tile performance of these 'services the oflleers of the tug entered bito a corrupt agreement .with the men in charge of. two other lighters, in which.libe !a.nts had no interest, to tow to the propeller and back for a share in suo,hipart .of the as they might secure. These ligllterswere also laden with of the propeller, all of which was subsequflntly embezzled or stolen. Reld, thlli· au'eh agreement was not binding upon theownera ot the tug, alid that they 'Wat8: not liable for the property so embezzled. . ,, ,: ,', ($'Ull.ab'u8 by I:

1n Admiralty. ,On libel fOJ; salvage and oroas-libel for embezzlement. . " " ,::, .: .L; TliiSH1)eI:was filed to recover the sum ,of for the of .Major Dana for 73 hOjlrs,fror:q,$,plclqcl$: :4. M.of!November28, 1887" at &10 per hour. 'and for 3: daY151i;useof lat" 825 pel' daYiduring ,,,In,.gupporlJ'·of
i'

H.

43.2

FEDERAL .

I

vol. 44.

their claim, libelants offered in evidence a bill, certified 'by the master (:If th.e Albany, for this amount. ' The answer and cross"libel a11eged"That by said hiring it became and was the duty of the master and crews ,of sa;id tug and lighters to take all proper care and use all proper skill in such and in savingand preserving such part of the cargo as they might rectlive upoIi the said tug and lighters from sl1id propeller, for the owners thereof. Respondent denies that 'they took all proper care and used all propel' skill in saving andprE'servinllsucb cargo; * .. * that said services were :performed in so careless, negligent, and incompetent a manner that a large amount of property which they undertook to transfer from the said propeller by the said tug and lighters was lost to this respondent by reason of the negligence and incompetency of those in charge of said tug and lighters."

The facts developed by the testimony were substantially as follows:
About 6 o'clock in the evening Of Thursday, November 24, 1887, the propeller Albany, of 1,917 tons burden, bound from Chicago to BlIffalo, laden with a ll\rge and valuable cargo of Oour, torn, lard, and merchandise, stranded upon Poe's reef, in the'straiLsof Mackinaw, near Bois Blanc island, and about 7 miles from Cheboygan, during a thick, driving snow-storm. The lateness of the season and the exposure of the'locality combined to make the steamer's prompt lmd energetic measures for her situation most perilous. and speedy release. During the she sounded alarm whistles, and threw overboard a consideralile quantity of her cargo, so that by daylight of NovelIlber25ththe waters were, covered with sal'ks and barrels of flour, and the shore by Duncan and Cheboygan lined with the abandoned property. About 'l o:clock In the morning of Friday, November 25th, her male was serlt to Cheboygan, the nearest port, for assistance, and upon the way met respondent's tUll, Major Dana, nnder charge of W,lliain Elliot, libelant's g,-neral agent amI manager, who. hearing the signals of distres!l from the Albany, had taken the tug, and was then upon his way to her assistance. There was a1so on board one Harry Hoberts, foreman and manager of libelant's mal'llineshops at Cilt'boygan. l'he Major Dana proceeded to the Albany, and on her arrival there Capt. Frank Williams, master of the Albany. and Elliot, master of the tug, agrppclupon terms for the use of Lhe tug at $10 an hour. Q&pt. Williams also agree4to pay $25 a day each for light\'rs which Elliot agreed to provide for the salvage of the. Albany's cargo. At the same time cthecaptain of the Albany requested Elliot to bring him out a gang of men to help unload his boat. The tug left the Albany, returned to Cheboygan, obtillnpd two lighters and a number of laborers to work in. handling tile cargo, and about 11 o'clock returned to the Albany under the command of Capt. Charles Hobinson, her regular master, and with Willianl Elliot still on .1>o'UI'd. 'The lighters were at once made fast 011 the port side of the Albany, ,taijd,,\\'erepromptIy laden. by the men brought out from Cheboygan, who were hired fOf, paid by, and worked for, the Alliany, and were not in the employ of the libelants in such service, or subject to their orders or control. One Todd, who nev,'r seems to have been in libelant's employ, was selected by Capt. Williams as time-keeper. While the lighters were being loaded 011 the port side of the prop,-ller, the Albany'!!'crew were throwing flour overboard on the . starlioard side. On one of the lighters was put all the lard in the cargo; 50 tierces, and a large quantity of tiour in 140 and 280 pound sacks 8ndbarrels. The other lighter was loaded wholly with flour. Capt. WiIliams'dustructions were that the flour and lard should be taken to Cheboygan Warehoql$ed·. Seeiu4I the t!OU1' thl'UWIl 0 from the Albany, Capt.

