128

I'BDEllAL urogTEl\'; Tol.· 48. '

they did; purchase fdfthe was to communi. cate to themihe representationsmMe byKuh & Tuska, 'and the derelied on instead of having fendants .:oompetentperson in New York to inspect the cargo, and report upon itlJ"illiture,andqualitY',There is no doubt that gross carelessness, or in· tenilomil naud,waspomtnitted by some one in causing a cargo ofsalt-cake to be put .on tbe'Taylbl'j and senttQ the defendarite; but, whether it was .' Ji;lfstakeor a trick, thelibelant \VaS as Innocentofitas were the defendor, their' agents. ' .As .I view: the, "evidence, Kuh' & Tusks would seem to' be' liable to the defendants. " They certainly ale not to the libel&01:;8'& there was DO privity of contract between thetnand him. Neither cduld thelihelant seek redress from HeUer, Hirsh &00., because they signed the charter-party as agents £Otthe defendants, and acted within thilsCOpeof their authority. Whitney v. Wyman, 101 U. S. 892. The libelant, therefore, has no other recourse than to the defendants. If I have not misunderstood the evidence, it proves that the defendants, throughtheii"speciaUy; instructed agents in New York, bought the cargo, and employed the libelant's boat to carry that identical cargo Wilmington. On this proof, a' decree niust be entered for the libelant, with an orderaf reference to ascertain t11e amounts respectively 4ue to hlJo for freight, demurrage and damages.
;1 ·

. BANDERS tI.

Tm

SANTElI.

Coun. D. South Ccu'oUtl& Noftmber I, 18ln.)
".1

A Bteamer meeting a Bloop on a river at night, 'Where there fa ample room, mu.t preaume that the latter 'Will maintain itlicourBe, and must keep out of the way' : if she attempts to paI!llllO near as to qause apparent danger of colll.ion, a4e lole in fault, althougli the sloop, under ItreY of exoitement, commits an error bv su enly ohanging its COU1'lIe. .. '

.um B.uL.-DtJIrT

0:'

8TJwmB.. .

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In Admiralty. Libel by'Samuel Sanders against the steaQler Santee for collision. J. F. F'Wken, for libelant. Sm'!Jfk &: Lee, for claimant. .BIMOlm>N, J. The libelant is the owner of the sloop E. O. Holland, small ve!lsel engaged ,in carrying freight about Charleston harbor and the adjacent streams and On' tJ;l,e night of 10th February last Santee in Ashley riv:er. The abe came into .coUision with the. aloop wu proceeding up the river under mainsail and jib, with a very
'1

THE SAN'1'EE.

121

light breeze, not exceeding three milee an hour. The steamer was down the river, against the tide. The sloop had up her lights. Both vessels saw each other for some time before the collision. The. collision was sudden and unexpected. The sloop struck the .swamer at right angles on.)ler port side, on the wheel-house in front of ,tile wl)eel, and her bowsprit penetrated the outer bulk-head of the steamer, passed through the berth of the engineer, and broke the inner bulk,head. The sloop was loaded below and on deck with bricks. She .was .seriously damaged. The steamer sustained no other injury. The law ofthis case is verY simple. We have only to ,apply the facts. Navigation rule 20, Rev. St. U. S. 4233. ," If two vessels, one of which iaa and the other a steam-vessel, are proceeding in such involve risk of eteam-vessel shall keep out ,Qf the way of the sail-veBBel." WhereR and sailing vessel approach e,ach other, so as to involve l'isk of collision, the, latter must keep her, course, and the fonner must keep out of the way. The .f?teamer may. be managed upon "a$sumption that the sailer will 200. An error or fault on keep her: CQurse. The Free State, 91 U. the., part of the sailer at the moment. Qf collisiou, under the excitement caused by the not absolve the steamer. The CarroU,8 Wall. 302; TM Dexter, 23 Wall. 89. The duty of avoiding collisions, with sailing vessels being upon steamers, the fact of a Collision raises a presumption of fault on: the part. of the steamer, and throws on her owners the Qurden ofpfoying that those navigating her took proper .under the ,circumstances,and that the collision was caused by the fault on the part of the sailer or inevitable accident. The,Oregon v. )locca, 18 How.. 570; The Colorado, 91 U. S. 692" ' The sloop had no other crew than the master and one man. ·The man has been examlped,--anllliterate negrofr--who, master is dead. to tell ,the however" give.s his evidence,to all truth. On the other side, we have the testimony of. the ml}.ster of the steamer and the pilot, both men of intelligence and large experience. At the place of collision the river is about 600 yards wide, with deep water. The steamer, when struck, was about 250 yards from the west shore. The channel was on that shore, but there was enough water on either side of her. Capt. Hopkins, master of the steamer, thus gives the account of the collision: "We left the Ashepoo Works on our way down to the city, and about opposite Lowndes' avenue we met this sloop, and had this collision. I saw her some time before the collision. I saw her red light. I was then in the pilothouse, and I gave orders to port the wheel. It was done. That was to give the sloop more room, to turn it (our bow) to the right, and bring the boat on our left; and then I took hold of the wheel, and gave it a little more room, so that we could run along with plenty of room to clear him when he came under our bow. Question. Did you lose Bight of the red light? .iJnS1»er. Just belore he struck us I saw his green light. The boat changed her course very suddenly, under our bow. Q. When you saw the green light of the sloop did
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i

