CALISTA' IUw'1!lS.
the catgourider the hatches by saying that they were compelled to retrim the cargo at sea after heavy weather, and in so doing left the sulphur under the hatches in the condition it was in on arrival; and their testimony is sufficient to overcome the not very probable suggestion that the three hatches of the bark were opened during the voyage, and sulphur shoveled out of each hatch to the amount, in all, of 28 tons, and the same placed on board some other vessel supposed to have come along-side the bark for that purpose. Certainly it would be improper to infer that such a transaction had taken place from the mere appearance of the cargo at the time the hatches were opened in New York, in the face of positive testimony that tio Buch thing was done. But little support to the merchant's case is obtained the testimony that, when the hatches were ,opened, the mate falaely stated that sulphur had been thrown overboard during the voyage. converse&. The mate could speak very little English, aiidthose ,with' him' could not understand Italian, .and Iltmndt'certitintliii.t' he alluding to' 'was understood. '!t is. quite likely that he had been castout by the pumps. ' '" ., , My conclusion, therefore; is that the non-delivery of Bulphur charged by the merchant has not been proved. The result is that the libelof the merchant must be dismissed, with costs, and the libel fortha gratuity mustbe,sllstained. , ' , { n ,': . ' " '". " , . ..
To
CALISTA: HA
(Disflricf Oourt, Eo, ;D. N8'UI York.
Decemoer 4, lil82.t
,! ':
N"Jr.aLIGENCE IN HOlllTING ,BARREJ..-,PERBONAL b:JURy-L,u.BILl'fY. ',,"
W!lere an United States weigher, whol!e duty vessel's cargo whiie it was heing discharged, was required to be about t46 mai,n hatch on the main deck of the vessel, and the mate undert6ok'to h6iStil. baltel from pier on ,the oppoa,ite ,side' tpe -vessel from that on ,thq 'Cflrgo tAe fa.Il e'fIlpl0y'ed .to rajse tb.!! , ftom the hold, WhICh was so arranged tilat. the harrel was swung' acroSs ,the Ide,ek in spite of 'the efforts of'twomen'st,ationed ('n the: rail to aBBistjn getting ,_ to ;w4Qe so who, ,standing on the deck with his, back the. him over thecombin'gs of tae hatch into the'low.e'r' hold, no \varninghav'ing been given him in ;to enahle' him to 'move, he!(J" it'hat' the) libelant's injuries arose' frOID. a nllglect on; the pari of the owner of the ship /q ·
,'*li.epQrt(,d by'R.'D.'" Wyllys Benedict'
494
"J'JilDBBAL BJill'OBTBB.
a,'duty arisingpn naVigable water out the employment of the ship 8S an instrument of commerce, and, oWing to the libelant, and that the vessel was liable for the injuries resulting, and there must be a reference to ascertain the amount.
In Admiralty. Beebe, Wilcox Hobbs, for libelant. Butler, Stillman IX llubbard, for the vessel. BENEDICT,
D.. J.
The facts of this case are not in doubt:
The libelant, ,William G. Vance, was an assistant, United States weigher, whose duty it was to keep tally of the cargo of the ship Calista Hawes, while that vessel was discharging her cargo in this port. 'fhe cargo consisted of h:On ol'e, and was discharged into a lighter lying along-side the ship on her starboard side. The libelant, in order to a proper discharge of his duty, was reqUired to be about the main hatch upon the main deck of the vessel. During a short cessll/;ion ,of the discharge of the cargo, the mate of the vessel to raise from the pier On the port side of the vessel to the deck of the! a barrel of tar. He used for this purpose the tackle and fall employed'to raise the cargo from the holl;i. This tackle and fall were attached to a span rigged to the mastli over the main hatch, the span being fastened by a guy-rope on thE' starboard side, so that it could not swing to port, but, would raiseth& weight over the center of the hatch. The mate, witbout .loosing tl!e guy by \\'hich the span was guyed tostar:board, carried the faU of the, $hip to the pier,and then attached it to the barrel of tar, and by horse-power raised the barrel above the rail. No guy-rope had been attached to the barrel, but two men were stationed on the raiIto assist in getting the barrel to the deck. The result of this method of proceeding was that the barrel, when raised by ,the horse, as soon as it cleared the rail, and in spite of the efforts of the men on the rail, was pulled by the power of the horse across the deck from the rail to the hatch. At the time the barrel was thus pulled across the, deck, the libelailt and another man were standing on the deck between the rail and hatch near to the combings, with their backs to the rail anddirectly'in the course ta'ten by the barrel. Both men werestruck by the barrel as it passed across the deck. . One was not injured, but tj:le l;belant was' knocked over the combings of the hatch and into the lower hold. '. :No wa.rnihgwas to the libelant in tiine to enable him to move frqmhis position. ,
Uponthese facts the liability of the ship is clear. The libelant's inJuries arose fro!Il a neglect on the part of the owner of the ship to. discharge a duty arising on navigable water out of the employment of; the ship as an instrument of commerce, and owing to the libelant. r.I:heIllatewa,s in ofthe ship. His neglect was in law the negleQt of, O'w.l).er. ,It was the duty.oftbe mate so to hoist the bar'reI as to prevent it from being pulled by the power, of a horse across the deck where the libelant was standing. This duty was negleoted
whElI). the batielwas hoisted with the span so guyed :that the barrel, raised by the. power of the horse above the rail, would be drawn by the same'power out of the,hands of the men on the rail and across thEl deck. 'fhe duty thus neglected arose upon navigable ,water, out of the employment of the vessel as an instrument of commerce. The case is similar: in principle to the case of The Kate Oann, decided by this court and ,affirmed by the circuit court, 9 FED. REP. 241; 8 FED. REP. 719. The libelant was guilty of no negligence. He was standing where he had the right to stand in the discharge of his official duty. If. he could be chargeable with knowledge that the barrel was being hoisted from the pier at that place, he' had the right to assume that it would not be pulled across the deck where he was, and no notice to ,the oon· trary was given him. There must, therefore, be a decree in favor of the libelant,with order of referenoe to ascertain the amount.
THE FRANOISCO GARGUILO.-
(District Court, E. D. New Y01'Je. 'December,?, 1882.\ PILoTAGE-TENDER 011' SERVICEB--8TA'!'E STATUTE.
A pilot who brought a vessel into the port of New York froml!ea beca.me entitled unders. state statute to her to sea when she next left ti\e port, by himself or one his boat's company. The master of. ",essel ammged with the pilot to meet him at a. certain time and place. whence they were to go on board the vessel together. The pilot preSented hbuself at the time and place , appointed; the master did not appear, but went on board and to s6ft with. ont a. pilot. Held, that this was sufllciellt tender of his services on the, part of the pilot, without his presentin e; himself on board the, vessel. to the vessel with liability for the damages resulting from the non-performance of the ob. ligation created by the statute.
':InAdmifalty. " , Butler, Stillman ct Hubbard, for libelant. " Good1'ich, Deady ct Platt, fQrcll\imantJ '. > BENEDICT, D. J. This case comes before the court upon exceptions to the libel. The facts averred in the libel are in substance these: The libelant, John E. Johnson, being a regular licensed pilot, was employed to pilot the bark Francisco Garguilo from sea to the port (If New York, and in fact did bring that vessel in from sea. When by R. D. & Wyllys Benedict.