,690
FEDERAL REPORTER,
vol. 40
THE .FRED H. CLosE
RICE. l
et al. 1'. THE FRED H. RICll;.
(DI.8trl.ct Oowrt, S. D. New York. DecemberJ8, 1889.) BBIPl'INo-D.uuGlD TO OABGo-.:.STRANDING.
A schooner bllund"from Mattawan to New York, took the more difficult oourse through the ihllliJnstead of outside and through the Narrows. While beating through ,theA-ill van Kull she was overtaken and passed by a tow, to avoid which she lulfed,lolt her headway, and was carried by the eddy tide on the rocks, and damaged her cargo. In an action by the owner to recover for such damagehheW, that the schooner took the additional risks to be expected in the passage of t 6 Kills; and. as the ohannel whereahe went ashore was wide enough for her to have kept ofCtbe rocks, notwithstanding the presence of a passing towJ and as the tii;le and the eddy were well known; tbe stranding waa not unavoidaDle, and the schooner waa answerable for the damage. .. ,
In Admiralty. AQtion for damage to cargo, by alleged negligent stranding. Halcyr:m. M. Close, for libelant9. A. B. Stewart, for. claimant. BROWN, J. The libel is filed to recovel' damages to 11.', cargo of brick loaded on the schooner F. H. Rice, through the stranding of the schooner near Constable of the Kills,in November, 1888. The schooner had sailed from Mattawan, and, as the libelants contend, should' have taken the 'through the :Narrows, instead of coming thl10ugh the Kills,where the passage is more hazardous, through the narrowness of the channel and the greater liability to' obstruction by long tows. TheweMher was good, and there is evidence that in such weather the passage by the Narrows is!the most usual course. The ter's testimony'lstO the effect that the wind was northeast, and that in ,beating out of the Kills he was overtaken byatug l having a tow upon a hawser, in ,all some seven or' eight hundred feet long; that he had passed in front of the towupon\ sev.eral tacks, going· on his last tack to .the north-west,about 100 yards: in front ofthe tug;! that when; he after.wards tacked towards the south-east he was unable to proceed without runninginttdhe tow, arid therefore'luffed, and,lOsing his headway, ,dropped but· was carHedby the eddy tide on the rocks on the north shore. Ii cannot accept ,thisaccountassuflicient to throw upon the cargo the; damage occ8.sioned by stranding. In .selecting the more hazardous passage ·of the Kills; instead of going by the Narrows, the master took the-additional risks to .be expected in the Kills. He had .full notice oithe course ofthetowl's.nd, if the tow was so far on the northerly side of the. channel as: to leave· insuffiCient room to naVigate .the schooner, be :should not· have crossed the' tug's course IQn the previous ·tack,but have ,kept ()n .the; 80ntht'1'1yside. " The channel there·, &:s shown both by the chart and in cases often before me; ·waswide enough 1 Reported
by Edward G. Benedict, Esq., of thll New York bar.
DAN.
691
to keep the vessel off the rocks on either side, notwithstanding the presence of a passing tow. Theqourse of the tide and the eddy were also well known, and it was the business of the schooner, at her peril, to navigate with reference to. them. There is no probability that there was any material change in the course of the tug to the northward, to the prejudice of the schooner. The tug's proper course, for quite a distance beyond the point of stranding, was nearly in the center of the channel, in order to pass to the southward of the buoy at Robbins Reef light. The mistake of the schooner was-First, in unnecessarily taking the greater risk of a passage by the Kills; 8econd, in crossing the tug's course to the northward, if the tow was on the northerly side of the channel; or, third, if the tow was not on the northerly side of the channel, in running 80 far into the eddy tide and not luffing, and in not dropping anchor sooner, fl.nd lowering her sails before getting near the rocks. There is no fault on the part of the cargo. I cannot find the stranding unavoidable, and the schooner must therefore answer for the damage.
THE DAN. STEAM-SHIP Co. CARL t1. HAGEMEYER. HAGEMEYER
et al.
t1. STEAM-SHIP
Co.
CARL.
(Df.8trlct OO'u/rt, S. D. New York. December 00, 1889.)
L
SBIPPING-DAMAGB TO CARGo-ClURTERBD VESSEL-COMMON CaRIEIL
A chartered to transport a specUlc cargo only is Ii.Ot a common carrier, and hence is Dot an insurer of the safe delivery of the cargo, and can be held for damage to cargo only on proof of negligoen!J6.
9.
SAMB-NEGLIGENT STOWAGE-FoREIGN VESSEL.
A vessel;.1oaded in a foreign port cannot be charged with negligence in stowing cargo if she bas employed all the known alld usual precautions to insure safe transpOrtalton whioh the nature of the cargo requires, having reference to the usages of the foreign country, and the praotice and state of knowledge 88 to loading there prevailing. . The steam-ship D. delivered a cargo of grain which she had been specially ohartered to transpot't, and. part of whioh was damaged throu/{h contaot with an iron bulk-head between the cargo and the engine-room. The eVldence showed that the construction of the ship was not unusuaf at Copenhagen; that the grain was stowed in accordance with the custom of Copenhagen, where this cargo was loaded; and that a practice of sheathing the iron bulk-head with wood, the lack of which in this case was the negligence complained of, is not in use in Denmark, and only to a limited extent in New York. Held, that the ve88el was liable only for negligence, under the oircumstances of her employment, and that no negligence was proved, the shippers apparently acquiescing in the stowage; but, on the meager evidence as to .usage at the libelant for damage to cargo was allowed to dis continue without prejudice, and the vessel \V88 held entitled to her freight in full.
8.
SAMB·
In Admiralty. Oross-suits for freight and damage to cargo. Wing,Shotidyc!c P-Ufmam, (0. O. Burlingham, of counsel,) for the steamlIhip company. H. D·. H()tchki88, for cargo. by EdwIll'dG. Benediot,.Esq., of tbeNewYllrkbar.