252

J'EDERAL 'REFOBTEB,

voL 49.

THE MAJOR WILLIAM H. TANTUM. 1

SHOE

et al. ". Low MOOR IRON CO. et ol.

(Circuit Oourt of .Appea't8,Second O(rcuU. December 14, 1891.)
GIllNBIlAL AVERAGIll-VOLUNTARY STRANDING-BAVING OF LIFE.

, . Where the master of a vessel, which was dragging her anchor in a I!'ale and In danger of going sshore, slipped the cable, and voluntarily stranded her, in substan· ti,aUy the Bsme place, under the same conditions, and with the sallle result to ber cargo, as must necessarily have SOClD, from her dragging anchor, held no case of general average. 46 lI'ed. Rep. 125, WJ1rmecL

In Admiralty. Appeal from a decree of the district court of the United States for the southern district ofNew York, dismissing the libel of the libelant. Affirmed. ' The'schooner Major William H.Tnntum, loaded witb a cargo of iron, went for refuge inside the Delaware breakwater, September 8, 1889. The bad weather developed into the great storm of September, 1889, and the vessel gradually dragged her anchors, until the 10th, when some at4 o'clock in the afternoon but a of her anchor chains gave way, single one remained, and the vessel was drifting towards the beach, broadside on. In this situation, her master, fearing for the lives of those on board, determined to slip his cable and run ashore, head on. The cable was accordingly slipped, and the vessel, without canvas, paid off·'and went head on the beach,Mterwards turning broadside to the sea, and becoming a total loss. Part of the cargo wassa'led, and forwarded to its destination. The ship-owrierclaimed a general average, and brought thisstiit against the cargo-owner to recover $2,939.03, the amollntcl1arged against the cargo by the average adjusters. The .disti'icrcourt held that ,the act of the master in slipping his cable was done fotthepurpose of saving life, and with no other motive; and therefore. dismissed the libel: 46 'Fed. Rep. 125. The libelants thereupon pea)edto thiS' court. . . Wing, Shoudy & Putnam, for appellants. Sidney Chubb, for appellees. Before WALLACE and LACOMBE, Circuit Judges. PER CURIAM. At the time she slipped her cable, the Major William H. Tantum was on the eve, not of foundering in deep water, as her counsel contends. but of going ashore. Her hatches were not even started, she was making no water, 'and, at the rate at which she was drifting, all the indications were that she would, in a few minutes, ground on the beach, to leeward of her, broadside to the seas. The master slipped his cable, and thus hastened the end, not averting any imminent peril of foundering in deep water, selecting no more favorable locality for stranding, and, though she struck bow on, swinging afterwards broadside to the seas;
'Reported by Edward G. Benedict, Esq., of the New York bar.

)l'){;EEN II.' MORSE.

253

in other words, as,the learned district judge expresses it, stranding her "substantially in theeame place, under the same conditions, and with the same result to the cargo," though by striking bow on there was secured a better chance to save the lives of all on board. No case of general average is made out. The decree of the district court is affirmed, with
costs.

MCKEEN

1.

'D. MORSE)

(mrcuft Oourt of Appeals, Second Oircuit. November 7, 1891.)
DEMURRAGB:""F..u:LURE TO PnoTEST-LACHES.

On olaim of demurrage it was shown that neither the charter nor the bill of lad· ing oontained apy provision as to demurrage; the master made no formal protest against the delay, but signed without objection the bill of lading, and did not bring suit until long after. . Held, that demurrage could not be recovered. .
A master of a vessel received from the charterer a clleck. which charterer claimed was in full payment of the master's claim for demurrage. The master mined the check, but notified the charterer that it was notsuftlcient, and that he would sue. Held, that his retaining the check was Dot aD accord and satisfaction.

B.

ACCORD AND SATISFAOTION-RETAINING CRECK-PROTEST.