THE ALBANY.

433

Robinson asked Capt. Williams to throw some of it on his tug. The latter told him to bring her along-side. and he did so, and they did throw upon the deck of thll tug, around the pilot-house and in her cabin. 30 to 40 sacks and 10 or 12 barrels of flour. The tug then proceeded to Cheboygan with dispatches, and while there the flour. except the portion in the cabin. was unloaded upon McArthur's dock. Robinson claimed that be supposed that the property had been abandoned by the Albany, and that it belonged to him, and told the man in charge of the dock that when he got time he would come and take care of it. But when afterwards he went for it he was informed by the man in charge of the dock that it had been put with and shipped in another load. The tug returned to the Albany with dispatches. and found the two lighters loaded, when they were taken in tow by the tug to Cheboygan. The captain of the Albany had structed Todd to put a gang of men on the li/{hters. with a man in charge, take them ashore and unload the stuff in the Michigan Central warehoul$e. In.obedience to these instructions, Todd selected a gang of 15 or 20 men. to .go upon the lighters. and ODe John Knox to take charge of them. These men were selected from those unloading the Albany. This man, Knox. did not seem to have been in the employ of libplants at this time. although he had been prior to that. The lighters, with the men on board and in cbargeof Knox, left for Cheboygan about 1 o'clock in tow of the tug, and as soon as they got away from the Albany her master gave orders to throw the cargo both overboard. and they rolled it into the water as fast as they could sides. When the tug left the Albany with these lighters, her master was instructed by the captain of tbe Albany not to bring back any more that he would not try to save any more. and he told the captain of the :Saugatuck.the same thing. The two lighters were taken to Cheboygan, and cation made tothe railroad for a warehouse. The agent replied that it \Vould be necessary to get p!'rmission from the head ottice at Bay City. While the lighters were lying at the Michigan Central Railroad dock, the men on board them were stealing the stuff. and throwing it overboard so that they could better steal it. Owing to the excitement caused by the great sacrifice of property by the Albany, libelants concluded it would be unsafe to leave the lighters there with the loads upon them overnight, and decided to take tbem to their private dock at Duncan city for greater security. The property at Duncan was the sole property of the libelants, the neiu hborhood being spars!'ly settled. It was situated about a mile and a hHlf from Cheboygan, and libelants had repeatedly left lighters loaded with ·flour at thf'ir docks there with· out loss. The pUblic had no access to said docks without permission. and by going through libelants' pri vate grounds. As the tug was proceeding with the lighters from Cheboygan to Duncan. her captain was hailed by men upon two other empty lighters, known as the Nelson and Bob Robinson lighters. who wanted to know if they were throwing stuff overboard from the Albany, and requested hinl to give them a tow Ollt there. In answer to this requ!'st, Elliot said to the mast!'r of the tug: "If the boys can pick up some lIour. you can take them out; we have nothing to do with it." The two empty lighters were taken out as far as the dummy. and left there, while the two loaded ones were taken to libelants' dock at Duncan city. tied up. and left in charge of John Knox. who, for part of that day, had been working upon the Albany. The tug then returned. picked up the empty lighters, and took them out to the Alhany. reachinK her after dark, between 7 and 8 o'clock P. M., when they were laden that night with flour and corn, and towed to the Nelson and Cass House docks at Cheboygan by the Major Dana. I.-ater in the evening, at Knox's request for some OUfl to help him pump the lighters, one Leischman, work for the libelants was ended, was requested to go to the lightwhose

v.44F.no.6-28

434
tlJ;sandasslst Knox.

