WALLACE, Circuit Judge. The libelant, a fireman in the service of the steamship, was severely injured while assisting in the removal of ashes from the vessel. The steamship, at the time, was lying alongside her dock in the port of New York, and the ashes were being removed from her stokehole in canvas bags, which were filled in the stokehole, and then hoisted by a chain and winch to the main deck, whence they were carried by hand to carts stationed on the dock, and their contents discharged. The libelant and two other men were assigned the duty of filling the bags and hooking them to the chain. One of the bags, after it had been filled, weighing about 120 pounds, and while it was being hoisted by the winch, fell a distance of about 25 feet, and struck the libelant. It was found that the rope handle by which the bag had been attached to the hook had parted. The question for decision is whether the steamship was in fault for providing an unsafe appliance for the work which the libelant was required to do. The district court condemned the steamship upon the theory that the bag was not sufficiently strong for safe use. While there is evidence in the record which tends to show that the accident was caused by the negligence of some of the fellow servants of the libelant, there is none upon which negligence can be imputed to the steamship, aside from that which relates to the sufficiency of the bag. An employer does not undertake absolutely with his employes for the sufficiency or safety of the appliances furnished for their work. He does undertake to use all reasonable care and prudence to provide them with appliances reasonably safe and suitable. His obligation towards them is satisfied by the exercise of a reasonable diligence in this behalf. Before he can be made responsible for an injury to an employe inflicted by an appliance adequate and suitable, ordinarily, for the work to be performed with it, there must be satisfactory evidence that it was defective at the time, and that he knew, or ought to have known, of the defect. The decision in the court below proceeded upon the ground that negligence was to be presumed from the circumstances of the accident. In his opinion the learned judge said: "The evidence does not show anything out of the usual course that should cause the handle of the ash bag to break while it was hoisting up. Its weak and insufficient condition must be inferred from its breaking under such circumstances. I cannot regard the general testimony that the bag was sound and sufficient as overcoming that fact.” The presumption of negligence is often raised by the circumstances of an accident, and it may be a legitimate presumption that an appliance which gives out while it is being used for its proper purpose, in a careful manner, is defective or unfit. How far that presumption may go, in an action by an employe against an employer, to shift the burden of proof from the former to the latter, must depend upon the circumstances of the particular case. The mere fact that the appliance is shown to have been defective is not enough to do so; it must appear that the defect was an obvious one, or such as to be discoverable by the exercise of reasonable care. In the present case we think the circumstances of the accident do not show that the bag gave way because it was not reasonably adequate for the occasion, but they show that it gave way because a violent and unnecessary strain was put upon it. The bag was a comparatively new one, made expressly for an ash bag, and of the kind customarily used as it was being used when the accident took place. It had been bought in London on the previous voyage of the steamship and was being used interchangeably with several other similar, but older, bags, which were apparently sufficiently strong. It had been filled and emptied several times, as had the others, immediately before it fell. The storekeeper, who had the custody of the ash bags, had not observed any defect in it. Neither had any of the cthers of those in the employ of the steamship whose duty it was to supply, or repair, or use the ash bags. The bag had two handles, and, on the occasion in question, was fastened to the chain by passing one handle through the other, and hooking that handle to the chain. There was no reason why the hook should not have been passed through both handles. The evidence is that this was frequently, if not generally, done. Hooked as it was, the whole strain fell upon one handle, instead of being distributed between both. While the bag was being hoisted, the chain slipped off the drum of the winch, jerking the bag violently, and the handle gave way. In view of its apparently sound condition before the accident, we cannot assume that it would have given way if it had been fastened to the hook so that the strain would have come upon both handles instead of one, or even that it would have given way fastened as it was, except for the slipping of the chain. The evidence does not show how the chain happened to slip, and we are left wholly to conjecture whether those in charge of the hoisting apparatus were negligent. If they were, as they were fellow servants of the libelant, their negligence cannot afford him a ground of recovery against the steamship. We are satisfied that there was no