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But this right might have been exercised by putting the unloaded portion of the cargo of the Eldorado onto the New York, and har. ing one of the salvors accompany it to New York. The frustration of the voyage to the owners and shippers was made more injurious by this separation of the cargo, and the sale of it in a port distant from its destination. The lien of
salvors is not dependent, as are common-law liens, upon possession. With reference to retaining possession, as in all his other movements with reference to the salved property, the salvor must act in the interest of, so to speak, the whole property. Even if he parts with possession, he may enforce his lien upon the property, into whosesoever hands it may come. The Eleanora Charlotta, 1 Hagg. Adm. 156; The John Perkins, 3 Ware, 89. The very essence of the right to claim salvage is a benefit to the owners by the saving of the property. The supreme court, through Justice Washington, thus defines salvage:
"Salvage is allowable as a reward for the meritorious conduct of the salvor, and in consideration of a benefit conferred on the person whose property he has saved." The Brig Alerta, 9 Cranch, 367.
In The India, 1 W. Rob. 408, Dr. Lushington rejected all claim for salvage, on the grounds that the services had been unproductive of advantage to the owners, and that the salvors quitted the vessel, leaving the salvage service incomplete. When we consider the question whether there was benefit in this case, we are struck with the doubtful character of the services, viewed as effectual salvage services, and with the necessary loss caused by the removal of the merchandise to Key West. There is a feature in the case, in favor of the libelants, which we have not overlooked, viz. their prompt coming from Key West to the disabled vessel. We think this is a case where the compensation of the libelants should be pro labore et opere, and not for salvage services.
The libelants, comprising the corps of men who came on the Cora, numbered 22. They were employed about 5 days. The schooner was valued at about $3,500. There has already been an award in the United States district court, eastern district of Virginia, of $2,500 for the libelants' services, so far as relates to the vessel,--the Eldorado. For the libelants' services, so far as relates to the portion of the cargo taken on board the Cora, we think there should be an award to the 22 men who constituted the crew of the Cora of $25 each,—that is to say, of $550,--and to the owners of the schooner Cora of an equal amount. The decree will therefore be that the decree of the court below be set aside, and that there be a decree as above stated; the libelants recovering their costs in the court below, and the respondents recovering their costs in this court.
NELSON V. THE MANHANSET.
(District Court, E. D. New York. December 27, 1892.) NEGLIGENCE PERSONAL INJURY — ABSENCE OF LIGHT AT WINCH FELLOW
SERVANT-ACT IN EXTREMIS.
Libelant stepped into a snarl in the fall of a winch on the deck of a ship, and was drawn into the winch and injured. It was after dark, and there was no light by the winch. After libelant was caught, the man at the winch attempted to stop it, but in his excitement made it go faster. Held, that the absence of a light constituted such negligence as rendered the ship liable, and that the act of the winch man in increasing the speed of the machine was an act in extremis, and did not contribute to the accident. In Admiralty. Libel by Peter Nelson against the steamship Manhanset to recover damages for personal injuries. Decree for libelant.
E. G. Davis, for libelant.
BENEDICT, District Judge. The personal injuries to the libelant, for which he seeks to recover in this action, arose out of his stepping into a snarl in the fall of the winch, which lay upon the deck of the steamer. The fall was not observed by him, because the winch was running after dark, without a light placed so as to enable the fall to be seen by one walking along the deck, and when he stepped into the snarl his leg was drawn into the winch and severely injured. In my opinion, the failure to have a light by the winch, when running after dark, was the cause of the libelant's injury, and was negligence which renders the ship liable for the injury to the libelant resulting therefrom. The act of the man who was running the winch, in making the winch go faster, instead of stopping it, when alarm was given that the libelant was caught in the fall, was an act in extremis, caused by alarm at the dangerous situation of the libelant when caught by the fall. It cannot be held to be a fault of the man at the winch, which contributed to the disaster. The fright of the man at the winch, which caused him to run the winch faster, when it should have been stopped, was one of the results of the failure to provide a light at the winch, and for which the ship is responsible. Let a decree be entered in favor of the libelant, and an order of reference to ascertain the amount of his damages.
