NATIONAL BOARD ()FiM'ArirNE'ttNDERWRIT'RRS
v.
MELCHERS.
643 '
eW;l,ble the ,the,tt1g; to, ()otAln aQy',,\lpfaltltq.vAntage in respect' to the amount for which, they be,accountable in limiting their lill.bility ,thilie.is any reason to suspect that the sale was greatly below' the n'\al'ket value of the vessel, or that the sale was made a mea.\1il,bywhich the former o,wners might reduce the amount for which they were responsible-, ,while they indirectly retained the benefit of the vessel, I have no doubt that the court toay relieve the parties interested by inquiring into the facts, and requiring a larger sum than the proceeds of the sale thus obtained. The libelant in the libel for repairs; 'linder whostHlecree the"vessel:wa,s 'sold, has an undoubted HElD upon the vessel and' heqJr0ceeds. 'There has not, as yet, bee,n any de-. cree in the damage suit, and there is nothing, therefore, to displace the repair lien. Accordingly" aslhave already held in Gokey v. Fort, 44 Fed. Rep. 364, thepetitionersiin order to limit their'liability with sptfutto claiIIls arising upon the third voyageafter the'repair lien accrued, must' surrender the vessel" or herproceed8, free from that lien. They must, therefore, in any event, as the Case now stands, give a bond for the whole amount in court,because that amount is less than the repair lien, and the amount now on deposit will, for aught yet known, be absorbed by that lien. As respects the damage claim not yet adjudicated, the libelants therein mlly, if desired, within five days take an order of reference to ascertain whether the E'ale by the marshal was for a sum greatly below the fair and reasonable value of the at such a sale, and whether the same was pUTdhased directly or indirectly for the benefit of the petitioners, or either of them; if so; what was the fair value of th/) vessel at the close of the voyage? such libelants j at the time of filing their order, to enter an appearance, and' give security for the payment of the costs of such reference, if the price realized at the marshal's is finally sustained for the purpose of the petitioners'application; ant' the determination of the amount of the bond to be given by the petition. ers is reserved until the coming in of said report, if such reference be taken. If not taken, a 'bond for the price realized at the marshal's sale will be approved.
NATIONAL BOARD
OF
MARINE UNDERWRITERS
(Di8trlet Court, E.]). Pennsylvania. January 6,1891.} 1. ADMIRALTy-RELEA.8E OF ATTACHED PROPERTY-ADDITION
07 PARTIES. Where a ,suit has 1;Ieen 1;Iroughtagainst one, of two ship-,owners. and propertyat.tached thereunder released before the name of the other owner is introduced, thlt suit must be regarded as ag8il1st the original respondent only:· OF 'OWNER.
2. S.
A part owner of a ve$llel is liable tn 8olido for a balance due on an average ad justment. " " ' . ' . AnMIRALTy-JURISDICTION-RECOVIIRY ON AVlIRA6I1 AD.TUSTMIINT. A C9urt ill, has jprisdictio,n 1;Iy foreign
in a SUIt against a
i
'I'
oyvnel' 'lio -nlOo'ver a balance 'due on an average adJustmplil4i.
1 Reported_by
Mark Wukb., Collett,Esq., of the PhUadelphi& bar.
644 ,",S.UR-COl'!'FJ,IO'r OF
FEDERAL REPORTER,
vol. 45.
A vusel having been damQgedputinto Fa'yal, and was unable to proceed on her voyage. Her cargo was removed, and the vessel sold. :The master sought a substitu1;e, but was unable to find one. lie then collected pro,Tata freight from the underwriter's agents, who shipped the'cargo to its destination, advancing the necessary supplies, and chartering a vessel. Held. although the bill of lading at Fayal was taken in the master's name. tbe was abandoned, and a severance of in. terests occurred there, and hence the rights of the parties in an adjustment are to be determined by the rules prevailing at Fayal, even though no demand was made there for an adjustment.