FEDERAL REPORTER,

vol. 44.

was'lhfortDE'd that the two first had been taken to Duncan city and Ja,id up for the night. He asked if Knox had been left in them. and',tipOIibeing informed:of the fach replied:" All ,right, take thE'tn toChemorning; and tinldad'thetn." When the tug teturned to the .A:JbtltiY"witbithe empty lighters, the men. were still th.'owing corn and .fiour The menin charge of the 'lightE'rs Bought to obtail1aome of the stuff 80, heiDI{ abandoned, 'alld placed one' iighter on each side of the Albany. One OIlirk; In charge &f the lighter Nelson, claimedto'htwe 'lJought from the mate aoout 30 to 40 bushels o{col'n lind abaa't 30 barrels of flour for a merely 'liQminlihum. ,TheBobRJbiDBoll wasloadM in sU'bstantlally the s8me way, and'nd aCcOurit was kept of what went on either'of:them by anyone on the '.A1blltly,llltJhoUgh theBob Robinson is said to have had a:fullioarl. and l'lIipacltt 'was; estimated by some of thewltnessea US being between 300 to '400 fiourand'corri 'werlf"'oollt the same time being sold off the two ligbters'werebeingloadt'd, there W8$ roIled'upoil'the tllgoff oneof·thE'm;'by'some ·of the :mE'D;ifor themselves, 'l'rdm' 1CHu14 'banels :of'llour. The took the' two Hghtersback to CheboygaliJ aud left them there late FrldRyevening·. Her 'master, Hobinson. left ber Ulere,and went to his' hOlM In CbeboyganfOl'tihenlg,ht, and, Elliot took to her 'Ft'om 'the cargoes of'the ers'left Itt Dunclmelty, tberewerestolen t1iat night 21 tiercE'S of lard and;a largeqriantJlvy oHlollr,estimatedatalJoot ,'211 barrels; Thli{iour anti. corn ,the 'loads 'of' thf.Hlecond> tJwo 'lightl'rs;,t'he'Nelson and'Hob Which :were,towed by Jttle MajorDlmW into the Cheboygan , and ,tbereunladen,'ftlt 'all J >llt6Ieni,' and;' divided among ,the men on Nota, sacker: barl'lo't'offJOU1' or 1\ :bushel'ofh'(Jtn'was spaNd. j after' IM\ting the Nelson and' ;Bob Rouinson Wllehtfte tug: reached lighfers'at'Clieboygan, tM'ftouronher,'Whioh had bt"en proourPd h.V Ca.pt. Rdbinsoldn the morning,ahd 'not lef.t·Bt McArthlilr's dock,andthat put upon it,by Canjpbell aM' others'in, tlie evening,wias divided between the men. SOhl'eof itWRllleft on tbeddckat Duncan, and afterwards put on one of the lighters; taken toCbeboj'gah, put into the 'warebouseiand shipped. with tbe ", rest; to tile transportation' company. $. and W. S. HumphreY, Jorlibelants. ,H.· H.' Swan, for claimant·.

-4lbllny,: the failure to get the warehouse was reported to her IIUlsMr. and he

When 'the tagwltb the empty lighters arrived aMhe

o.

,

I

Ji., (after stating the facts cu,above.) The real question in this case iswbetherthe libelants are resp<)llsiblefor the wholesale plunder of :placed upon the tug alid these lighters; and the answer tt> tbi a practically depends upon the. further question whether the rilen in charge of such .tug andligbters were eUlployed by the libelants or by the .,Albany, or.were merely marauders acting upon their own responsibility. , There is no doubt of the general proposition that salvors are bound to take such care of the property sllvedas a prudent person takes of his own property; that they are liable for the consequences of their own negand that, in elise of a gross preach of trust qr theco\irt 'ml).,y decree an entire forleitllnlof ,their:claim upon the same principle that 'a seaman's right to wages maybeforfeitedby'hismisconduct. Masonv.The Blaireau,2 Crluich,' 2401 'TheSeniatlJf', ·Brown,
BROWN,

