FEDEItA.LRElPdMER',)V61.41.
1fli\VBer,tahd sbdiagged dpdn'the dredge,otwhether the ship, assheapproached the dredgEl'otr a':course to westwaTd,'suddenly, and of her own accord, and there'bt brought herself in contact with the dredge. Upon this questioll the weight of the evidence seems fume to be in favor of the ship. Inmy (\pinion, the collision arose from the attempt of the Vosburgh topassfrmn:theeast to the we$t side of the dredge, when so near tliedredge that the ship, while following the tug, brotigllt; up upon the hawser leading aft from the dredge. ,The case contains much testimony' going to show that for a mile or more below the dredge the course of the tug was to the west of the dredge, but estimates of distances in the night are nlways nnc-erttrin, and there is testimony in the case which, in my opinion, overcomes any evidence as to this distance, and warrants the tAat, thepollision was caused by the tug's changing her course from the eastern side to the western side of the dredge when she thee while following the tug. caught upon the dredge's hawser, and so was brought in collision with the fUedge. Tbmmust' bEi"a/deoree for thE!' libelant, for an order ofreference to ';:'
BJlIPPING-DAloIAGE TO CARGO-LIABILITY oplVEIlSEL OR OWNER.
Respondent chartered his vessel to M., who subchartered to libelants. Both charthat the v,esselshould no.t be r:esponsible for deUvery of cargo in bad : ': dorlditiotl, 'a:ba.'-'eitilmpted the ftom: liability fo·r the act of God, and all other a'ncl' by/sea; rivers,. ,\\ndnavigation. Tbe charterers furtlJ,e!". agreed to indemniti the 'owners from all consequences arising from the captain',s signing" billli 'of lading. 'The 've8seHv&li Jloli.ded with fruit, under a bill ofladiIig wbich as,follows:" ",Loss Qr resulting from. the following I;lerils excepted, jiz.:' B,i!lk'of or fire at sea, 'in or on shore, bOllerS, ,steam) or 1I16bhln'ery, or from consequences of any damage or 1111ury thereto; however ... "..l;n proceeding to .her the ves;.such ,aamail!' Ql' inj,ury IlllilY', IIe1'sdanm ' , )k.e.:t.and. w.hiletfIat'g ' in shaft was ofof the se.s, the. carg o·.8.hJfted, .and Shaft=br. lli'appeared lYi,. n .. t.h.e trOUgh. the best material ana workmanwas / the ship, , nodefeots, and that there was , tlie pan ownet;aot Beta, that neither the ,'" 'vassel nor her'owners;were.llll.ble for the to the eatgo·
.In Admiralty. ', .: , , , . ; ,
damages., On appeal from districtconrt. :.' ·FINDINGS OF, FA()T.
Dennj$totl'{(urrder histil'inname of peter Deu,rai:stoh &Co.,)undera charter of affreightment, on June 16, 1885; to·theMerritt Fruit Gom.. subchartered it9 tne libelants on September 1885. these' charters'isha had made the voyage hereinafter referred to. (2) Both charters contained the following written clame, "StealIier not r-esponsiblefordeliYery of cargo in
{lJ The Bnti$bstell.l:rl-ship Rover was chartered ,by her owner, Peter
59 and exempteq., her .owner froIn ,liability. for the -a<lf of God, a,nd .other:dangers and accidents by the sea, rivere,and navigation. - T;hey further.prqvidedthat the captain, although appointed by the owners, shall ,be .under the orders and direction of the charterers, as agency, or other arrangements; and the charterers agree to indemnify :the owners. from all consequerices or liabilities that may arise from the captain's signing bills of lading, or in any other wise complying with the same. (3) The libelants, on or about December 7· 1885, loaded the st.eamer ,at Puerto Cortez, Honduras, with a cargo of 10,092 bunches of ballanasand 42,159 cocoanuts, to be transported to Charleston, S. C., and thereupon the master issued a bill oflading, such (lsha.d also been used on previous trips, which contained the following exceptions; , ..Loss 'or damages resulting from '" * '" any of the following perils ex'; capted., whether arising from the negligence '" * * of the master or mar"; iners, or others of the crew, or otherwise however,.viz,: Risk of explosion or fire at sea, in craft or on shore, boilers, steam, or machinery, or from the consequences of any damage or injury thereto, however such damage or may be. caused; collision, stranding, or ptper perils. of the seas,"
etc. _
," ,
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,
,I;)
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, (4) On pecember 10, while in the Florida straits, the steamer tempestuo,qs weather, with a violent gale and heavy sea, causing her to take much water on board. While thus exposed, and between much pitching, her crank-shaft, the propeller, broke. (5) Owing to the fracture of the crank.sbaft, the vessel lay in the trough of the sea for nearly 36 hours, while the engineer strapped together the broken parts oithe shaft. During this time she roUedhea.vily. The bins. which kept, the bunches of bananas in place between 1?ananas became more decks and in the hold were broken down; or less bruised and mashed,so 8S to be greatly damaged on arrival. ,:ay reason, alS(), of the laboring and straining of the steamer while lying in the trough, of the sea, and thus taking much water aboard, sea water also penetrated to the cargo, and damaged the same. (6) The engineer together the broken partl! of tpe shaft, the aft engine having was set in Dl9tion, and the vessel again proceeded on her voyage, reaching Charleston on December 15th, where she delivered the cargo, aged as a,fgresaid, to the Jibelants. (7) The ,Rover,was built at Dumbarton, Scotland, in 1874. Her tonnage 4Ql gross and 270 net. Her engines and machinery were supplied by a firm that stood high in the trade. The subcontractor who forged the shaft had the highest reputation for. turning out good work of that kind. (8) The shaft which broke was made of the best scrap-iron, which is considered the best mao terial for the purpose, and was forged in the manner then and now generally in use for the forging of such shafts, namely, by building out the ingot metal in the form of a parallelogram, and then slotting the form out of the solid, so as to avoid a weld at or near the junction of the cylindrical part of the shaft with the web of the crank. The mode of manufacture, known as "jumping on," by which the end of a shaft is
60
FEnElI.'AL
vot, 41.
