382
FEDERAL
other than the place where it was put. The agent of the ship knew, when the molasses came to, the ship, that the ship was full. When, therefore, as the evidence shows, he told the stevedore that this molasses would finish her, without indicating any desire that the bacon should be broken out, that was equivalent, under the circumstances, to a direction to the stevedore to put the molasses over the bacon, and relieves the stevedore from responsibility for damage arising from the selection of the improper place for the stowage' of the molasses. It is said that the stevedore made no attempt to protect the bacon from leakage of the molasses by tarpaulins or otherwise. This is also there is no proof ,that the ship-owner furnished the stevetrue. dore with tarpaulin, or any other means; for protecting the bacon from the leakage of t4e molasses, which he knew was most, liable to arise. It is not proved to be, nor do I understand it to be, a part of a stevedore's contraot. to furnish slloh proteotion from mO,lasses as the stowage of the baoon required. The ship's owner knew where the molasses must go, and it was incumbent on him. if he desired tarpaulins or other ext!;ap.rdinarypreventives used, to furnish the same to the stevedore. "Nor can responsibility" to the Ship-owner for the result of the owner's failure to provide tal'paulins, or the like, result from the stevedore's omission to askfor tarpaulins. Extraordinary protection it was as well known to the ship-owner as to the was necessary.. stevedore. Itwaa therefore the duty of the ship-owner to provide the stevedore with the means of protection to the bacon. if extraordinary protection was desired. My conclusion. therefore, is that the recover of the stevedore the money he was compelled to' pay tPEl owner of the bacon for the damage the baoon received from molasses during the voyage of importation. The libel is, dismissed, with costs.
THE FOOTE
CEPHALONIA.1 FELTY
v. THE CEPHALONIA. SPARKS V.SAME. EASEMAN V. SAlIfE. v. CUNARD STEAM-SHIP Co. GREEN V. SAME. (lJiBtriet Oourt. liJ. D. New York. July 9, 1886.)
COLLISION-STEAMER AND TuG-OVERTAKING VESSEL-Loss OF LIFE AND PROPERTy-LIABILITY.
The tug Glen Island, while, proceeding down the bay of New York, was overtaken and run down by the steam-ship Cephalonia. of the Cunard line. The tug was sunk. and several lives were lost. Prior to the collision the tug did not alter her course. On suit brought against the steam-ship to recover for the loss of life and property, held, that the Cephalonia, as the overtaking
JReported py R. D. & Wyllys Benedict, Esqs., of the New York bar.
'tHE CEPHALONJA.
333
vessel, was bound to have avoided the tug; that the fact she blew whistles in time to enable the tug to get out of her way did not furnish her any excuse for the collision; and that she was solely responsible for the collision.
In Admiralty. Butler, Stillman tt Hubbard, for William H. Foote. Hyland tt Zabriskie,for William Sparks and Mary E. Felty. Carpenter tt Mosher, for Oliver Green. Owen tt Gray, for the Cephalonia and the Cunard Steam-ship Co. BENEDICT, J. These actions, which were tried together, present the question whether the sinking of the tug Glen Island by the steamer Cepbalonia, on the morning of February 27, 1884, and the consequent loss of life and of property, arose from faulty management of the steamer, or by faulty management of the tug. The accident occurred in brood daylight. vessels were bound down the bay of New York. The tug was proceeding down the bay. The steamer was behind and overtaking the tug. The tug was seen by those in charge of the steamer. When about half way between Oyster island and Robbitts Reef light, and in plain sight, she was run. over and sUll'kby1 the steamer's stem striking the stern of the tug, and capsizing her. Of course, the burden is upon the steam-ship to excuse herself. The excuse she makes is that the tug suddenly attempted to eross the course of the steamer, and in so doing threw herself so sulidenly under the stea.mer's bow that it was impossible for the steamer to avoid her. The testimony fails to prove this defense. It is, no doubt, true that, at the moment of capsizing, the tug lay partly across the steamer's bows. That was caused by the fact that, when the steamer struck the tug's stern, the weight of the steamer turned the tug around in the water, and so brought part of her under the steamer's bow. But it is not proved that there was any change in the direction of the tug's course which brought her under the steamer's bow. That the tug had, before the steamer appeared,deviated from a straight course, avails not to excuse the steamer. That fact is entitled to consideration in determining whether, when the steamer approached near to her, the tug changed her course; but it is not sufficient, in the face {If the testimony to the contrary, to justify the conclusion that the tug changed her course at the moment of the collision. The cause of the collision doubtless was the wrongful assumption on the part o.f those in charge of the steamer that the tug would be aware {lfthe approach of the steamer from behind, and, when the steamer drew near, get out of her way. As it happened, the tug had no knOWledge of the presence of the steamer behind her until collision was inevitable. The assumption upon which the steamer was navigated accordingly failed, and the collision was the result. If, as proved, the steamer gave the tug whistles in time to enaNa the tug to get out of the steamer's way, the case of the steamer is not helped. The duty of the tug, whistles. or no wpistles, was to hold
334'
FEDElUL' REPORTER.
her c09rse.':!t was no part ,of her duty to get out of the way of the steamet nipproached the tug frqtrl behind, the tug held her course, she discharged all her duty; and that was what she did. While in performance of that duty, she was run over and Bunk by the steamer. No doubt'Clin be entertained as to the liability of the for the damages .that resulted. Decrees must therefore be entered in the several cases in favor of the libelants, with an order' of reference to ascertain damages.
THE AUGUSTO.'
GUDEWILL
v.
THE AUGUSTO.
(DiBtrict (Jourt. E. D. NeuJ York.
Julv 18,l886.l
OAItRIERlJ-..,.()J' GOODS..- SHIPS ..- STowAGEl - OPBNING BALBB FOR PURPOSEIS OF STOWAGB:-:OONBEQUENT REDUCTION IN VALUE-LIA13ILITY.
Oertain bales of cork-wpod were shipped in good order,on board of the bark AugUsto. While on board, some of the bales were opened, apparently for of stowage. In rebaling, woods of different si:z;es and quality were so mixed ssto reduce their market value. The consignee refused to give 8 receipt for the same in good order, whereupon the ship·owner sold the goods. On snit brought by the consignee to recover the sound value of the goods, less the freight on the whole shipment, held, that libelant should recover that value.
In Admiralty. Hill, Wing it Shoudy, for libelants. Ullo, Ruebsamen cf Hubbe,for claimants. BENEDICT,J. Certain bales of cork-wood and cork were shipped in good ()rdet()n the bark Augusto. While On board ship 62 bales were opened by cutting or otherwise, apparently for the sake of stowage. In rebaling these 62, woods of different sizes and qualitywere so mixed as to cause a serious reduction in the market value of the goods so mixed. The ship refused to deliver these 62 bales except upon receiving a receipt for the same in good order. The consignees refused to give such It receipt, and thereupon the ship-owner sold the goods. The consignee now, by this action, seeks to recover the sound value of these 62 bales, less the freight on the whole shipment. The Eihip rests her defense upon the fact proved that, subsequent to the origitlal demand of a receipt in good order, she offered to deliver these.. bales, subjeott() the ship's lien for freight. In reply. the libelants olaim that, upon sending the reoehringelerk, O'Brien. to theahip for goods, in accordance with the offerto deliver sube I
Reported liyR(D. & Wyllys Benedict, Esqs., oftha New York'bar.