EVANS 'IJ. SPRECKELS.
265
the principal element which enters into the question of the amount of salvage. The circumstances which prevent a large reward are that the labor of the salvors was not great, their property was not put in peril, and the officers and crew of the salvors were not in personal danger in saving the claimant's property. The value of the property which is the subject of this libel is $29,200. I think that the sum of $3,504 should be awarded, for which sum, with costs, let a decree be entered in favor of the libelants. The terms ()f the decree will be settled upon notice. Upon the libel of Daniel McWilliams et ale little need be said in aMidon to the facts which have been recited. The libel was brought to recover damages for the negligent conduct of the Intrepid in attempting to tow the Vandercook and her tow, whereby the Gladwish and the Clara McWilliams were lost. At the close of the trial the libelants admitted that there was no cause of action as to the Clara The affirmative testimony as to any negligence with respect to the wish was very feeble, and had apparently no foundation in fact. I find that the allegations of the libel as to negligence are not true. The libel is dismissed, with costs.
EvANS 'IJ. SPR)l:CKELS.
(DiBtrict CoUll"t, E. D. Pennsvlivanw. January 9.1891.) SHIPPING-CARRIAGE OJ' GOODs-DAMAGES-PERILS OF THE SEA.
A part of a cargo of sugar was by water, during a tempestuous voyage in which the vessel passed through severe storms accompanied by heavy rains, and was much strained and her seams opened. The greater part of the damage was by fresh water. HeLd, as the rain-storms and the condition to which the ves.sel was reduced would amply account for the presence of fresh water in the cargo, in the absence of satisfactory proof that the damage therefrom arose from other causes, it be attributed to "peril of the sea. " . j
Libel by Evans, master of the steam-ship Mineola, againstClau8 Spreckels. Curtis Tilton, for libelant. Frank P. Pri.ihard, for respondent. BUTLER, J. The libelant sues for a balance of freight; and the respondent sets up in defense a claim for damages to cargo. The only question arises' out of this claim. A part of the cargo was seriously damThe charter exell;lpts damages arising from "perils of the sea." The voyage was tempestuous and perilous;. storms of wind and rain Were encountered, of extraordinary violence; the deck was at times washed by waves and at others covered by rain-water; the swaying masts and "tough sea strained the ship and, temporarily, opened seams through which water entered copiously. The damage arising from this source was unavoidable, and no blame attaches to the ship in consequence.
266
FEDERAL REPORTER,
vol. 45.
Alldamage ,to the cargo water. According to the testimony of,Mr. Wachtel, the chemist, a Pll.rtof' the damage was Qaused by salt waterand a by fresh. As respects that arising from the former there is no dQl,:tbt that it is attributable to "perils ,of the In the absence of proof that the damftge from fresh :wa,ferspould be attributed to a different source, the same conclusion will a-pplyto it., 1'he entrance of this. water, (without such proof,) would.Qeaccountedfoz:by the facts stated. I do not find any satisfacthat.wl\ter entered except through t.he temporary openings caused by storms. The testimony of Mr. DO,\lglaS, a witness called by is that hefotl-nda. "square wooden box or pipe, leading from w:l;1athe 81lPposed to be the trllI-ster's and that it seemed to have leakeq.) or rather that "there wae evidence of water baving come through, " did not see tbewater come through, nor test the pipe, nor ask to have it tested, so as to ascertain whether water would come thro\1gh"This testimony consists of inferences :merely; and these inferences,-which;,l think would not be fullysatisfl:wtory1even if we had nothing more,-seem to be testin:lOny of the master who says, on cross-examination, that the water-ta'lks are constructed of iron; that they were in sound and perfect condition; have not been repaired since; that he twice tested them subsequently to landing this cargo; and that the ship has recently carried sugar and flour testimony to the pipes connected safely. I must infer that with the tank and all otherlo! its fixtures, or attachments. As the respondent was ,seeking forevidence to suPP?rt thetesti,DlClny of Mr. Wachtel, who had been sent' to "look for leaks,' and was . to be called to prove a leak in the sink-pipe, it must be supposi:ldhe, would have rected the'master's attentionspecifically to thepip6 ifhedid not understand the to embrace' it. .As ,the respondent's case had not then been developed"the libelant could not anticipate Mr. Wachtel'stestimony, a,nq,' theref.ore cotiId not be exp'ected to examine the master and others on the subject. Before the testimony of Mr; Wachtel was taken the master and crew, I am informed, had sailed. Besides, it does not appeartbat the injured sugar. was in that part of the vessel. I am not unmindful of the fact that when the seaand rain water entered together,traces of salt would probably be found in all the sugar wet: by .it. ··Nevertheless if the fresh water was greatly'in; excess, the,existElDce'of salt in the sugar might not be detected by the test applied. It is quite probindeed J think ,certain, that 'much fr.eshwater enwhenthewaveswe:re pot,;washingthe deck. Rain fell for many days, in great qU9-ntitiE!s,"1":-'"sometime!l flooding the deck, aEl t.hewitnesses and" altbough down. through the seams· produced by thestorlDs,.spPle,dl;l.ubl;1es13, passed down where no sellr-wa.t.er had gone; an.1i eyenwnere ,t,he sea..water it is probable a much larger in, not only with it,but at,times when the amountQf ra,in-;water deck was, not washed 9Y' waves, and. consequently sank deeper, and spread wider, leavingnq per.ceptible traces of salt. A decree must therefavodor the value of the freight claimed. fore be entered in the
PIERCE
THE J. R.