MCDOWELL v. THE FRANCE.
(District Court, s. D. New York. January 16, 1893.) SHIPPING-NEGLIGENCE--PERSONAL INJURY-INSUFFICIENT FITTINGS.
Libelant, while shoveling ashes beneath the hatch in the hold of a vessel, was injured by the fall of an ash bag; such fall being due to its weak handle, by which it was hooked to the fall. Libelant had no duty or responsi
* Reported by E. G. Benedict, Esq., of the New York bar.
bility as to the selection, oversight, or charge of the bags used. The court, on the evidence, found that under the circumstances libelant could not be held to be negligent in working beneath the hatch, and that the notices to stand from under, which it was alleged were given libelant, had no reference to the hoisting of the bags, with a view to the possibility of their falling, but were the customary notices given when the empty bags and chains came down. Held, that the ship must supply sound bags for such a purpose, and was responsible to the libelant for his damages caused by the insufficiency of this bag; such damages, for a broken thigh, being fixed at $2,000. In Admiralty. Libel by William McDowell against the steamship France to recover damages for personal injuries caused by the falling of an ash bag down the hatch while he was engaged in shoveling cinders into another bag at the bottom of the hatch. Decree for libel. ant.
Hyland & Zabriskie, for libelant.
BROWN, District Judge. 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 the fact that it broke under such circumstances. I cannot regard the general testimony that the bag was sound and sufficient as overcoming that fact.
The cases cited for the claimants seem to me not applicable here. The libelant had no duty or responsibility in the selection, oversight, or charge of the bags used; and the present case is therein distinguished from the whole class of cases to which that of Cregan v. Marston, 126 N. Y. 568, 27 N. E. Rep. 952, belongs.
Nor can I find the libelant chargeable with contributory negligence in working beneath the hatch. The falling bag struck him while he was shoveling cinders into another bag, as was customary, and this bag was nearly filled. It is not credible that he would have been filling a bag under the hatch, unless there had been matter near by that was required to be shoveled into the bag at that place. On re-reading the depositions of the other workmen who were near him, I do not find it a reasonable construction of that evidence, that the libelant was notified to keep from under the hatch while a bag was ascending, or in respect to any such contingency as the breaking of the bag handles and the falling of an ascending bag. All the witnesses testify that they never had known any such previous breaking; there was no apprehension of it; and, as it seems to me, there is not the slightest probability that the several notices spoken of to stand from under, had any reference to the bags going up, but solely to the bag, rope and chain coming down, since the evidence shows that the persons above when about to throw them down were in the habit of giving notice to the persons below. It was quite natural, and in the ordinary course, that such calls should be repeated to the libelant by his fellow workmen while he was working under the hatch; and I have no doubt that it was such calls, and such only, that are referred to by the witnesses; and those notices had nothing to do with such an acci. deut as this, and indicate no neglect by the libelant.
The ship is responsible for the supply of sound and safe bags for such a purpose. The A. Heaton, 43 Fed. Rep. 592; The Julia Fowler, 49 Fed. Rep. 277; The Persian Monarch, Id. 669; The Wm. Branfoot, 48 Fed. Rep. 914, affirmed, 52 Fed. Rep. 390.
The libelant was severely injured by the fall. The femur was fractured, and to some extent crushed. Shortening of the limb in consequence could not be avoided, notwithstanding the severe treatment applied in the endeavor to diminish the contraction, and the great suffering incident to this treatment. The result is a permanent injury and considerable crippling, disabling the libelant from following his former or any severe occupation, but not such as to interfere materally with many lighter kinds of employment. I award him $2,000, with costs.
THE M. MORAN.
In re PETITION OF MORAN FOR LIMITATION OF LIABILITY.
(District Court, E. D. New York. December 24, 1892.) NEGLIGENCE-COLLISION-LOOKOUT.