In Admiralty. ,Libelinpersonam to recover the proportion of general average expenses incurred by the defendant as owner of the bark Walraven Melchers. The Dutch bark Walraven Melchers, on a voyage from Hamburg to New York; with a general cargo consigned to several owners, sprung a leak, and bore away for Fayal, where she arrived. A survey was called by the master, and under the advice of the surveyors the cargo was discharged and stored. By a subsequent report the surveyors recommended the vessel to be sold, which was accordingly done. The master notified his owners, the defendants, who declined to furnish any funds, and the cargo was brought on to New York py a vessel chartered for that purpose by the plaintiffs, as agents for the underwriters or cargo. The various expenses incurred at Fayal were paid. partly by a credit opened by the libehints and moneys raised by bond on cargo paid by libe1. ants, and partly from funds arising from the sale of the vessel. The master remained at Fayal at the instance of the underwriters' agents there. The vessel's funds were placed in the hands of the master's agent, the vice-consul of the Netherlands, who disbursed the same. Almost all the cargo was shipped from Fayal by the Geestemunde, the chartered vessel, in the name of the master of the Walraven Melchers, deliverable to the ordarof Messrs. Peter Wright & Sons at New York. The freight from Fayal by the Geestemunde exceeded the original freightfrom Hamburg to New York. ,The master exacted from underwriters' agents, before allowing the cargo to be forwarded, distance or pro rata freight on the part of the voyap;e performed bj' the Walraven Melchers from Hamburg to Fayal, which was paid by them to the master under protest, in order to obtain possession of the cargo to be forwarded to the United States. The master did not cause any valuation or appraisement of the cargo to be made, nor procure ,an average adjustment to be prepared at Fayal, and the funds to provide for carriage of cargo to the United States were furnished by the underwriters' agents at:b'ayal, who after its arrival in New York had an adjustment m.aqe there, by which the owners of the vessel Were declared debtors to the owners of the cargo. This suit was begun:' by attaching in Philadelppia lllebark Jan Melchersas defendant's property. After the release of the vessel, Andrian Hemmes, a halfowneraf both vessels, was made a party by amendment. Morton P. Henry, for libelants. Outler v. Rae, 7 by Harewood v. Enequist, 23 How. 491, and Insura'nce Co. v. ])unham, 11 Wall. 1, and has been recognized to be Fernando y. J 121'ed. Rep. 341 j Coast
NATIONAL BOARD OF MARINE UNDERWRITERS V. MELCHERS.
645
Wrecki'llg Co. v. Phmnix Ins. 00.,7 Fed. Rep. 236: Beztv. Gumbel, 24 Fed. Rep. 383; Hege v. North German Lloyd, 33 Fed. Rep. 60: Olivart v. InsuranctJ Co., 37 Fed. Rep. 894; Sweeney v. 'l'hompson, 39 Fed. Rep. 121; Wheaton v. Insurance Co .· Id. 879. attachment lies in admiralty. Atkins v. Disintegrating Go., 18 Wall. 272; Manro v. Almeida, 10 Wheat. 473. The place for adjustment is the place of final destination. Barnard v. Adams, 10 How. 270; Bradley v. Oargo of Lumber, 29 }'ed. Rep. 648: McLoon v. Oummings, 73 Pa. St. 98. A transshipment of the cargo to complete the voyage does not end the adventnre. Pie1'ce v. Insurance 00., 14 Allen, 320; Winter v. Insurance 00.,30 Pa. St. 334. The respondent is not entitled to the bene-' fit of Act Congo June 26, 1884. Card v. Hine, 39 Fed. Rep. 818; 'J'he Amos E. Carver, 85 Fed. Rep. 665. The master was not entited to pro -rata freight. Armroyd v. Insrt1'ance 00.,3 Bin. 437; Welch v. Hicks, 6 Cow. 504; Vlierboom v. Ohapman, 18 Mees. & W. 230: 1 Pars. Mar. Law, 166: The Joseph Farwell, 31 Fed. Rep. 844.
