780

. JfEDERAL REPORTER·.

in this manner until night, and at midnight the wind northered, and was getting high, which obliged us to furl the mainsails and jib. 1m· possible to leave the pumps except for a few moments of rest. During the morning the wind flew around to S. E., and thus ended these twenty-four hours." The last extract is fairly descriptive of the difficulties which envir· oned the bark Aurora until she put into the harbor of Brunswick for succor, the/weather having become very violent. The Aurora was an old ship, having been constructed in the year 1852, hence 31 years old. She had been refused rating for insurance, and it being evident that after the thumping upon which the injury is assigned that she put to sea in exceedingly rough weather, and showed no leak for nearly two days, and no evidence of any other injury traeeable to the thumping having been presented, the court is of the opinion that no sufficient reason has been shown for a recovery against the respondents' tug-boat. The court, in view of all the evidence, is further of the opinion that the injury sustained was occasioned by the stormy weather and the unseaworthy condition of the bark. Ordered, that the libel be dismissed, and the decree be entered against the libelant for the costs of this proceeding.

THE GEO.

E.

BERRy. 1

TOWN OF PELHAM V. THE GEO.

E.

BERRY.

(IJiatrict Oourt, 8. IJ. New York.

November 16, 1885.) "'

1.

WHARFAGE-INCLUDES WHAT.

Wharfage, in its most general legal sense, includes the mooring of vessels for the purposes of protection and safety, as well as for loading and unloading the cargo.
ALMOST DESTROYED ·BY FIRE MAY BE LIABLE FOR.

2.

The schooner B. had been seriously injured by the burning of her cargo of lime; her decks, many of her beams, and her masts had been burned away, and in that condition she was fastened to a Wharf, belonging to the town of Pelham, BO that she floated at high water, and at low tide was nearly or quite out of water. Held, that she had not ceased to be a vessel so as to be legally subject to possible claims for wharfage. . The schooner had been given to H. for repairs. H. tied her to the wharf owned by libelant, near his ship yard, and which he sometimes used for his convenience in repairing vessels. Held, that as the ordinance of the town only referred to vessels engaged in navigation, or in loading or unloading' their cargoes, and as no for wharfage could be collected except under an ordinance, wharfage in thiS case accrued only so far as the wharf was used by H. as a place for safely mooring the schooner, and for discharging and preserving what was aboard, for which $35 was allowed; so far as he used the wharf as a mere adjunct to his ship-yard, wharfage under the ordinance did not accrue.

S. SAME-TOWN WHARF USED FOR PRIVATE PURPOSEs-TOWN ORDINANCE.

,1,Re;ported by R. D. & Edward G. Benedict, Esqs., of the New York bar.

THE GEO. E. BERRY.