THE ALBAKY·

435

. With regard to the responsibility of a principal for the willful or. criminal·actsof his agents and servants, the general rule is still as down in: McMantt8 v. Orickett, 1 East,lOG; Foster v. Bank,17 Mass. 479;. and Mali'v, Lord, 39 N. Y; 381,......that the master is not liable for the willful acts of his servants, committed without his express or implied authority, unless, at least, they are done strictly within the scapeof their employment; but there is no doubt that in the case of inn-keepers, common carriers, nnd ship-owners, they are, upon grounds of public policy, Hable for the embezzlement of their servants and agents, (SchieJJelin v. Harvey, 6 Johns. 170; King v. Shepherd, 3 Story, 349; The Niagara, 21 How. 7; Nugent v. Smith, 1 C. P. Div. 33; The William Taber, 2 Beri. 329; The E. M. McChesney, 8 Ben. 150.) Thus in The Amiable Nancy, 3. Wheat. 558, the owners of a privateer were held civilly liable for the acts of her crew in plundering a neutral vessel; Mr. Justice l::iTORY observing that. "This iij a snit against the owners of the privateer, upon whom the has. from motives of policy. a responsibility for the conduct of the ollicers and creW employed by I hem. '" ... ... They are inDm'ellt of the de-merit of lhis transaction, having neither direcll'd it nor countenanced it. nor participated in' it in the slightest degrt'e. Under such circumstances, Wl' are Of opinion that they are bonnd to repair all the real injur.es and personal wrongs sustained by thelibelaots; that they are not bouud to the extent of vindictive damages." See, also, The Anna Maria, 2 Wheat. 327. In Taylor v. Brigham, S Woods, 377, it is said that"The law treats the captain of a boat as in some 80rt a SUbrogated princi. pal. or qualified owner of the ship, possesslnlC authority in the natllre of exerdlorial power for the time bt'illg, and his liability, founded upon this consideration.extends not merel)' to his coIItracts. but to hi> own negligences. malfeasances, and misfeasances, as wt'll as to those of his otlicers and crew. ... '" "''fhe owners are eVt'n liable for the willful an,1 mali lous acts of the master, done in the course and within the scope of hiS employllJellt.
It

How far the liability of the owner of a salving v£ossel extends for the misconduct of his officers and crew may aumit of ijome dOllut. The authorities upon this point are not altogether in harmony, and perhaps the prevailing rule cannot be Letter stateu than by saying thnt the owner is not HaLle lor the secret and independent acts of his crew j Lut it would be a singuJaranomaly to allow them a claim for salvage when the very purpose for which the service had been undertaken had been defeated by a wholesale plunder of the property saved. In the cuse of The B08ton. 1 Sum.. 328, 341, Mr. Justice STORY says: ".In cases of sahage, the party founds IIpon a meritorious service. and upon an implied undl'l'slandillg that he IJrinl{s hefore the court, for its final award,' all the property'saved. wilh entiregllod faith, and he asks a compl'nsatiordorthe restitution of it unin.iured aud unt'mbezzled hy h,m. The merit iK noliusaving the property alone, .but it is in saving and "aBtoring it been. if to the· owners. However mel'itorious the act of saving lUay the ijubsequelltly lost, and never reaches the ownt't, no compensation caD LJe or decreed. ... ... ,'" could lie

436

FEDERAL' REPOHTER,

vol. 44.

traordinary than an enunciation by a salvor in a court of justice that he had the property. and had perpetrated a gross fraud or theft upon the owner. tor the purpose of withdrawing the property from him, and then to ask, in the same breath, for a compensation for his labor, notwithstanding hiB iniquity?" In the case of The Iiland Oity, 1 Black, 121, a barque in distress had been taken in tow by a steamer and brought into port; but while" in possession of the steamer the officers and crew of the latter broke open the chests of the master and seamen of the barque, robbed them of their clothes, watches, and money, carried away the quadrants and barometers of. the ship, rifled trunks on freight, and this pillage was comn;litted extensively, and upon a plan of genera] plunder, by the mate and many of the seamen. without opposition from any of them." It was held that all the salvage apportioned to the crew should be forfeited on account of their misconduct, but that the owners of the steamer were entitled to their proportion. In the of these authorities, let us consider the relations of these parties to the libelants and to each other. Libelants owned the tug and first two. lighters. They were also largely engaged in lumbering a,nd machine-shop business, and a general store; owned docks, mills, and shops at Duncan city, and employed several hundred men, who lived in the neighborhood, and who, when the mills were shut down, took employment where they' could find it. Witness IJ;l1iot was the "general outside foreman" oflibelants; had "the general oversight of all, the outside work l 1' having fun control and authority over the hiring and employment of the tug. He made the bargain for the use of the tug and lighters in this instance, and accompanied the tug upon all hel'trips tothe Albany. How far he shared in the plunder of this property may admit of some doubt, though the testimony tends to show that a portion of it was left at his house, at least without his dissent, and ,that he standing upon the dock while the flour was be£ng taken away from the tug, and must have known what was being done with it. He seems even to have ditected a part of it to be sent to Roberts, his brother-in-law, who was foreman of the machine-shops, though it is but just to him to say that he made restitution of one tierce of lard that he had received, after keeping it for about three months, and paid for most of the flour. Robinson was the mirsterof the tug, and commanded her throughout the day, except upon her first trip, when the bargain was made. He was not only privy to the conspiracy, but received a portion of the plunder, though he seems to have afterwards lost it. Roberts was libelant's foreman, was actually engaged with the others in the plunder, receiving a tierce of lard and four and a half barrels of flour. McDougall, the engineer of the tug, admits receiving eight or nine sacks of flour. George Smith, the fireman, also received several barrels, while the rest was divided up among the crew. -. I do not see how it is possible for libelants to escape .liability for the loSs of the property laden upon the tug. It was claimed with respect to

THE ALBANY.