A tugboat had towed a vessel to sea, and her pilot was being taken off the ship by a yawl attached to the station boat. As the yawl lay alongside the ship, the tug approached, and, owing to the failure of the wheelsman to see the position of the yawl until too late to stop his boat, the yawl was crushed between the tug and the ship, and two of the pilots in her lost their lives. The owner of the tug filed a petition in limitation of liability. Held, that the accident was due to the negligence of the master of the tug, and her owner was liable in damages. In Admiralty. In the matter of the application of Michael Moran, part owner of the steam tug M. Moran, for limitation of liability.
Carpenter & Mosher, for petitioner.
BENEDICT, District Judge. The sad occurrence which caused the death of two pilots while in their yawl boat alongside the bark Methuselah, by being crushed between that bark and the tug Moran, was the result of negligence. I find no negligence on the part of the pilots; for while it is true that, if the yawl's line had not been cast off from the bark, no injury would have been done, I do not think it was negligence on the part of the pilots to cast off their line when they did.
The bark was moving. The proper thing to do, as soon as the pilot they were taking stepped into the yawl, was to cast off the line. The yawl was in plain sight of the tugboat, and the pilots had a right to suppose that the tugboat would not come close enough to the bark to catch the yawl as it was drifting aft alongside the bark and touching the same. Neither do I think it was negligence on the part of the pilots to attempt to climb on the rail of the tugboat when they saw the tugboat upon them. All in the yawl were at that time in a state of alarm because of the dangerous approach of the tug. To attempt to climb over the rail of the tug when the tug came upon the yawl was a rational thing to do under the circumstances, and
would have been attended with no danger whatever had not the tug kept moving on towards the bark, and thereby caught the pilots, while upon the tug's rail, between the tug and bark, so causing their death. It seems to me clear that the cause of the accident was the neglect of the man at the wheel of the tugboat to pay strict attention to what was before him, whereby he failed to see the position of the yawl until it was too late to stop his boat. Had he seen the position of the yawl when he ought to have seen it, he could have avoided the collision, either by stopping the headway of his boat, or by starboarding his helm. When, at the last moment, he saw the danger, he did just the wrong thing. Such attention on the part of the pilot of the tug as the occasion called for would, in my opinion, havo avoided the collision. Let a decree be entered declaring the petitioner liable to damages in the sum of $5,000.
THE CARL GUSTAF.
LOXLEY et al v. THE CARL GUSTAF et al.
(Circuit Court of Appeals, Fifth Circuit. December 19, 1892)
L COLLISION-TUGS AND TOW-RAFTS.
A Russian bark was being towed from the city of Mobile, through the Mobile river to the bay, and, having passed the turn stake, was following the dredged channel southeastward. At the same time a small tug, with two rafts of logs, the first on a line 200 feet long, and the other astern of It, both aggregating about 900 feet, was coming down the Blakely river channel from the northeast. The parties on the tug could see the bark for a mile or more, and those on the bark could see the tug about a half mile away. The tug first reached the junction of the two channels, and turned northwestward, towards Mobile, keeping as close as possible to the northern edge of the channel. Signals were exchanged to pass port to port, and the bark kept as close as possible to the south bank of the channel, leaving about 800 feet between them. It was ebb tide, and the current swept diagonally across the channel, and carried the rafts so far over that they came into collision with the bark, and were broken apart, some of the logs being lost. The bark was proceeding at moderate speed, and could not have stopped at any time shortly before the collision without going aground. The tug was not of sufficient force to carry the rafts at a speed which would prevent their drifting, and her master testified that the rafts were not of sufficient strength to stand a much greater rate of speed without breaking. Held, on a libel to recover for the lost logs, that the bark was not in fault, as, being a foreigner, her master could not be presumed to know the peculiarities of the local navigation; nor was the fact that she was in charge of a bay pilot sufficient to charge her with such knowledge and extraordinary precautions as would have been necessary to counteract the effects of the insufficiency of libelant's
tug and the unwieldy proportions and feeble construction of the rafts. 2 SAME.
If there was any fault, it was on the part of those in charge of the rafts, who were regularly engaged in the business of towing logs through the channel, and attempted the passage with a full knowledge of its dangers. Appeal from the District Court of the United States for the Southern District of Alabama.