In Admiralty. Appeal from a decree of the district court of the United States for the southern district of New York, dismissing the libel of the libelant. The respondent chartered .libelant's schooner to carry ice from Richmond, Me., to New York. The vessel arrived at Richmond August 27, 1890, and her master at once gave notice of his readiness to load. The loading was not completed until September 10th.. Libe1ant claimed that five days would have been sufficient in which to load, but it appeared that he triadeno formal protest against his detention. Neither the charter nor the bill of lading contained any provision in regard to demaster signed the bill of lading without protest. He also made no·complaint on his arrival in New York, or at any time until the commencement of this suit. The district court dismissed this part of the libelant's claim. There was also a further claim by the libelant for d'eIllurrage at Poughkeepsie. The respondent admitted some liability.;andgave the master a check for $125. The latter retained it, but did not agree to accept it in full settlement, or to retain it. He also notified the charterer that he would sue. On suit being brought, respondent claimed that the retaining of the check by the master wae an accord and satisfaction. The district court declined to sustain the claim, and awarded judgment to the libelant for $484 demurrage, less the $125 aIreadypliid j and both parties appealed to this court. &; Green. for libelant. Wing, Shoudy &; Putnam, for respondent. Before WALLACE and LACOMBE, Circuit Judges.
lReported by Edward Esq., althe New York bar.

J'EDERALRlWoRTJm',

voL 49.

,PER; Ct!JRIAyj Theteis no merit in the claim o1;theJi.belantforthe detention of his vessel at'Richmond. He was aware 01 thia:htm'Self, did not assert 'any Buch' claim in his, conversations withrths:resptmdents, bUtimisted upon compensation for the detention at Poughkeepsie.; The respo.-idents, recognizing for the detenti0l1' at F()ugh keepsie, tried to induce him to accept $100 in full. He refused, and they handed him a check for $125. When he read it, and saw the amount, he told them it would not satisfy the owners; but they insisted upon his keeping it, telling him, if he found it did not satisfy the owners, to return it; and he replied that he would sue,them. Not only did he not promise to accept the check in full settlement, but he did not expressly promise to return it. If his conduct led tbem to suppose'he would return it before suing them, they have lost nothing by his oPt,ission to do so. Even if he had expressly promised to do so, his subsequent neglect" or reftlsalwould not afford the respondents a defenl!e;"'He was entitled to a much larger sum; and nothing short of an accord ilnd satisfaction. or the acceptance of the check as a discharge in full, is a release. Thedecree isJtffirmed, costs of this court to eitherp$rtY,bbth parties having appealed, and the cause is remanded to the.circuit court with in. structions to enter a decree accordingly, with interest.
q

. THE

LYNCH

FRED. JA1;i,SEN.

nl.

fl.

THE FRED. JANSEN tit' til.

(Circuit Court qf Appeals, Second Ci,'CUU. .January 18,1898.)
eou.rSION-B,uLAND TuG' WI,",

Tow. The'schooner T. was going westward through East river. at flood-tide. keeping close to the eastern shore of Ward's island to avail herself of the slack-water. The wind died out as she reached Negro point. and here she was overtaken by a tug a schooner on a hawser of about 800 feet. The tug' passed on her port side at a distance of from 40 to 150 feet, but, as the T. struck: the tide; whloh here sets strongly towards Long island, she sheered to port, and struck the tow, though she put her wheel hard a-port, and dropped her main peak. Relit, that the tug was 801ely in fault, as it was her duty, as an C'vertaking vessel, to take sumoientroom for a safe passage. 44 Fe,d. :Rep. 773. reversed.

Appeal' from the Circuit Court of the United States for the Southern District of New York. In Admiralty. Libel by Daniel I,yneh and others against the steamtug Fred. Jansen for collisioQ. The libel was dislnissed in the district court, which decree was affirmed by the circuit court. Libelants appeal. Reversed. . Edward D. McCarthy, for appellants. Wm. W. Goodrich, for appellee. Before WALLACE and LACOMBE, Circuit Judges.