437

this that the flour was only rolled upon it to save it from being thrown from the captain to the into the lake, and that it was virtually a men upon the tug; but, as the lighters had been hired for the express purpose of saving the cargo, it is very improbable that the captain should have intended to give away that portion of it which went upon the tug. Aside from the improbability of his doing this, Capt. Williams had no right to sacrifice property in this way. It was not within the scope of his authority to give away property which could possibly be saved, and the crew of the tug were bound to know this, and were bound to deal with the property as salvors. A man ('.annot give away that to which he has no title. The master of a vessel has possession of the cargo for the purposes of transportation and delivery, and he has no more right to give it away to another than he has to sell it, and put the money in his own pocket. A gift under such circumstances conveys no title, and the donee is chargeable for the conversion of it as for embezzlement. With regard to the property on the first two lighters, the case is not essentially different. Under instructions to take them to Cheboygan and put their cargoes in warehouse, the lighters were towed to Cheboygan, and libelants, failing to obtain the use of the Michigan Central warehouse, sent them to Duncan city, where it was their clear duty to see that they were kept in safety until thoy were unladen. They were left in charge of one Knox, a man who had been employed for leveral seasons by libelants, but who had been paid off the Wednesday night previous. He had been taken off with a gang of men to the Al",)ally , worked on her eight hours, for which Todd, who had been recommended· by Capt. Robinson of the tug to Capt. Williams of the Albany as a timekeeper, allowed him $60. Knox says his time with libelants "went right on" under an arrangement with Roberts, and for this generosity he allowed a charge of $10 to be placed against his account for Roberts' benefit. Knox was put in charge of the lighters at Duncah city, apparently by the orders of Robinson and Roberts, and perhaps with the consent. of Capt. Williams of the Albany, under whose pay he was at the time. He exhibited his faithfulness to his trust by gettmg drunk, going to of the lighters to be looted by a of sleep, permitting the marauders during the night, and sharing in the plunder. Leischman, who was sent by Roberts to go down to the lighters, stay with Knox, and help him pump them out, had not been to the Albany at all, but was an employe of libelants. and had been working in their shop, running the bolt-machine. He says that no instructions were given to him about taking care of the property, and gives this as an excuse for offering no opposition to the raid that was made upon the lighters that night, and for receiving his share of the plunder. Indeed, both Knox and Leischman, instead of protecting the property, as it was their duty to do, seem to have been the aiders and abettors of a gang of thieves, who .carne to the dock that night with such wagons as they could obtain; and carried away all their vehicles would hold. In the morning, the light.ers were careened so much to one side that they had to be straightened up

438

FEDERAL REPORTER ,vol.

44.