negligence on the part of the steamship, and that the accident to the libelant was not a culpable one, or, if it was a culpable one, was caused by carelessness which cannot be attributed to the vessel. The decree is reversed, with instructions to the district court to dismiss the libel, with costs. The AGNES MANNING. BRISTOL CITY LIME CO. v. The AGNES MANNING. (District Court, E. D. New York. January 11, 1894.) SALVAGE-DERELICT. Fifty per cent. of the value of a vessel, and expenses, was allowed as salvage, when it appeared that the vessel, when picked up by the libelant's steamer, was derelict, having been abandoned a week, and was leaking, with 10 or 11 feet of water in her hold; that a previous unsuccessful attempt at towing had been made by another steamer; and that libelant's steamer had brought her into port in safety, after 6 days' towing. v.59f.no.4- 31 In Admiralty. Libel for salvage. Decree for libelant. BENEDICT, District Judge. This is an action brought in behalf of the owners, master, and crew of the steamship Exeter City to recover salvage compensation for services rendered the schooner Agnes Manning. In March, 1893, the steamship Exeter City, a merchant steamer bound to New York, when about 420 miles east of Sandy Hook, fell in with the schooner Agnes Manning, abandoned. Manning was laden with a full cargo of coal, had been abandoned for about a week, was leaking, and when boarded had 10 or 11 feet of water in her hold. Previous to the abandonment, an effort had been made to tow the schooner by the steamship Nestoria. The effort, however, was given up after two hawsers had been broken. Thereupon the crew of the Manning left their vessel, and went on board of the Nestoria, which proceeded on her voyage. The Exeter City, about a week after, made fast to the Manning, put men on board of her, and, after six days' towing, brought her into the port of New York in safety. The appraised value of the Manning is $27,000, and her cargo $2,000. The service was performed at an expense to the owners of the Exeter City of $850. The remarks of this court made in deciding the case of The Anna, 6 Ben. 166, Fed. Cas. No. 398, more than 20 years ago, where it is said: "For the taking in charge and saving of a wreck so situated the reward should be such as to insure at all times the rendering of any amount of labor, the incurring of any risk, and the deviation by any vessel from any voyage, in order to supply the wreck with a crew, and make her presence safe," may be repeated here. The libelants are entitled to a liberal salvage compensation for the services rendered. The only question is what would be a liberal compensation. It is claimed on behalf of the libelants that the amount awarded should very much exceed the average amount heretofore given in cases of derelict, it being now apparent that the rewards given are not sufficient to induce vessels to incur the hazard of towing a wreck, so that commerce is impaired by the number of floating wrecks left abandoned, and the government itself has felt it its duty to send national vessels out in order to destroy these obstructions to navigation. This consideration is not without weight in determining the amount of salvage in a case like this. In my opinion, 50 per cent. of the value of the property saved will be a liberal reward, deducting first the sum of $850, expended by the salvors, which sum is to be first paid to them. THE CAYUGA. LEHIGH VAL. TRANSP. CO. v. MILLER et al. (Circuit Court of Appeals, Sixth Circuit. No. 99. December 4, 1893.) 1. PAROL EVIDENCE-RECEIPTS-RELEASE AND DISCHARGE. A writing which, besides being a receipt, contains stipulations of release and discharge from all claims growing out of a collision except one, cannot be disputed or controlled by parol evidence. Association v. Wickham, 12 Sup. Ct. 84, 141 U. S. 564, distinguished. 2. RELEASE AND DISCHARGE-CONSIDERATION-VALIDITY. Where one consents to pay in full a bill the correctness of which he in good faith disputes, only on condition that certain other demands against him shall be released, such payment constitutes a good consideration for the release. 3. COLLISION-DAMAGES-LOSS OF USE-TOWAGE. Where a barge in tow of a consort belonging to the same owners, which can tow her with little extra expense, is injured by the fault of a strange vessel, so as to lose her trip, the value of her use as an item of damages should not be diminished according to the arbitrary rule which allows one-third of the gross earnings for towage, but only by the actual expense the towage would have caused. 4. ADMIRALTY-APPEALS-COMMISSIONER'S REPORT-EXCEPTIONS. Alleged errors in a commissioner's report will not be considered unless they were clearly excepted to, so as to bring them to the notice of the court below. 