OBmNoVIan
tI.
STEAK-TUG AMERIOA.
887 '
person to whom the original patent was granted, name was John Denehfield, was the person to whom the re-issue was granted. Such proof is always competent ina. case like this. Jackson v. Stanley, 10 John. 133. See Northwestern FireE:ctinguisher Co. v. Philadelphia Fire Extinguisher Co. 6 O·.G. of Pat. Office, 34. Infringment of the first claim of the re-issue is proved, and not contested. As the patent has expired there can be no injunction, but the plaintiff is entitled to the usual decree, in other respects, in regard to said first claim.
OBHANOVIOH, Master of the Bark Rebecca, AMERICA.·
t1.
THIll STEAM-TuG
(Circuit (Jowrl, E. D. Pennsylvania. October 28,1880.) 1.
ADMIRALTY-CoLLISION-ToWING-ORDER IN WHICH VESSELS SHOULD Blll TOWED.-A tug held responsible for damages by a collision between two vessels in tow while passiJ'lg through a narrow, shallow channel, where it appeared that one Of the vessels was known to be a bad steering vessel, and had been placed by the master of the tug behind the other vessel. 2. SAJtm-CoNTRffiUTORY NEGLIGENCE-ORDER GIVEN AT MOMENT 0.. IMMINENT, PERn..-The injured vessel held not to be liable for an order given at a moment of imminent peril, caused by the bad steering of the other vessel. S. BAJtm-DAHAGE-BILLS FOR REPAIRS- WHEN PRIMA FAcm EvtDENCE.-Upon the question of the amount of repairs necessitated by a collision, the testimony of the master as to the aggregate cost of the repairs, and the testimony of the vessel's agent as to the payment of the bills, together with the production of the bills receipted, constitute prima facie evidence of the amount of damage, without calling the men who did the work. 4. tillm-Loss BY DETENTION-RATE 011 DlllMURRAGE-WHlllN PRIMA FAcm EvmENClil.-Upon the question ofdamages by detention while undergoing repairs, the rate of demurrage fixed by the vessel's charter-party, accompanied by evidence that it is the, rate adopted by th,e maritime exchange of the port, is prima facie evidence of the amaun' of loss. .
Appeal from the decree of the district court, in admiralty. -Reported by Frank P. Prichard, Esq., of thO' Philadelphia
v.4,no.4-22
.838
REPORTER.
Libel by' the waster of the bark Rebecca. against the steam-tug America, for damages caused by collision with anbark while both vessels were being towed to sea by the tug. The facts in regard to the collision are fully set forth in the opinion of the court. The district court decided in favor of libellant, (see report of case, 36 Legal Intel. 279,) and referred the case to a. commissioner (Wayne MacVeagh, Esq.,) to ascertain the amount of the damage. Before the commissioner the master testified as to the aggregate cost of the repairs. The agent of the owners then testified that he paid the various bills for repairs, making up that aggregate, which bills, approved by the master and properly receipted, he produced. He admitted, however, that he had no personal knowledge that the repairs had been made. The persons who did the work were not called. The respondent declined to take any testimony on this subject until the libellant had offered better evidence, and asked the commissioner to report that the· evidence offered was insufficient. The commissioner reported that the was prima facie sufficient, (citing Coote on Adm. Pro 96,) and allowed the amount claimed. With regard t'o the damages caused by the vessel's detention, it appeared that the rate of demurrage fixed by her charter-party was £15. It was proved that this was the rate adopted in charter-parties used by the mal·itime exchange of Philadelphia. The commissioner (citing Coote on Adm. Pro 87) held that this was prima facie evidence of the loss, and, there being no evidence to show that it was unreasona· ble, adopted it as the measure of damages. The district court confirmed the report of the commissioner, and entered a decree for libellant in accordance therewith. See report of case in 8 Weekly Notes, 328. Respondent took this appeal. J. Warren Coulston, for appellant. Henry G. Ward and Henry Flanders, for appellee. MoKENNAN, C.J. The master of the steam-tug America contracted with the master of the bark Rebecca to tqw her to Bombay Hook, or to sea, from the port of Philadelphia, with the understanding that an additional smaller vessel might betaken in the tow.
OJUUNOVICH t1. STEA.lI·TUGAHEBIOA.