Horace L. aheyney, J. Rodman Paul, and A. lfiJdney Biddle, for respondent. Ship-owners are not partners, and respondent is only liable for a moiety. 1 Pars. Shipp. & Adm. 116; Hen. Adm. 67; 3 Kent, Comm. 151; Cutler V. Rae has been formally approved by the supreme court in Dupont De Nemours v. Vance, 19 How. 171; Bags ofLinseed, 1 Black, 108. Promta freight is allowable by law of Germany. Articles 630, 632, Code of Commerce for all Germany. Liverpool, etc., 00. v. Phenix Ins. 00., 129 U. S. 397, 9 Sup. Ct. Rep. 469. By la w of Holland. Article 478, Commercial Code Netherlands. Article 1526 of Portuguese Code. By law of United States. Abb. Shipp. (12th Ed.) 369; Pars. Shipp. & Adm. 239; Luke v. Lyde, 2 Burrows, 883; Hunter v. Prinsep, 10 East, 378: B01'k v. Norton, 2 McLean, 422: The Nathaniel Hooper, 3 Sum. 542; Gray v. Waln, 2 Sergo & R. 229. An adjustment should be made at the points of the separation of interest. Lown. Av. (4th Ed.) 281: Gour!. Gen. Av.4207. BUTLER, J. In disposing of this case I will confine myself to the points urged at the hearing; and will do little more than state conclusions respecting these. Some of them involve doubt and difficulty· None of them, however, are new in their legal aspect, and, while the authorities are not harmonious, they have been so fully discussed that nothing additional can be advanced. The suit was brought against one of the ship's owners, alone, and the property attached was released before the name of the other was introduced. Its introduction was, therefore, too late. The suit must be regarded as against the original respondent only. In my judgment, however, he is answerable for the entire liability of the ship. As said in Parsons on Shipping, p. 89, all part owners are generally, liable, in solido for repairs and necessary supplies. The cases cited support the text. The court has jurisdiction.. In the absence of Cutler V. Rae, 7 How. 729, this I believe would not be questioned. That case, however, cannot be regarded as authority. Its decision as respects the point, was unfortunate. The question was neither argued nor presented-as appears by an appendix to 8 How. p. 616-and the decision (which did not pass without dissent in the court itself) was a surprise to the profession. The lat.er rulings of the same court show it to have been a mistake, (More-
646
i: i
FEDERAL· REPORTER,
voL 45.
atidtlfes'e later cases have beenfollowed in the cireuit courts, (Belt v. Gum-
23 How. 491j'Iri.mrano6 Co.v. Dunham, 11 Wall. 1;)
383; Heye v. North GerrnanLloyd, 33 Fed. Rep. 60; Co., 37 Fed. Rep. 894; Sweeney v.Thompson, 39 Fed Insurance Co., Id. 879.) . Should the average adjustment be made in accordance with the rule prevailing ,at! Fayal, or those in force at New York? This question involves' dHfidlllty. I think, however, the views expressed by Mr. Lowndes, inhiS work on General Average, p. 198, are spund and govern the subject·. 1 therefore adopt them. As he says,' where a vessel. is wrpcked, or so damaged by peril of the sea, that the voyage cannot be continued, and. the master finds. and substitutes another, whereby the cargo is carried to its destination, retaining his lien and earning freight, no separation of interests occurs Qntil the destination is reached. Consequently the adjustment is to be made according to the rules prevailing there. Where the master forwards the cargo to its destination by another vessel in pursuance 01 hisllgency for its owners, alone, without intention to retain his lien and earn freight, the adjustment is to be made according to the rules of the plilCe of reshipment. The intent in such case, however, may be and sometimes is involved in doubt by taking a bill of lading in the master's name, and consigning the goods to the ship's agent. Where the cargo is furnished by or on behalf of its owners, without retention of the ship's lien, the separation of interests occurs at the place of reshipment, and the 'adjustment must, consequently, be made according to the rules prevailing there. In view of this statement of the law my understanding of the facts in the case settles the question involved. The vessel was unable to proceed beyond Fayal. She was so damaged as to render the cost of repair unjustifiable. The master sought a substitute but was unable to find one. He was not required to do more, and consequently abandoned the voyage. The libelants, who represent the underwriters directly I and the owners of the cargo indirectly, in view of these facts took charge of the cargo, chartered the vessel, advanced necessary supplies and carried the cargo to its destination. The libel substantially admits these facts: It says the" master abandoned the voyage, * * * and the libelants assumed the duty of master and owner of the vessel towards it, advanced the money required to pay all expenses incurred at Faya1 * * * in order to obtain possession, and charterE:'d. the North German Geestemunde to carry it to New York," 'fhat the voyage was abandoned" by the master, and that. he intended to have no further connection with the cargo after its delivery to the libelants at Fayal, is I think made clear by his acts and declarations, and especially by his demand of pro rata freight. . I do not attach importance to the fact that the bill of lading at l!'u.YJU ,was taken in the master's name. This was done probably at the' suggestion of others, and for the sake of convenience merely. He did .not retain his hold on the cargo; but consigned it to the libelants' agent. In my judgment the ship's connection with it was completelY,severed at Fayal. Mr. Despard, an adjuster and the libelants'
SPRECKELS
v·. T.HE
ST.A,TE QF. 9ALIfORNIA.