1;';
MOORE.
PIERCE 11.
THE J. R. P.
(Df,strictOowrt,E.D. North Oarolina.
1.
COLLISION-VESSEL AT FAULT-DIVISION Oll'DAMAGES.
In. of a collision between vessels, one of which has been guilty of a clear fault, there must also be clear evidence of contributing fault on the part of the other, to divide damages. A schooner collided with a yacht, which was at anchor in the channel of a river. There was no one on the deck of the yacht. The mate whose watch it was was in the mess-room. and probably asleep. A light had been burning during the night. The mate testified that he saw it an hour before the collision, that it was shining on his feet, so that he could not have missed; and that he had been absent from the deck only 10 minutes. On the schooner the master was on deok, the mate on the lookout, and a man at the wheel. and they all testified that there was no light on the yacht. A witness who lived near the river had seen the yacht at anchor the day before, and noticed her ligM during the night. Two hours before the collision M. had looked for the and it was gone. Held, that it was clear that the yach' had kept neither anchor light nor anchor watch as required by statute. . It was a very dark night, and the yacht was at anchor in the channel 25 lI\iles from any. ireq.uented port.. An expert te.stified that· the lookout on the schooner '.
.
9.
SAME-VESSEL AT ANCHOR-LIGHTS.
8.
SAME-DIVISION Oll' DAJ(A.GES.
oUl/:ht to have a6en the yacht at a distatlC6 of 200 or .800 yards, and that, if he' had seen her at 800. yards, the schooner ought to have cleared the yacht. The schooner was sailing at the rate of 6 knots, and would have covered 800 yards in some SIlOond.s more that\ a minute. Held. that the evidence of fault on the part of the, schooner was not clear enouj{h to, justify a division of dalI\ages.
In Admiralty. Clark, for the M. D. W.· Stevenson and L. I. Moore, for the' Moore. SEYMOUR,J. This is a case of cross-libels for a collision which took place at a. few minutes before 6 in the morning of the 13th of last De:. cember, near the mouth of the Neuse river. The steam-yacht Nydia, of which Dr. R. V.Pierce is owner, was lying at anchor near Garbacon shoal, in the channel of the river. It was not a fault that she lay there, for the river is wide and deep at this place, and there was abundant room to pass on either side of her; but being ina passage-way she was require(l .by statute to keep both anchor light and anchor watch. Case n8 (Lgllinat Yacht. She kept neither. As for the light, the yacht ha'd been burning a bright light during the early part of the night, visi:' ble at.a distance ofseveralmilel'l,":-certainly of two miles,-but thisljght was in a lantern attached to a mast which was carried away in the collis-:' ion. There was no one at the moment of the accident on the steamer's deck. The 'cook was up, in his galley malting preparations for breakfast. The mate, whose watch'it was, was. in the mess.;room·, and probably asleep.' He says he had but'lOmihutes. Whether awake or asleep,he certainly wall nob.this post. A ina:riller testifies to' having seen the light burning 'during hiswatch,whioh was from 7 tolil at night. . Thesays he looked at the 'light, and saw it, about .an' hour before the collisi.oo:; an(l tha:tit Was shiniri'g on his 'feet all the so' that he could hot have missed it.' On 'the deck of the schooner were three men,-the master-on thequarterldeck, the mate on tbe lookout,