be,takeQ back: to Cheboygan to unload. In all, some partici!pateQ in this .spoliation. did, not stand in the :position 'of 8oommon carrier with reSPl3Gt to, these cargoes, they at least werebourid to take reasonable'a,n,d proper care of them, and to make good 10ssesoccasiol1ed by the negligence of their aervllnts. Brind v. Dale; 8 Car. & P. 207. ,rrheqefenslilJhatKl1Ox was hired by tho masler of the Albany to take care of this property; that.it was intrusted to him by the expressed direction of Oapt. Williams, and that libelants are not chargeable for his breach of trust I is plausible, but not altogether sound. Granting that Knox had been was.in the. pay of the Albany. the evidence is clear that Capt.,WUliams instru:oted Todd to take the lighters, and unload thelll inthe¥i¢higan Central warehouse at that, failing to obtain, thiswareb9use, libelants assumed charge of the lighters for the .themto Duncan city as a safe place for them to remain. night, It is that sending them to a dock which was aGcessihle· to ,the publicby,clay and night-so easy of access, indeed, tbat los.swas only measured by the capacity of tbe, v!)hicles that. were driven there to take it away""':'is not such care asa prudent, l'nan,would take. of his own property. Irrespective of the <Jues. ' tion,whetner l<nox WaS in the employ of the Albany or not, we think· that libelanta .ar$ chargealJle with groesnegligence, under the Btances;and, with the exoitement then prevailing in that neighborhood, in sutfeJ;'i,ngthe. barges to- lie at a wharfopen to the public, and appar':' . ent.ly witbQukllny protection. 'rhe lJaStl,$Q:.far as concerns the Nebon Rnd Bob Robinson lightE'rs, is lighters were not owned by libelllllts... They had nointertlst in them, and no personal knowledge that been towed to the Alban)·. Whale there is abundant'evidence Elliot, Robinson,and the masters of theql to the Albany and back for a shareofthek plUnder, .agreement was entirely outside the scopeO'f their agency anrleruploYlllEmt, and bound only the parties to it. It is true that CaVt, . Williams may .havesupposedthat these lighters belonged to libelants, bpt no represE'Qtationof thatJHnd seems to have been made to him, and SllCh was Mt the lact. Libelants appear to have heell entirely innocent ofjany complicity in this entire transaction, and it is unjust that they shQulll be for'the acts of strangers, or even of th IJ)oyes, wheu :they clearly exceeded their authority. It is no partof the dntyo£ or master of a tug, to permit her to be Ii. expeIJHionofiPis.kind. and is .soliu outside the' scope of tb.l?h' E)mp)()y;l'uent ,t'hat the owners are not bound byit. l Q'lae' i:lvidence in th is cusediacloses a very singular misapprehension up<l:O class of people with regard to thedutieaof the in, and with regard to the ow[}ership of p.rqlJerty: throillo': OYerbOOM or unladen' ,from them. So far lrdtn being opheAlbany toeJLtend to hersuch:assistanoo
I

BRADY tl. THE BENDO.

439

as was in their powel',her signals of distress seemed to have beeninteJ:'. preted as at! invi,tation to everybody to help himself to whatevet'hecould lay his hands upon belonging to the cargo. Indeed there is a medieval flavor about the colldul:lt of the men engaged in this wrecking expedition, which intuitively recalls to the student of maritime law the customs of the Gauls, as stated by Judge PETERS in his observations upon the laws of Oleron, who were in the habit of seizing upon the cargoes' of vessels UP0J;l their coasts, and confiscating them to the use of the lords ,of th'eIlQil,and of either selling their crews into slavery, or sacrificing themlirSi an offering .to their gods. Happily, the crew of the Albany ,preBe,ryed from, this fate, as she succeeded in extricating, herself to a port of safety., , ' , i, d,t irqm There must be a decree for the libelants for the amount of their: and '8 cross-libelants for the value of theproperty,taken from· ,the tug and the first two lighters, less the amounts receivedih se1Jtlementandpayment for the same, and a final decree for the party ,in Whose favor 'a,balance is found to be due. The C4Se', will be teferre<:ttt> this amount, upon the 'as may be offered; within 20 days from:tbis

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Court, E. D.VirginUJ. December,20, 1890.) .
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cOLLIBTOW-8:rEUlE;as--Lostl OP B:rEER4GE W4Y.

Where a steam-ship, while in relations to a stelJoPl·tug and her tow dElscrl.\Hld by J'\1.1esof'navigation 19 and 22, in stopping for the purpose of cqming to anchor,loses her steerage way, and disables herself from complying with tbose rules by keeping out. of, t.hll tug's way, and a collision ensues, held, that lhe steam-ship was in faUlt, and must pay the damages. (Bi/tuibU8 blI the Court.)

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In Admiralty. Libel for damages from Rarma'7UJ(jn &: Heath, for libelant, WhitehU1'8t &: Rughe.s, for the Sampson· .Sharp &: Rughe.s,' fot' the Bendo.
HUGlIES,

'Brady, that was sunk in the entrance to Hampton Roads, between Old Point Comfort and the Rip Raps, in contact with the English steamer Bendo, at about half past 9 on the night Of September 1, 1890, which was a clear, moonlight night. No veSsel was anchoted in this channel on the occasion except the steamer Waddy,whiclllayabout a quarter very, near the' The'ich,anne1 'plile,off' froqi Old and ita depth pi fuU,6Q A strong
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J. The libelant was owner and master of the barge Kate

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