781

In Admiralty. Dudley R. Horton, for libelant. Scudder « Carter, for respondents. BROWN, J. The libel in this case was filed to recover wharfaRe against the schooner George E. Berry, for the space of 35 days, while she was lying alongside the libelant's pier at City island. At the time the alleged wharfage accrued the schooner was known as the Bowdoin. She had had a cargo of lime, from which she had taken fire, and had been very seriously burned in the interior, and was taken in charge by Hawkins for the purpose of being repaired at his ship-yard at City island, which immediately adjoins the libelant's dock. She was brought along the southerly side of the pier, and run aground at about high water, and was fastened by a stern liue to the pier, and by an anchor' from the bows running beneath the wharf. As thus left she floated at high tide, but keeled over away from the dock as the water went down, and at low water was nearly, or quite, out of water, according as tides were high or low. Her decks had been burned out by the fire, many of her beams burned, and her masts were gone. Such of her cargo as was worthless was thrown overboard. Whatever was found valuable in emptying her was put upon the dock by Hawkins and carted away. After she was emptied she was removed to his ways from one to two hundred feet distant. Notwithstanding the great injury to the Bowdoin by fire, and the fact that she was not then in a navigable condition, I am of opinion that she had not ceased to be a vessel, so as to be legally subject to possible claims for wharfage. The cases cited by claimant's coun. sel of floating docks, rafts, etc., do not seem to me analogous. So far as the wharf was used by Hawkins as a place for safely mooring the ship, and for discharging and preserving what was aboard of her while afloat, or in a position to which she was brought afloat for the purpose of discharge, I think wharfage, in the proper sense of that term, must be held to have On the other hand, 80 far as Hawkins makes use of the wharf, not for those or similar purposes, nor for any purpose of commerce, but as a mere adjunct to his ship-yard for his own convenience while reo pairing vessels, wharfage proper, and in the scnse of the ordinance of the town of Pelham, does not &.ccrue. See Town of Pelham v. The B. F. Woolsey, 16 Fed. Rep. 418, 423, and cases cited; Tnylor v. Mutual Ins. Co., 37 N. Y. 275. Wharfage in its most general legal sense doubtless includes the mooring of vessels for the purposes of protection and safety, as well as for loading and unloading the cargo. The town may therefore lawfully impose a charge as for wharfage for any use as a place of mooring only by Hawkins, even in connection with his ship-yard and business. The general ordinance passed by the town, however, must be construed to refer to vessels engaged in navigation, or in loading or unloading some parts of their contents, as the con. text, I think, evidently implies. As no charge can be collected, ex-

782

FEDERAL REPORTER.

cept that established under an ordinance, some further action of the town is necessary to cover the use olthe wharf by Hawkins as a mere place of security and convenience, and as a mere adjunct to his shipyard. The amount of use made of the dock by Hawkins in this case for the purpose of discharging what was on board is not easy to determine. There are various indications that it was somewhat less than half the time claimed in this suit. Under the circumstances I shall award the libelant $35 &s the nearest approximation I can arrive at for the uses covered by the ordinance. Decree for the libelant for $35 dollars and costs.

THE

1.

WARREN. s

(Oircuit Oourt, B. D. NeAD York. July 11,1885.)
COLLISION-STEAM-BoATS CROSSING-RIGHT OF -COSTS.

WA.y-SPEED-APPORTIONMENT

A collision having happened between the steam-boat 0., going up the East river, and the ferry-boat W., crossing the river from Williamsburgh to New York, the O. was held in fault, because, having the W. on her starboard side, and being bound to avoid her, she undertook to pass between her and the New York shore, and also for proceeding at a greater rate of speed than 10 miles an hour, prescribed by law, (Laws, N. Y. 1848, c. 321, § 1;) and the W. was held in fault in starting up when she saw the O. was intending to cross her bows, and was coming at full speed.

2.

SAME-DAMA.GES.

Both parties having appealed, and the decree of this court being substantially the same as that of the district court, on the merits, and in apportioning the damages, this court apportioned the costs of both parties in both courts. See l'he Warren, 11 Fed. Rep. 448.

Appeal in Admiralty. On new proofs in the circuit court the value of the boiler of the O. was fixed at $1,700. See The Warren, 17 Fed. Rep. 704, and note, infra.. There being but one action, the district court apportioned the damages and gave the libelant full costs. Both parties Itppealed. James K. Hill, Wing Shoudy, and R. D. Benedict, for the Olyphant. . F. A. Wilcox, for the Warren. In this case the conrt, BLATCHFORD, Justice, found the following facts:
(1) On the fourteenth of January, 1880, the libelant Shortland was the owner of the side-wheel steam-boat G. T. Olyphant, which was a passenger steam-boat running between pier 17, East river, and Hunter's point, Long Island. (2) Qn the afternoon of that day, shortly after 8 o'clock, the said steamboat left said pier 17 on one of her regular trips, being tight and staunch, and ,in charge of a competent master and crew, the master and a competent Wheels", 1 Reported

by R. D. & Wyllys Benedict, Esqs.. of the New York bar.