524

88 FED1UtAL REPORTER.

tector would have delayed making earlier and more persistent endeavors to reach her. It is said that the Protector waited until the sea somewhat abated; and this. partial subsidence of the storm makes more probable the truth of the testimony of the officers of the Rita, that she was not then drifting. The situation ·of the Rita was nevertheless one of extreme peril, in case the. violence of the storm should be renewed; and the help rendered to her was most timely and efficacious. She was rescued without loss. The value of the Protector was $20,000. She was insured for only abou1$12,000. The value of the Rita, with stores and freight, was about $5,000; and her cargo of sugar was valued at $22,727, all of which must have been a total loss had she drifted upon the breakwater. In rendering the salvage service the Protector sustained no loss; but she was exposed to some sea perils. Taking all the circumstances into account, I think an aIlowance of one-eighth of the values saved will be an appropriate, liberal and just compensation, and in consonance with the principles on which salvage awards should be based, as expressed by Mr. Justice Bradley in the passage so often quoted from the case of The Suliote, 5 Fed. 102. Of the award, one-third should go to the master and crew and the residue to the owners. One hundred dollars should be first paid to the master from theone-third, and the rest divided among the master and crew in proportion to their wages. Decree accordingly with costs.

THE VICTORIA. (DIstrict Court, S.

b.

New York.

May 10, 1898.)

TUG AND Tow-DUTY TO LAND Tow CAREFULLy-PROOF OF VIOLENCE.

A loaded canal boat was landed by the V. at night at the end of Rockland Pier. Soon afterwards she leaked so that she had to be beached. The crash of the landing was heard. The blow threw dishes from the -cabIn cupboard, and two planks were found cracked and a third sprung ,off at one end of the canal boat. Held, sufiicient evidence ot a violent land.tng to make the tug liable fOl;loss of the cargo.

This was a libel in rem by Horatio G. Craig & Co. against the steamtug Victoria, to recover, damages resulting from alleged negligent towage. James J. Macklin, for libelants. Amos Van Etten, for claimant BROWN, District Judge. There, is no doubt that tugs in nndertaking the towage of canal boats as well as of any other craft, are .entitled to assume, in the absence of notice to the contrary, that the boats are in reasonably sound condition and able to receive without damage all the usual and ordinary contacts of navigation, whether in making up or shifting the tow, or in landing the boats, ,at the piers. But this rule in no way justifies any rude, r01lg4 or .indif-

THE VICTORIA.

525

ferent handling of boats, nor absolves the tug from the duty of navi· gating with reasonable care, so as to avoid contracts that may become injurious. In every case the question of liability for damage must be determined from all the circumstances in evidence, depending on whether the blow was one of unnecessary violence, and there· fore indicative of lack of reasonable care, under the circumstances of the case. The Victoria in this case took the libelants' canal boat from the tow in mid river, a little above Rockland Lake, for the purpose of landing her at the end of the dock at that point, whence she might afterwards proceed across the river to Tarrytown. There was noth· ing in the circumstances of the wind or weather, the wind being from the westward, to make the landing at the Rockland Lake Dock at this time difficult, or in any wise different from ordinary landings at night. The tug came down nearly in line with the dock, on the last of the flood tide, and the starboard bow of the canal boat struck the spring piles at the upper corner of the dode In a few moments afterwards she was found to be leaking so badly that she had to be beached in the basin. Subsequent examination showed that two planks in her starboard bow at about the light water line were cracked, and that another plank lower down and running from the stem obliquely downwards and partly beneath the bottom, was sprung off at the lower end, so as to admit water freely. A disinterested witness inside the basin and asleep npon his boat, was awakened by the crash; and the blow was sufficient to burst open the door of the cupboard in the cabin of the canal boat and throw the dishes out upon the floor. This is certainly not an ordinary mode of landing. The circumstances seem to me to indicate very clearly a too rapid approach to the pier, and a landing altogether unjustifiable where there are no special circumstances of difficulty from wind, waves or weather. There is some difference in the testimony concerning the proper respiking of the planks of this boat that ran underneath the water line. There is some evidence supporting the captain's testimony that the boat had been respiked since she was built in 18!H; but there is no distinct evidence that more than one new spike was placed in the plank that started off. This new spike however was in the end that started off, and all the spikes both new and old in that part of the plank, were broken by the blow. It is unnecessary to make any finding as regards the perfect sufficiency of the spiking of the plank in question, since the boat is not a party to this action. I cannot avoid finding upon the evidenc!' that the contact was one of unnecessary violence, and without reasonable excuse; and that the tug is, therefore, answerable for the damage resulting to the cargo. Decree accordingly.