647
representative, a gentleman of intelligence and experience, adopted this view, as appears by his testimony. It follows that the rights of the parties are to be determined by the rules prevailing at FayaL .The respondent is not affected by the fact that he did not demand an adjustment there before parting with the cargo, as possibly he might be were he now suing for a balanoe on general average. He is here defending simply against a claim setup by others. In this view of the facts found, it follows also that the demand of pro freight was justifiable. It is unnecessary to inquire whether the latter subject was governed by the law of the ship's flag, the place of contract or that where the voyage terminated. The laws of each in this case justify the charge. An adjustment must therefore be made according to the foregoing opinion. If the parties do not agree upon such an adj ustment,a commissioner will be appointed.
SPREcKELS et
al,
'IJ. THE STATl!1 OF CAI,IFORNIA, (PACIFIC COAST S.
S. Co., (D£8trlct Court, N. D. CaUlamia. SALVAGB--"-CONTRACT FOR COMPENSATION.
Decemb.er 22,_ 1890.)
The owners of a certain vessel, on receivin.A'Q dispatch that she was disabled, engaged a tug of libelants to proceed to her relief for a stipulated compensation. Theyafterwards agreed to employ another tug of libelants "for the same purpose, and at an agreed price, In case a dispatch should bereceiV;ed showing the vellsel's position to be different from that supposed when the first tug started. Such a -dispatch was· not received, but the owners employed a tug of 'others than libelants to proceed aft.er the vessel. Libelant!; then sent their second tug, which brought in the vessel. The owners, when informed that such tug had gone, made no protest. Held, that libelants were entitled to the stipulated amount, but not to other salvage compensation. , ,
Milton Andros and Ohas. Page, for libelants. Geo. lV. Towle, Jr., for claimants.
In Admir8Ity.