5. SAME-REVERSAL OF ERRONEOUS FINDING. A finding of a commissioner on a question of fact will be reversed when clearly erroneous. Appeal from the District Court of the United States for the Eastern District of Michigan. In Admiralty. Libel by John A. Miller and others against the steamer Cayuga (the Lehigh Valley Transportation Company, claimants) for collision. Decree for libelants. Claimants appeal. Modified and affirmed. Statement by SEVERENS, District Judge: On the 28th day of April, 1890, the propeller D. M. Wilson, with her consort, the barge Manitowoc, both being then owned and employed by the libelants, was proceeding on a voyage from Kelly's island to Duluth under charter for a cargo of wheat to be carried from the latter place to Kingston, and when they were in the vicinity of Port Huron the Manitowoc was run into by the steamer Cayuga, a vessel belonging to the Lehigh Valley Transportation Company, the above-named appellants, and was seriously damaged. In consequence of her injuries, the Manitowoc was obliged to go into dock at Detroit for repairs, where she was detained for that purpose for the period of 18 days, and then returned to Lorain, her ultimate destination. The result was that she lost her trip. The Wilson, after getting her consort into port, proceeded to Duluth, took on a cargo, which she carried to Kingston, and then came back to Lorain, where she joined the Manitowoc, it being according to the original purpose that the two vessels should come to that port after discharging their cargo of wheat at Kingston. The arrival of the Manitowoc at Lorain was on the 18th day of May. The arrival of the Wilson at Kingston was on the 14th. The crew of the former vessel quit on her return to Detroit disabled. The liability of the Cayuga for the consequences of the collision seems not to have been much disputed. At all events, the parties set about a settlement of the damages upon the assumption of such liability. A large item in the bill presented by the libelants to the manager of the Cayuga was that of $2,380.20 for repairs upon the Manitowoc at Detroit. Another was for the loss of her earnings during the time she was delayed. There were other items of damage claimed, the particulars of which will be mentioned further on. The manager of the Cayuga, soon after the collision, agreed to pay for the repairs, and sent the dock superintendent to look after them. When they were completed, the bill was made out and sent to the libelants, by whom it was paid. The claimants contend that, on this bill being presented to the manager of the Cayuga, with the other items above mentioned, he disputed its correctness, and contended that it was too large, and covered repairs not made necessary by the collision, but agreed to pay the bill as rendered if that would be treated as a settlement of all claims arising from the collision, except for the loss of the use of the vessel during the time she was unfitted for service. The libelants contend that there was no real question of the correctness of the bill, or of the claimants' liability to pay it. It was, in fact, paid, and the following receipt and release was drawn up, signed, acknowledged, and delivered to the claimants: "For and in consideration of the sum of $2,080.20 to us in hand paid by the Lehigh Valley Transportation Company by the hand of W. P. Henry, general manager of said company, for and on account of the steamer Cayuga, and her master and owners, being for repairs on the barge Manitowoc by reason of the collision with the said steamer Cayuga in the Detroit or St. Clair river during the month of April, 1890, the receipt whereof is hereby acknowledged and confessed, we, the owners of the barge Manitowoc, hereby release and forever discharge the said steamer Cayuga, her master and owners, and the Lehigh Valley Transportation Company, of and from all claims, actions, demands, or causes of action of whatsoever name, kind, or nature, by reason of injuries sustained by said barge Manitowoc by reason of a collision in Detroit or St. Clair river between the said barge Manitowoc and the said steamer Cayuga, this being in full settlement of all claims made by us for injuries to said barge Manitowoc; but it is understood that the claim made by the owners of the barge Manitowoc for the loss of the use of the said barge Manitowoc is left open. "In witness whereof we have hereunto set our hands and seals this 21st day of June, 1890. [Signed] "John A. Miller, Managing Owner Barge Manitowoc. [L. S.]" Attached to this was a certificate of acknowledgment signed by a notary public at Buffalo. The parties failing to agree upon the other grounds of liability, Miller and his associates filed their libel in the court below to recover the unpaid damages. The claimants answered, denying fault on the part of the Cayuga, an also insisting upon the settlement and receipt of all claims except for the use of the Manitowoc during the time she was disabled, which settlement they alleged was made to buy peace and save litigation. Proofs were taken, and a decree was passed in favor of the libelants, finding that the collision was occasioned wholly by the Cayuga's fault, and a reference was ordered to a commissioner to take proofs upon and report the damages. The items of damage found and reported by the commissioner were as follows: (a) Loss of profits which would have accrued to libelants under their charter, the sum of thirteen hundred and eight dollars and forty-eight cents.... .$1,308 48 381 00 (b) Damages to Manitowoc and expenses in consequence of col- cents Making the total amount of....... Upon this, interest is computed from May 20, 1890, the date of completion of repairs, to date of this report, at six per cent., one year, ten months, and two days..... 362 50 .$2,051 98 229 11 $2,281 09 |