526

S8 FBDZRAL REPORTBa.

LINKLATER v. HOWELL et sJ.

(DIstrict Court, S. May 10, 1898.)

L CHARTER PARTy-CONSTRUCTION OJ"Du:NNAGE CLAUSE.

The provision that a charterer 'shall "furnish rattans, sapan wood and bamboos at charterer's option as much as required by the master" does not require the master to call for or use such woods when the ship already has a sufficient supply of customary· wood dunnage.

2.

SUGAR CARGO-SHORT DELIVERy-SBA PERn,s-CUSTOM-HouSE WEIGHTS·FREIGHT PAYABLE.

Of a cargo of 14,263 baskets of sugar shipped in Java, 52 were broken up or missing on delivery at New Yo):'k: of the 52, 27 could be identified by pieces; the remaining 25 were represented by a heap of small fragments. The vessel met heavy weather, and In a part of the cargo many bags had burst and there had evidently been much working and break age from rolling and pitching. .On arrival the weight was carefully taken by the custom-house authorities, less than the ordinary loss of weight as compared with that given by the bllls of lading, but considerably less than the weights taken by unofficial weighers, 15 months afterwards. Held, that the custom-house weight was entitled to superior credit as to the weight on arrival" and tha.t freight shouid be computed on that weight; that the evidence indicated a delivery by the ship of all the sugar received on board, and that the 25 missing baskets were sufficiently accounted for by sea perils and the promiscuous fragments, and that no shortage was established. .

This was a libel in personam by William Linklater against Benjamin H. Howell and others to recover freight under a charter party. Convers & Kirlin, for libelant. Bntler, Notman, Joline & Mynderse, for respondents. BROWN, District Judge. The questions at issue are whether the consignees of the sugar should pay freight according to the weight as determined by the custom-house weighers, or as indicated upon a long subsequent weight, as well as pay damages for the nondelivery of 31 baskets of sugar. I have examined the evidence and the briefs with'care. It will be sufficient to state my conclusions without a discussion of the very numerous and complicated details involved, or a specific reference to the arguments of counsel. " 1; The weight of evidence clearly establishes that the dunnage was sufficient and in accordance with the customary practice for such cargoes. .. 2. The provision of the charter party thilt the charterer should furnish rattans, sapan wood or bamboos at charterer's option "as much as required by the master" was not designed to dispense with thE' use of such ordinary wood dunnage as the ship might have, but only to require the charterer to make good any deficiencies in what the ship had by a supply of dunnage of the kinds specified, those being the kinds most easily obtainable in Java. As the ship had a sufficient supply of ordinary wood dunnage, the master had no right to demand of the charterers a supply of additional dunnage, nor did he do so; and the charterers did not offer to furnish any bamboo dunnage to be used in place of the ordinary wood dunnage, which the ship

LIlSXLATER V. BOWELL.