HOFFMAN, J. On the aftemoon of January 3, 1890, Messrs. Goodall & Perkins received a telegraphic dispatch from the first officer of the steamer State of California, dated "Bowen's Landing, via Walhalla," informing them that the steamer had broken her shaft, that her rudder was disabled, and that assistance was required to tow her into port. The steamer was then three days overdue, and her non-arrival had given rise to serious apprehensions for her safety. Her value, with her cargo and freight, was about $300,000. She also had on board 130 passengers. On receiving this dispatch, Ex-Gov. Perkins. immediately opened negotions with Mr. J. D. Spreckels, representing the libelants, who are the owners of five powerful and well-equipped tugs, for the dispatch of one of them to the assistance of the disabled vessel. A written contract was
648
I'JCDERAL REPORTER,
eXecuted, under which the Vigilant was at once sent out to perform the diem to be paid at all events, and irreservice at a stipulated rate spective of the failure or success of her mission. Shortly after her departure Mr. Spreckels suggested to Mr. Perkins that, on comparing the longitude of the position of the disabled vessel with the time consumed by the mate in reaching the shore, he was satisfied that the longitude was incorrectly stated in the dispatch; and that if, as he suspected, the veE;isel's true position was much ,further to the eastward; a second tug should be sent to seek for the steamer in her corrected position. In this suggestion Mr. Perkins at once acquiesced. A dispatch was sent to the mate,'and an agreement made with Mr. Spreckels that the Relief should he put in readiness to start if the mate should reply that the positionof;the was erroneously stated in his first dispatch. The parties also came to an understanding as to the compensation to be paid to the Relief if its services should be required. The mate's reply was momently expected; and it was arranged that Capt. Hawley of the Relief should call at 5 o'clock at the office of Mr. Perkins, and receive from him' an order for the expected dispatch, if, in the mean time, it had not arrived. Later in the afternoon Mr. Perkins was called UPbb by Capt. Gray Rnd Capt. Griffith, representing the Merchants' & Ship-Owners' Tug-Boat Company.' They appear to have objected with some warmth til his employment of a boat of a rival line, and Mr. Perkins was induced, or, perhaps, felt himself obliged, to enter into a contract with them for the dispatch of the Monarch in quest of the disabled steamer. Some doubts of Ex-Gov. Perkins' good faith in this transaction seem to be entertained by the advocate for the libelants."But I see nO'sufficient reason to impute to Ex-Gov. Perkins an intention to induce the libelants to make preparations forthe dispatch of the Relief at a moment's notice, if the mate's expected dispatch had shown the steamer much nearer shore than at first reported, when, in point of fact, he did not intend to dispatch her in any event. As already stated, the steamer, with cargo and freight, was worth s.ome $300,000. She had on board 130 passengers. Motive!;! of interest and of humanity suggested the necessity of omitting no measures to secure her safety. If the mate's expected dispatch had shown her position to be one degree of longitude nearer the coast than at first reported, the dispatch of the Relief to search for her at or near her corrected position would he dictated by humanity, as well as by a just regard to the material interest in charge of her agents. When the Monarch started, the second dispatch had not been received. She therefore set out without any other information than that possessed by the Vigilant. The Vigilant was as capable of pe.i:'forming the service as the Monarch, and the compensation to be paid the latter was limited to 60 hours' service at the stipulated rate. Why, then, was the Monarch employed? The answer is obvibus. It was from the fear that, if not bound by a contract, the Monarch would at once start out as a volunteer salvor, and, in the event of success, claim a salvage reward, perhaps 10 or 20 times as great Rsthe price'at which she was willing to contract to perform the service.
SPRECKELS'll. THE STATE OF CALIFORNIA.
649
This apprehension was, I think, founded on a misapprehension of the law. Had the agents of the Monarch been informed that a tug had already been dispatched, and that another was held in readiness to start at once on the receipt of intelligence then momently expected, and that the owners had taken all measures in their judgment necessary to secure the steamer's safety, the Monarch would have had no right to obtrude her services on the steamer, and, forestalling the tugs dispatched and to be dispatched by the owners, claim a salvage recompense out of all proportion to the price at which she was willing to undertake the service. In the case of Protection 00. v. The Oharles P. Chouteau, 5 Fed. Rep. 463, where aid tendered to a burning vessel was absolutely declined, but an attempt was made to compel the acceptance of the services of the pretended salvors, the court not only refused salvage reward,but held that all right to compensation for expenses