weldedirito the concave surface of its arm, was not followed in the forging: oftliis shaft. (9) The shaft was 25 per cent. larger than required by the hoard' of trade rules for vessels of her size;" It had been in use in the Rovatever since her construction, in 18T4.'· Frequen(examinations were 'made and surveys held upon the machinery and shatt by private surveyors, by the board, of trade surveyors, by the surveyors to Lloyds, and by the engineers; but no material or substantial defect in the shaft was.'6ver discovered. (10) The broken parts disclosed no substantial defect which in any way conduced to the fracture, or determined its directi 011 or extent·. (11) There was no negligence on the part of the owners of said steam-ship, or any Of their employeR, which eontributed to or caused' the fracture of the crank-shaft,or the damage to her cargo in consequence thereof. (12) At the dates of the charters, and at the commencement (lfthe voyage upon which her crank-shaft broke. the steamship Rover was in all respects seaworthy, and reasonably fit for the serv. ice upon which she wasab,out to'embark. :CONCLUSIONS, OF LAW.
(1) The'Rover is not, nor are her owners, responsible for thedamage to the fruit; it not appearing that the same was caused by her unseaworthiness, or by the negligence 'of' her owners, or of any of their employes. ('2) There should be a decree for the responderit,'with costs of both ¢ourts. Wm. W. Goodrich, for libelants. E. D., Conver8, for respondent·. LAcoMBE,J' (after Btatin'ghiBfindings and conclusion8 as above.) In firming the decision ofthedistrict jUdge, nothing need be added to his exhaustive discussion ofthe;law and the facts of the case as presented to him. ,fTheadditional testimony taken in the court bi the respondent ftilly'establishes the 'identity of tWforank-shaft, while it reiterates and Supplements the positive' statementsbf those whd a.ctually forged such shaftasto the, process of manufacture'used by thent' Against such tea-timony the"further evidenceo! the; expert Burr, substantially to the feet thathe'..believes it was' nl>t' in the way descl'ibedby those who forged it, and that, in hisopiniOli',·the district judge wasmistnken as to the evidential value of 11 years of good service, is hot sufficiently persuasive to '0011 for a ,. ,, j
II;
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U'PIlAtL '7. WILLIAMS.
61
. MCPHAIL't'. WILLIAMS (DI.8tr£ct Court, D., Massachlt8etts.
et ale January 7, 1890.)
SmpPING-LuBILITY Ol'OWNER-LIMITED LIABILITY AOT.
In a libel in personam by a material-man for repairs on a vessel, it appeared the repairs were made and the supplies furnished on the authority of both respondents, each being a half owner in the vessel, and that they were furnished on the order of one of them, with the previous knowledge and consent of the other. Held that, under Act Congo June 26, 1884, providing that the liability of a ship-owner shall be limited to the proportion of any and all liabilities that his share of the vessel bears l<O the whole, but that this provision shall not apply to wages due to persous employed by such ship'Clwner, both the respondents were liable for the whole amount due for such repairs, they being made on the personal oontract of each of them.· ,
In Admiralty.
Libel for labor and materials.
NELSON, J'. This case waS a libel in per80nam by a material-manto recover a balance of $322.56 for repairs and supplies furnished to the bark Carib, of which the respondents, Williams & Luiz, were owners. I find, upon the proofs, that the repairs and supplies were furnished at Boston, the home port of the vessel, upon the authority of both respondents, each being a half owner; that they were furnished upon the order of Luiz, with the previous knowledge and consent of Williams; and that the balance claimed has not been paid, and is a proper charge for the work and materials furnished. Upon these facts,the respondent Williams contends that the decree should be so framed as to limit his liability toone-.half of the debt, relying on the eighteenth section of the act of June 26, 1884, (23 St. 57 ,)which "that the individual liability shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to the and the aggregate liabilities of all the owners ofa vessel on account of the same shall not exceed the value of such vessels and freight pending: provided, that thi§! provision shall not affect the liability of any owner incurred previous to the passage of this act, nor prevent any claimant from joining all the owners in one action, nor shall the same to wages duato persons employed by said ship-owners." It was decided by Judge BROWN in The Amo8 D. Carver, 35 Fed. Rep. 665, that this statute has no application to the personal contracts of ship-owners. In his opinion the learned judge says: act of 1884. limiting the liability of. the owners of a vessel on acc()l1nt of the saIne, does not. I think. restrict the liability of owners upon their 0\Vn personal contracts, but only their liability' on account of the vessel;' that is. the liability that is imposed on them by law, in consequence of their OWnership of the'vessel, viz., for the contracts or acts of the ship, or her master' without the owner's express intervention."
III .tIidgeBRowN'S conclusion, that the act does not extend to cOIl: tracts entered into personally by the owner, I fully concur. In Butlerv.