240

,:;<

....

FEDERALiREPORTER,

vo1..57·

patch, the district court correctly awarded demurrage to the libelant. Such award, however,was without interest, and the refusal to. allow it ie'assigned as errorby the libelant.. Upon this point the decisions of the eastern and of the southern districts of New York are not harmonious. The .AleKandria, 10 Ben. 101; Johanssen v. The Eloina, '4 Fed. Rep. 573; The J. A. Dumont, 34: Fed. Rep. 4:28. It is to add anYthing to':the discussion of the subject contained in those opinions. The amount of the demurrage is liquidated by the contract. Claimants stipulated to pay it day by day, in case the vessel beyond the stipulated time. It was their duty to pay it when they so detained her, and to pay it day by day fo;r,each day of suchdetention,as they contracted to do. The master of the Tiverton demanded daily the -amount due. In similar follows recovery, and there lsno adequate reasOn why.demurrage sh()Ulq:. be subject'to. any rule. The decrlreof the wstdct, <lourt is reversed, and cause remanded, 'With instructions'to decree in favor of the libelant for demurrage, as found 'bySaid Murt, with interest thereon from date of demand, and costs of the district court and of this court.

In: re MYERS EXdb'ItSION &NAVIGATIONOO.
(District Court.lil.. D. New York.

1.

SHIPPING':"'LIMI'l'ATION

July 7. 1898.)

OF LtABILITY-Exo"tJRS!ON BARGE.' A b!J..rge without motive power, which is used for transporting excursion parties on New Yo;rk ,llarbor and adjacent waters, Is within the Umited liabiUtyJICu; of the Unite!! States. .' 2. SAME-BARGE WITJIOUT MOTIVE POWER MAy BE SURRENDERED WITHOUT
TUG.' . " '.' ,

A barge without motive power,. wlJichisused for carryingexcurslon parties al1outNe1V York barbor and a4jacent waters, may Qe, surrendered by her owners. lwder the limited liability acts of the United States, without the s,urrender. of the tug towing the barge at the time of the loss. though the titgbelongs to the Slime owners. .
S.

SAME-UNSEAwoRTntNEss VIOLENCE. . CAPACITY TO WITHSTAND STORMS OF ORDINARY

A barge Psed to carry excursion parties on New York harbor and neighboring waters is, unseaworthy when not in, aconditlon to withstand without serious illjury to her passengers the violent thunderstorms which are of frequent eccurrence in that locality. Where the Ullileaworthy condition of an excursion barge would be shown by a proper examination, her owners are charged with knowledge thereof, and any injUry 'to passengers resulting therefrom Is not without the "privity or of the owners so as to entitle them to the benefit of the limited liabillty :acts of the United States. .

4iSAME:-'OWNERS' CB:ARGED wn'H KNOWLEDGE-LIMITATION OF LIABILITY.

In Admiralty. In the mitter of the petition of the Myers Exc).lI'sion & Na,rigatiop. Company for limitation of liability as owners Qf the barge R¢Pll1,llic. Petition d1smissed. Wing, Shondy & Putnam, for petitioner. Raphael J. Moses,: Jr., Fernando Solinger, and George W. Cottrell, for respondents.

IN RE MYERS EXCURSION & NAVIGATION CO.

241

BENEDICT, District Judge. The barge Republic was hired, under an excursion contract made on March 2, 1891, to convey an excursion party to Cold Spring grove and back to New York on August 12, 1891, for the sum of $260. The barge, in pursuance of that contract, on that day took on board the excursion party, and was towed to Cold Spring grove by the steamboat Crystal Stream, owned by t1he same owners. Early in the afternoon the barge reached a wharf on the east side of the harbor at Cold Spring grove, where she was made fast to the end of the wharf, the port side of the barge being next to the wharf, and the Crystal Stream being fast to her upon her starboard side. Just as the barge was about to leave the wharf on the return trip, the excursionists being on board, but the lines not cast off, a thunderstorm came up from the we£:ltward, striking the barge on her starboard side. By the force 'of the wind, the ropf of the hurricane deck on the starboard side was raised off its fastenings and doubled over against the two masts of the barge and tlJ:J.e pilot house. The pilot house turned over, the two masts broke, and these masts, together with the broken portion of the hurricane deck, fell upon the other side of the hurricane deck, which was thereby crushed down upon the passengers collected underneath it, and 13 of the passengers were in this way killed. The owners of the barge, being sued for the injury to these passengers, filed their petition in this court to have their liability limited, and surrendered the barge to the custody of the court, In their petition they set up that the injuries to the passengers alluded to were not caused by any negligence on the part of those owning or in charge of the Republic, but to unavoidable accident. The following objections are raised to the granting of the relief l"rayed by the petitioners: FIrst. That the Republic was not a vessel intended to be embraced in the limited liability acts. In my opinion, this objection is not well founded. As I understand the limited liability acts, they were intended to relieve from liability barges engaged in any kind of navigation, and they cover the barge in question. The next objection taken is that the tug Crystal Stream, being the motive power of the barge Republic, should also have been surrendered. This objection is without foundation. The petitioners do not seek to limit any liability they may be under as owners of the Crystal Stream, and there is nothing in this proceeding to prevent the parties injured from proceeding against the Crystal Stream or her owners, if so advised. The third objection is that the Republic was unfit for the em· ployment in which she was engaged, and that the injuries sustained by her passengers were due to her unseaworthy condition. Upon this question a mass of testimony has been taken, both in regard to the force of the wind and the construction and condition of the barge. After a careful consideration of the testimony relating to the effects of the wind on other objects near the place where the barge was when struck by the wind, and the evidence tending v.57F.no.l-16