incurred in going to the relief of the burning vessel was forfeited by the misconduct of the intrusive vors. In this case, BILLINGS, J., observes: "If the master of a burning vessel prefers to allow to burn, rather thao: to permit outside parties to extinguish the fiames, he may do so. He has 3 perfect right to decline any assistance that may be offered bim. He should not be assisted against bis will. " I should hesitate to accept the view of the master's right and duties as broadly as it IS here laid down. But where the owners of a vessel in peril have taken all measures in their judgment necessary to insure her safety, and those measures are adequate, and all that prudence requires, other· parties have no right to obtrude their services, and anticipate the employment of the means adopted by the owners, and then, if successful, claim a salvage recompense. Such an enterprise savors more of a predatoryexpedition than a salvage servicew be encouraged and rewarded on grounds of public policy. It iseaid by Mr. Justice BRADJ,EY in The Bolivar v. The Chalmette, 1 Woods, 398: . "If my ship is disabled, but perfel,tly ssfe for the time being, and I to employ a tug-boat to tow her into port in mild weather, then presenting danger or risk, can the owners of vessels whoae business it is to do just SUch work decline my employment, and hasten offtnarace to see which shall first seize my ship as a salvage prize? This, instead of encouraging that enterprise and daring wbicb the laws relating to salvage are intended to foster, would be to encourage sharp practices and unconscionable speculation." In this case the agent of the tug-boat declined the office of towing the bark for an agreed compensation, but said he was going down to take his chances as a salvor, and make a claim for salvage services. Mr. Justice BRADLEY characterizes this conduct as "somewhat extraordinary," and adds: "Had not tbe captain finally yielded to this proposition, * · * itmigh$ well have been doubted whether it was a case of salvage at all." These observations are commended to us not less by their justice and good sense than by the authority of the eminent judge by whom they were
650
'"i.A.t5;orcloCK: Capt. Hawley'called, pursuant to appointment, at the uffice!QfGoodall,Perkins & Co.,.and was informed that no dispatch had been received from the mate. ,He was also told, as he says. by Gov. Ferkins" thatCapts. Gray and :Griffith were "kicking" because he had one of tbeir,t\1g8,and,he thought he would have to take the Monarch.(\Gapt. Hawley ,replied that he waS coaling up the Relief, and would be ready shortly;, to which Gov. Perkins answered that it was not necesl:la,ry., ashe bhoughthe would:take the Monarch. ,In fact he had already: engaged her.) Capt. Hawley was informed a few minutes after leaving the. office that orders bad.been given to theMonatch to go out as SOOl).·JUi ,possible, ., He at once telephoned to Mr. Spreckels. the informatioQ. ihanheMonarchwas about to. start, and receivedin ,reply orders to dispatchrthe Relief at once. She accordingly put to sea at 7:30 P. M. of the;3d;, and· returned on.themorning of the :5th, with the steamer in tOw.'/iFl<I)rtbis servi<leiASalvage compenf3ation is claimed. It does not appear that Capt. Hawley received from Gov. Perkins any precise and allidea qf dispatching the Rellef"o,nd'.would relens,eber from her conditioned ,engagement, to be in1Ieadineas, to start ,on the terrnsagreed upon .if the matels second patch should show the steamer's position to·have been 'erroneously stated. He .. to the, 14onarch, that it unnecessltfY for the}rfhef to. preparatIons f?r 1l,IlpledIate depllrture,and he omItted .to .mform Capt. :J;Iawley tilat he contract, with the Monllrqb I and evell had'had Ii verbalarrangehe (l1a,d'e the wgh Mr. $pr'eckels ofthe Relief. ,Wh.ether Gov. rerkiris bad finally and absolutely dete,rrhined 'not to employ the Relief, no matter what information steamer's'true positioIl}night be communicated by the mate, it Bp,t that,Mr. Spreckels and Capt. Hawll'l)' cionsidered tbefuselves released from their ngreeinent to hold the Relief in readiness to go to the assistance of the steamer on the agreed0Il'/if'required,' on the'receiptof the niate'sflispatch.. !lhn incline'dJ;o that, of the Relie{w,as largely du¢:to irritatiQnap:he employment, o(a..tugqf llo<rival cOmpany, and to resentment at wha.U411Y, considered unfair trea,tment'on the part of the claimants. libelants toa recompense 'does not depend upon the resultof any inquiry mtothemotives 'a:ndprobable intentions of c<},aiplapJs,( ,It on, principles and mo:e flu.,s.cepJ;ibie.ofgelwra.l.appl}<;:atlOn.. The ofa.vessel dIsn.bled or m distress not thereby lose the control of his property. He has the ,offers of assistanoo, that may be made, or to adopt' hIs"own ineasures'for the preservation of vessel. When he hasprovi<ied. Oleans for her rescue, in adequ8,te alld fE!ctual; he WJ?ot mercy' ()f l1uy full knowledge of this fact, may sallyoLlt 'to Utake bis'chances'" of winning In a race seize the ship as a salvage prize." The Bolivar v. 1!he;Okalrbdte,ubi 8upra. That hadAh,e to employ the Monarch, or as many other tugs as they saw fit, cannot be questioned.
