KEIJ.EY KElLEY

V.

THE ALLIANCA. THE ALUANCA.

November 15,1890.)

97

tI.

(Circuit Court, S. D. New York.

SmpPING-LuIULITY OF VESSEL FOR TORTS-SCALDING BOILER-CLEANER.

Where the master of a steam-ship employs a contractor to clean the inside of her boilers, the ship is liable for injuries suffered by the contractor's employe, while engaged in the work, by the negligent escape of steam and hot water into the boiler, whether those in charge of the steam let it escape or it was done by some meddling" stranger in consequence of the negligent supervision of those in charge.

In Admiralty. H. Aplington, for appellant. Wm. B. Tullis, for appellee. WALLACE, J. Grube, II: minor, while at work inside one of the large boilers of the steam-ship Allianca, on August 17, 1889, was scalded by the escape of hot water and steam into the boiler, such hot water and steam coming from apparatus outside the boiler in charge and under the control of the engineer of the vessel. Grube at the time was in the employ of one Ryan, a contractor, who had been employed by the master of the steam-Ship to clean the inside of the boilers. In consequence of his injuries, Grube suffered great pain, and was confined in the hospital for three months. The district court in its decree allowed him $750 damages for his injuries. It is entirely clear that the libelant is entitled to recover, and that the sum awarded him in the court below was no more than a £liir compensation for his injuries. The master of the steamship, having employed Ryan to work inside the boiler, owed an active duty to him and his employes thus invited there to see that they were not exposed to any unnecessary hazard while there. Grube was injured by an escape of steam, which was inevitably perilous to his safety, and which would not have happened if those in charge of the steam-ship had used proper diligence in taking care of the steam apparatus under their control. It is quite immaterial whether the engineer, or any of his subordinates, let the steam escape, or whether some intermeddling stranger did so. Those in charge were bound to exercise proper supervision over the apparatus for the safety of those who might be injured by any relaxation of vigilance on their part; and if a stranger meddled with the apparatus, that circumstance implies negligent supervision by those in charge. I have no doubt, however, that the presumption is that those in charge of the steam apparatus let the steam escape, and that the burden was on the steam-ship, under the circumstances, to exonerate herself from negligence. A decree is ordered for the libelant for $750, and for the costs of the district court as taxed, with interest from the date of the decree and the costs of this court.

v.44F.no.1-7

J'EDEIU.L REPORTER,

vol. 44.

(D«8trLct OO'llJl't, 1.

D.New York. November 20, 18110.)

SHIPPING-CONTRAOT Oll' AFFREIGHTMEN!r-AMOUNT OJ' CARGO DELIVERED-LUMP SUM.

To take·the case out of the rule that freight is payable only on the packages delivered, the language of the carrier's contract must express such intent with reasonable certainty.

lL

SAME-BILl, OJ!' LADING-STIPULATION AS TO FREIGHT.

A bill of lading provided for freight at the rate of 82/6 per ton, "to be paid on right delivery as customary as per memo. in the margin," the memorandum in the margin "Imperial gallons 6,052, at 210 galls. per ton, equals 28.819; @ 82/6 per ton, £46.16.7." Held, that the stipulation was not such· certain contract for payment of a lump sum as to entitle the carrier to recover the full amount of the freight, on a short delivery, occasioned by twice discharging at ports of distress through perils or the sea.
GENERAL·A.VERAGE-INOLUSIVE OJ!' FREIc;lJIT.

B.

. 'An allowance in general average was mooe toa cargo-owner for 18,000 lbs. ot" oil . lost by" sea perils, the value being calculated on the oasis of the New York price,' . which would Include the freight to New York. Held, that ,the ship waaentitled to recov:er the freight on the 1l:l,OOO Ills.

In A,.dmiralty.

Suit for balance 0'£ freight.

Shoudy & Putnam, (C. C. Burlingham, of counsel,) for libelant. Bangs, Stetson, Tracy & Mac Veagh,' for respondent.

The libelis filed toreqover a balance of $428.79, freight alleged to.be due upon several consignmentsof cocoanut oil from Cochin China, arid upon the bills of lading therefor indorsed to the respondent. ' A consilierable number of "the casks were lost by sea perils. The respondeIi't h!is paid the stipulated tate of freight upon the number of gallons- actually received by him. " The libelant contends that the freight' specified in the bills oflading constitutes a lump sum which the respondent was bound to pay in full, notwithstanding the fact that a portion of the packages was lost in transportation. There were four bills of lading, all of which provided for the payment of freight as follows: "Freight for the said goods at the rate of 32/6 per ton of 210 imperial gallons to be paid on right delivery, as customary as per memo. in the margin, at port of discharge." In the margin was the following: "Memo. of freight. * ,* * Imperial gallons 6,052, at 210 galls. per ton, equals 28.819; @ 32/6 per ton, £46.16.7." At the bottom was a stipulation: "Not accountable for leakage or breakage, except from improper stowage." On the trial, the evidence of one witness was given, to the effect that it was customary to collect full. freight, though a part of the packages were missing, if the freight was in the margin, as in this case. So' muchmnst.depend upon the circumstances of each. case, and upon the langUage of the bill of lading 'itself, and the testimony of this wit-' ness seemed to me so uncertain in severalrespect.<3, that I cannot find' established the existence of such a custom. The respondent,who had had equal experience in similar importations, testified that he had never
lReported by Edward G. Benediot, Esq., of the New York bar.