627

already had. This is evidence of the practical construction placed oIdhis clause by both parties. 3. The number of broken and destroyed was unusually large. The parts of 27 baskets were identified, and are thul!lspecitically ac«ounted for. Of the number mentioned in the bill of lading, 6 being noted as disputed and one being lost overboard, there remain 25 represented only by promiscuous fragments. It is impossible to say however that the large heap of debris, including the fragments of baskets so much ground up or broken as to be incapable of being put together as baskets, is not sufficient to represent the missing 25; and if the weight of the custom-house weighers is to be accepted as correct, the result shows much less than the usual loss of weight In the transportatioD of such a cargo; so there would be no sufficient ground to suspect from the absence of complete identification of all the baskets that the ship had not delivered all the sugar she had received on board. There is general evidence that she did deliver all she received except ODe basket lost in discharging. Doubtless a reasonable account must be given for the failure to deliver the requisite number of baskets in specie. Kerruish v. Refining Co., 42 Fed. 511, and 49 Fed. 280. But I think this is sufficiently done. The bark encountered heavy weather. In one gale nearly half her sails were blown away, and she rolled heavily for about 30 days. The baskets were from different districts and of different degrees of strength. When affected by dry rot they become brittle. The whole number of baskets was 14,263. The evidence shows that the principal loss of baskets was in the second, third and fourth tiers from the bottom, in the forward part of the hold. This indicates the probability that that portion of the shipment might have been in baskets of inferior quality; and when once some vacant spaces were made by the bursting of some baskets, others next to them of quality similar would be likely to be broken, and afterwards in the continuous working of the cargo dnring long-continued heavy rolling the broken baskets would naturally be more or less ground up into fragments incapable of being pieced together. The small number of only 25 that became indistinguishable except as fragments in a cargo of upwards of 14,000, seems to me in no way incredible or improbable under the circumstances proved, and not indicative of any appropriation of the baskets on the part of the ship or her crew. I think, therefore, that the broken unidentified baskets are sufficiently accounted for by the circumstances of the voyage and included in the excepted sea perils. See The \Vanen Adams, 20 C. C. A. 487, 74 Fed. 415, 416; The Sandfield, 79 Fed. 375; The :\Iauna Loa, 76 Fed. 837. 4. The custom-house weight of the sugar taken on the discharge of the cargo shows a less percentage of loss than usual on such voyages. But the testimony on both sides is strong as to the care and accuracy of the custom-house weighers; and the percentage of loss on such voyages varies greatly under different circumstances. 5. The weights taken subsequently, after 15 months' storage at Hoboken including two summers, cannot be accepted as evidence of the weight of the sugar on arrival 15 months before, superior to

88 FEDERAL R!U'ORT.Il:a.

of tlie custom-house weighers, who carefully took the thejime; certainly not,in the absence of any positive proof as the, care of the sugar meantime, and the possible causes of loss weight in the interval., , ;Fre,ight was payable on delivery to the weight. No was made to the customhouse weight at the time of dfsc'harge, but only to the failure to produce the 25 or 30 missing baskets; and the proofs, as I have said, sufficiently account for these. Had any exception been taken by the consignees to the custom-house weIght, it should have been made at the time of discharge. It is said that the cost of reweighing would always exceed any, probable error." ,If that is so, it confirms what is otherwise indicated as the practice and the understanding of both parties when freigl),t is to be paid 'according to the weight of sugar delivered, viz. that the custom-ho.tise weight should be accepted for the purpose of computing the freight due. As the ship is entitled to the payment of freight on delivery" and the consignee is not entitled to delivery except on payment of freight, if either party is dissatisfied with the official weight, should be at once taken to ascertain the true weight in order that the IiIhip may receive her freight and the consignee his goods. If this is not done, and delivery of the sugar is made and accepted upon the basis Of the custom-house returns without objection at the time, such weight should be regarded as the agreed weight, not to be subsequently set aside except upon very clear and conclusive evidence of mistake. Here there is no such clear evidence. There are too many doubtful circumstances to give the subsequent weighing any superior credit. There may have been loss during the interval of 15 months through repeated handling of the sugar, or by pilfering or theft; thE" heat of two summers in a Hoboken warehouse would naturally dry out the sugar; the additional loss of weight during those 15 months, even if the subsequent weighings were accurate, was at about the same rate only as the loss arising during the 6 months that the sugar was in the ship's hold subject to much less drying influences; and the subsequent weighing may have been less exact, the testimony being that the weights returned by private weighers are usually somewhat smaller than the returns of the custom-house weights. The libelant is, I think, entitled to the amount claimed, less the value of the basket lost overboard.
the

',,01

TRINIDAD SHIPPING & TRADING CO. v. FRAME, ALSTON & CO. et aI. (District Court, S. D. New York. February 23, 1898.)

GENERAL AVERAGE-STRANDING-FAILURE TO SUPPLY PROPER CHARTS.

steamship I. stranded on Nevis Island far outside of the direct couI'!!Ie to New York, and the line ot the sailing directions. She was not fully supplied with proper charts, ,and was directed by the owners to skirt the Windward Islands for the entertainment of passengers. Held, that the owners were responsible for the lack of charts and for the risks of the course they directed, and could not claim general average against the cargo tor the expenses caused by the stranding.