889
'On the first of December, 1'877, the Amarica took the Re1?ecca in tow and proceeded down the Schuylkill, and at the mouth of that river took also in tow the bark Dudman, which was of two feet less draught than the Rebecca, but of wider beam. The tow was made up by placing the Rebecca next to . the tug, and the Dudman in the rear of the Rebecca, to which she was attached by a hawser. This arrangement of the tow was made against the objection of the master of the Rebecca, who desired his vessel to be placed in the rear. The Dudman was known to the of the tug to be a bad-staering vessel, and in going down the Delaware river she steered wildly, sheering from side to side. When the vessels approached the channel buoy, at the bight of Newcastle, where the Delaware river is narrowest, the pilot of the Rebecca put her helm hard a·port, in order to bring her in line with the government range lights, and pass in mid-channel, just to the eastward of the buoy, the tug pursuing her course unchanged, keeping on the port bow of the Rebecca, eastward of the channel. ;r ust at this time the Dudman, having taken a sheer to {the westward, drew the Rebecca out of her properC'ourse. throwing her head to the eastward,. so that, with the helm hard a-port, she kept going to port, instead of starboard, until she grounded on Goose island bar. When the Rebecca went aground the Dudman's sheer to the westward was broken, and she pulled around to the eastward again. At this time the pilot of the Rebecca hailed the Dudman to put her helm hard a-starboard, and immediately thereafter she struck the Rebecca in the port center, causing the injury complained of. lt is obvious that the collision was the result of two causes -First, the very bad qualities of the Dudman; and, second, the arrangement of the tow with the Dudrban in the rear.n, by her ready obedience to her helm, she had been under the control of her pilotJ or she had been placed ahead instead of behind the Rebecca, the collision would not have occurred. The master of the tug well knew that the Dudman steered badly, this was made manifest· in the passage down the Delaware, and he: ordered the l'tilativ'a:positions 6f the vessels in the tow. Was tha collision,·theI1, avoidable' by
of reasonable skill, and cale on the part of the master of the tug ?This question is clearly and concisely answered by the district judge in his opinion, which 1 adopt: "Was there carelessness in taking the Dudman along? If, - as alleged, her steering qualities were so bad as to render her virtually unmanageable in the river, and the respondent was aware of this, there was. That she was a· bad steererindeed, very bad-is abundantly shown. The witnesses agree respecting it. The master of the tug says she 'steered badly; sheered all over the river going down, first on one quarter and then on the other of the Rebecca;' and the mate of the tug says she 'steered wildly going down the river.' Captain Wilkins, called by the respondent, says she steered so badly that it required two boats: to take her down the Schuylkill; and when the respondent ;met and took her in tow on this of occasion .shewas being thus conducted by the joint two tugs·. That the respondent was aware of her peculiarity in this respect is equally <llear·. He had towed her before, and knew she steexed badly; he so testifies. It does not appear that he .towed hel'in company with another vessel before. this occasion, or attempted to do so; and, if he had been without such previous knowledge, what he observed in passing down the river soould warned him of the danger of taking such a tow through the narrow, shallow channel near Newcastle· ."And while a proper regard for the libellant's safety forbade taking the Du<iman along, in my judgment it especially forbade taking her astern oj the libellant's vessel. Without considering the order in which two vessels of unequal draft, with proper steering capacity, should be placed in a tow, (about which decided opinions were expressed by the court in Morton, 1 Brown, Adm. 139; The Zouave, Id. 110; and The Sweepstakes, Id. 509; though practical seamen, as the evidence here shows, seem to disagree respecting it,) 1 feel no hesitation in saying that to place this unmanageable craft behind, in passing through a narrow, shallow channel, was calculated to produce disaster. The width in the bight, at places, does not exceed 70 yards, and the depth, with the tide as it was
OIUlANOVIClB .t!.
[AMERIOA.
at the time of the accident, is 22 feet. dra.ught.of):the Rebecca is feet. As obedient to her wheel as sha is shown to be, she would respond very ta.rdily whenwithip a foot and a half of the bottom, and find !lome difficultyjn, controlling her course. With the Dudman wildly tugging at her stem she would be helpless, very likely to ground, anl;1. be run into by her unwieldly companion. And this is. precisely what occurred." . This is enough to show that the master of the tug did not exercise that degree of good judgment and forethought which a careful discharge of his duty, under the circumstances, demanded, and tQat to his dereliction in this regard the loss complained of is ascribable. Nor. amI able to affirm the contention of the respondent that the Rebecca responsibly contributed to the collision by the order or request communicated by her pilot to the Dudman, just before the vessels came in contact, to put the helm of the latter hard a-starboard. Under all the circumstances, the effect of such a maneuver was, at proble'tnatical;the opinion of the witnesses as to this llecidedly differs,-but it is sufficient to say that, even if it was a mistake, no fault can be imputed to the Rebecca, because it was given at Ii. moment of imminent peril, caused by the. misconduct of the Dudman. There ought, then, to be a decree in favor of the libellant; but fo;r what sum? The commissioner, to whom the ascertainment of the damages was referred by the district court, reported the sum expended for repairs to the Rebecca; and the damages resulting from the loss of her use, upon. the basis of the demurrage stipulated for in her charter-party, and for these sums, with other proper allowances, the decree of the district court was made. But it is contended that these claims were allowed upon insufficient or improper evidence. Payments were made to persons who rendered bills for repairs made upon the Rebecca, which were certified by the master, who superintended the work, by the agent of the libellant. This was pz:imary proof of the expenditure, of its purpose and its necessity, and,
349
FEDERAL REPORTER.
unless a.nswered by counter proof, was altogether sufficient to justify the allowance of 8ueh payments. So, also, as to the damages for detention of the vessel. Demurrage, as such, IS not claimable; but why may not a rate of demurrage, fixed by the vessel's charter and established by the rules of the maritime exchange, and whieh, therefure, 1Vould have been conceded to her if dela,yed by her charterer, be taken as a measure of fair compensation for a similar loss caused by the act of a wrong-doer? I think the commissioner rightly received the evidence, and that it justified his conclusion from it. There must be, therefore, a decree in favor of the libellant, a.nd against the respondent and his stipulator, for $1,973.04, with interest from December 15, 1877, to this date, and costs.
CLAYTON
and others v. THE SOHOONER ELIZA. B. EMORY New Jersey. November 10, 1880.)
(Oi'rlJuit Court, D.
Appeal by libellants from the decree of the district court in admiralty. Fla.nders 0: Grey, for libellants. J. Warren COllJ!.sfon, for claimants.