128

FEDERAL

REPOlm:k, vol. 48.

you mkeariy preeautions to prevent the cOllision? .d. Immediately the boat and blew the whistle. Q. That did Dot prevent the collision? .A. No; ..··' ' , Upon the cros!!-exarnination he stated that the sloop must have changed hell course very suddenly. Helidds that he had plenty of room, and, had he anticipated the collision, could have gone either to the east or ' west of her. From this statement it appears that the red light of,thesloop was seen, and that it remained in sight until just before the collision. So the sloop kept her (lElUTSe up to that point. That the light ap,peared suddenly; and that,althorigh the steamer was stopped immediately, this 'could not prevent the collision. It is manifest that the 'steamerported her wheel too late. All that she could accomplish by it _ was to cl:tapge her own direction, and, instead of coming down on the sloop bows on, she came broadside. ,No wonder the frightened negroes, seeing,"them coming 'so straightdn us," lost their beads and luffed. But this did not cause the collision" fur between the time' the green light was 'seen ,and the impact of these vessels nothing could prevent the collision. ' "When upon ,the whole case there is no decisive evidence of fault.on the part of the·' sailing vessel, the steamer must for the collision, when no appear: to show that the, accident was inevitable. ,With plenty of sea-toom, and in good weather, a steamer is bound to take the ne<lassary meaSures in time to avoid II sailing vesseL" Th60iJJy of'1ruro, 35 Fed. Rep. 317. As· to the' dlimages.The rule is stated in The' Baltimore, 8 Wall. 385" restitutio in i'ntegro.All . the items stated are aIlow"ed but three. As the charge has\been made for another boat to take the place of the sloop while she was undergoing repairs, I cannot allow the wages of tbe crew dl1I'ing:thnt time: Nor can I allow the expenses of libelant's witness wben he was instructing counsel in this case. No.r the ,item of incidental expenses. Eliminate these, and let, a decree be entered for the with costs.'

.....

ENGU1JMAN TaANsp. Co.i!. LONGWELl/a al.
(Circuit Court, W. D. Mic1l!tgan;'S, D.' March' 23,1880:)
!lOR'1'CUGEB IN POSSESSJON-'-;A(JOOUNTABILITY liaR RENTS.
:';1

a mortgagee in possession of an undivided half interest in a milling prop"', erty forms a partnership with another to carry on the business, she will becbarged, on 'an aCCOUnting in eqUity, with the fair rental value of the half interest, notwith· ':'''standing that the business rellulteddill8strously. J.i H,' .

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,i

In Equity.

On an aGGou.nting.

WITHEY, J. Mrs. Longwell, one of the defendants, a mortgagee in the J)ossessippof the undivided half of premises, the conveyance' being absolu'te 'in form, has been required to account for the net rents and profits. Itturpsqut that she has received from one of the two parcels 'of real estatepQ relit, lmd th,at is not chargeable with rent. The titleofan undivided half of the property, upon the ,face 'of therecards was situated, Was in Mrs.Longwell. Defendant Sherman, owned the other half. ",She gave him a motigageon her half tosebure one-half of the costs of repairs whicli'he made on one parcel ofthe property; Sherman agreeing,tocarr,V on the b'tism!'ss onpilling4pd fiollppgfor five yoors from September, pay to Mrs... Longwell one-quarter of the net profits, she to bear one,.half of the losses, if any. Her quarter of profits Sherman .was to apP,lj,,towards, }:)ttying her share of the advances.:,z.:nadeby hini, secured by' tbe IiiQrtgage ,on herondiyided ohnillingproved disastrous;, Instead of a profit, there was' consequently there .was no givebto ". ' , Now it'l'sclaimed that Mra. Longwell'is not chargeable with any fimts received, none. We regllrd ,this view to be atnisappre:'.9n4erule, 'the as mortgagel;) in Gftheundivided one-half bfhthemill property, ,not be abcoun'ta'ble for reht'lr she had been unable to lel1sB the'property"pt'fad failed, after judicious leasing, to collect rent; but when she entered mto 'a partnership arrangement withl to,do a milling this mmpr(}perty, w,ould.be,thesameif she",had alone carried on the business,) and the venture turned out a court will, un,der suchcJ.rcumetances, there was profit or loss, but will the fair rental value of the premises over repairs, insurance, etc., and taxes paid. The master ill to ascerta,in wpat the rental value of" the the mill was during t11e periqd of the it was after theirpprovemel\ts were made; and credit ,her w'it4 pf her sha.re of the iIll.provement.$ beneficiaJ,to the freehold. ' ,,', v.48F.no.2-9
j'.l,;

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