haa,
his
,'THE
They had already dispatched tbe Vigilant, belonging to theJibelants,to the assistance of the disabled Bteamer. The Monarch was about to start on the same errand. The Relief was sent out because the Monarch had been engaged. The success of her enterprise and securing of the salvage prize they hoped to gain depended not merely on her beating the Mona.rch in the race, but also the Vigilant, their own vessel, which was under contract to do all in her power to effect the towage Whatever be the jnstice ofthe libelants' belief that the claimants' intention was to" tie up" the ReUef under the expectation of an employment which was not to be offere<i, they would have had no cause of com plaint if the claimants had, when the mate's second dispatch was received, sent out the Relief on the terms agreed upon. I shall award the libelants all that they can justly claim, by giving the sum for which they were willing to nndertake the service j nor shall I do any inj ustice to ,the' claimants, for Gov. Perkins, when informed that the Relief had gone out on the preceding evening, made no protest, and expressed no disRatisfactionjon the contrary, he said that he was glad she had gone. The steamer was brought in by the Relief. Under all the circumstances, I think it just that the claimants should pay the stipulated price for the service.
THE ATHABABCA. REID TOWING
& ,·WRECKING
Co.
v.'THE ATHABABCA.
,(DtBtrict Court, W. D. Michigan, N. D. ,December 17, 1890.)
1. ING VESSEL. ' , ' '
TO
W AnN ApPROACH-
The libelant oonstructed at Saulb Bte, Marie a raft. 1,200 feet long, 250 feetwide, oontaining'l,500,OOO feet of included in consisting oftimbers fast. ened tOgether at the ends WIth chains, and haVing two or three (lables thrown , across 'keep it from sPL'ead,ing , Two tugs we,re stationed, res'!>ec,threlY, at the head and rear of the raft ,to, help it along, and, cNwd it over to one side of the chantiel so as to permit of the passage of vessels. Entering a longhnarrow cl:lannel , 'in theSte,' Marie river, where the cnrrent is aboilt four miles per our, oue of the tugs was sent down stream to warn approac1:ling'"essels,: "l;'Iuch warning wall given the Hiawatha, and her tow, but none was given the Athabasca,a large, ste,el passenger steamer. although her smoke was seen from the tug. 'As soon as the Athabasca beqame aware of the lLpproach of the, ra,ft, she her speed as much ,88 possible without losin/\" her steerage, and kept as close as prudent to the Canadian shore. 'At this time the raft was sweeping rapidly down' stream; with' a tug at either end, striving to pullittotbe opposite side o,fthe rive\". This resulted in car- . ryingover'tbe ends, leaving a large bulge in the middle of the raft, reachillg wi,thin 60 feet of the Canadian sllol'e.' The Athabasca, not having sufiicient room left her in ,Which to pass safe1y,c4angedher course, and wen,t tqrough the tiaft, stem, on, breaking the hoom and scattering its contents, resulting in a totallosll, amounting to sm,ooo. which the libelant seeks to reoover. Held,: that it was '8 hatardous under,tajdng to take a raft of such size. and Ste. Marie river, knowing the perils incident to ,the ,almost constant passage of vessels, tbe swiftness:of the current, and 'th& oooasionalnarrowness 'Of tbe stream; alia 'that' it was an, ,added negligence ,Dot to,takll elIectiv,emeasures t9 'warn the At<haba!lCB ' before" slia reaclied the narrows, bel' approach being known; and that suchnegligence oonstituted the cause to which the collision must be' at'lil'ibuted.. " : to,