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In an action to recover damages for injuries to scows in New York Bay and harbor on several occasions, alleged to have been caused by swells created by respondent's steamer, which made several trips each day in such waters, where libelant's witnesses were unable to fix the times of such injuries with certainty, but identified the steamer from her appearance, such evidence is not overcome by entries in the steamer's logbook showing that in some cases she was going in the opposite direction from that testified to, or was not in the vicinity at the precise time named by such witnesses in accordance with their best recollection.

In Admiralty. Libel in personam for damages alleged to have been done by the steamer Asbury Park, owned by respondent, to several scows of libelant, on different occasions by the heavy swells created by the rapid passage of this steamer while navigating the upper and lower New York harbors or bays, and in passing the Narrows from the one to the other. The respondent on the trial and in its brief says:

"The eight several causes of action respondent in personam, pursuant to parties for their mutual convenience. priety of such practice."

Benedict & Benedict, for libelant.
De Forest Bros., for respondent.

were united in one suit against the an understanding had between the No question is raised as to the pro

RAY, District Judge (after stating the facts). The evidence shows to my satisfaction that the steamer Asbury Park, running on regular trips from Pier 8, city of New York, to and from Atlantic Highlands, especially when running at speed with the tide, under ordinary conditions causes very heavy swells-swells dangerous to scows in tow of steam tugs or lying still, when within reach or the influence of these swells. She is the largest and most speedy of three steamers run by defendant on this line in these harbors, and quite powerful. Whether these swells are the result of her speed, or of her speed and construction combined, does not definitely appear, but probably they result from both. In any event, it is not disputed that she causes them when at speed, and that they are dangerous to and do damage to loaded scows lawfully and properly in and navigating these waters when properly attached together and handled. This is the effect of these swells made by the Asbury Park at ordinary speed on scows at a distance of from 1,000 to 1,500 feet away. When passing at a closer distance, these swells have caused these loaded scows to overturn-"turn turtle." When the speed of the Asbury Park is reduced to a reasonable degree, these dangerous or injurious swells or surges are not created by her. The evidence, therefore, shows that by careful navigation the respondent may avoid these injuries. It may be regarded as settled that a steamer of this character under such conditions in these waters is not run or navigated with proper care when navigated as above described, or when run at such a rate of speed in the neighborhood of such smaller craft as these scows as to create these heavy and dangerous swells. The Asbury Park (D. C.) 138 Fed. 617, affirmed (C. C. A.) 142 Fed. 1037; The As

146 F.-39

bury Park (D. C.) 138 Fed. 925. Ocean steamers passing these scows in these waters under their own steam do not create such dangerous swells. In 138 Fed., at page 618, it was held:

"The evidence establishes: (1) That swells did affect the dumpers so as to cause the injury; (2) that the swells were caused by the Asbury Park; (3) that if the speed of the Asbury Park is properly reduced, and if she passes at a proper distance from a tow, she produces no injurious swell. As she did cause an injurious swell, it is inferable that she was not observing the customary care which she had theretofore deemed requisite for safety."

The evidence shows that the Asbury Park was accustomed to pass these scows at full speed, and it seems clear she must be held in fault for not slackening her pace, so as to reduce the surges caused by her passage to the safety limit. The evidence as to each and every occurrence set forth in the libel shows that some damage was done to the scow of the libelant mentioned therein. This damage was more serious in some cases than in others. The main contention on the trial was the identity of the steamer doing the damage. Libelant's witnesses claim to have identified the Asbury Park as the one creating these swells or surges, and they say no other vessel that could have done this was near at the time. The size, shape, or general build, speed, and color of awnings, etc., were in some cases relied upon as means of identification. Many of the witnesss had seen the Asbury Park at close quarters, and knew her by name, having read it thereon. It is quite probable and credible that such a steamer navigating these harbors daily, and making several trips each day, would be readily recognized from her general appearance by those familiar with such craft. There is no evidence there was any other steamer navigating these harbors at this time of her size, general build, and appearance, and liable to be mistaken for her. The witnesses for the libelant speak of having met her or of having passed her at the times the injury was done at about an hour named, but except in one, or, possibly, two, instances, they do not attempt to fix the hour with any certainty. In some instances they state that the Asbury Park was going towards New York when the injury was done, and in others that she was making towards the Highlands. The respondents produce the logbook of the Asbury Park, and from it show that in some of the instances named by libelant's witnesses she was in fact proceeding in the opposite direction. From this it is argued that it must have been some other vessel that created the swells or surges and did the damage. If the witnesses of the libelant had made memoranda at the time, instead of relying on memory, or it had been shown that the injury alleged could not have been caused by a vessel going in the direction of the Asbury Park was proceeding as shown by "the log" of the Asbury Park, this evidence would be more potent and convincing. The Asbury Park made the trip from Pier 8 to the Highlands, 17 nautical miles, in 67 minutes usually, and the return trip in about the same time. She made no intermediate stops except for special cause, in which case it was noted in the logbook, as was any material slackening of speed for special reasons. rate of speed was not uniform, as it stands to reason that in leaving Pier 8, for instance, she would proceed slowly and carefully if the


Harbor was crowded at the time in that vicinity, and then go more rapidly as the way became entirely unobstructed. For these and

other reasons it could not and cannot be stated just where she was at a given time, unless when at her pier or at the Highlands, and on the occasion of special stops and delays. The evidence of libelant's witnesses, who appeared fair and honest, is not to be discredited because the log of the Asbury Park would make it appear, assuming she proceeded at a uniform rate of speed, that she was not at or near the place of the injury when it occurred, assuming such injury was sustained at the precise time named by libelant's witnesses according to the best of their recollection. Recollection may have been at fault anywhere from 15 minutes to an hour, and, taking the times of arrival and departure for the Asbury Park from her log, and allowing for tide and obstructions in some cases, and errors in recollection, we see at once that the variations in time are not of great weight. So the witnesses may be easily and honestly mistaken as to the direction in which the Asbury Park was proceeding. The surge or swell would be the same in either case. The witnesses would not have her direction impressed on their memory unless there was some special event or circumstance to call that particularly to their attention. But where the discrepancy is so great in time as to show that the Asbury Park could not have been at or near the place of injury at the time the evidence adduced by the libelant shows it was or must have been done, then it is the duty of the court ot exonerate her from fault; for it was incumbent on the libelant to show an injury to his scow from the improper navigation or management of the Asbury Park at near the time mentioned in the libel. Where the evidence shows the time when and the place where the injury was done, and that the Asbury Park was not there or in that vicinity, a perfect defense is shown. But it is not sufficient, in the face of positive identification by libelant's witnesses, to show by the log of the Asbury Park that she may not have been there, or that under ordinary conditions she probably was not there, so as to be the author of the swells that did the damage. In The Asbury Park (D. C.) 138 Fed. 617, at page 618, Judge Thomas aptly said:

"The claimant bases an argument upon discrepancies in the statements of the libelant and its agents and servants as to time. But experience teaches that misstatement of time and distance is a common error, and departure from accuracy in such regard in this case is not sufficient to override the evidence that the offending vessel was the Asbury Park."

The respondent gave no evidence whatever as to the speed of the Asbury Park on these occasions; that those in charge of her did or did not observe these scows, or pay any attention to them, or slow down as she passed, although she passed close to some of them, and libelant's witnesses say she passed at her usual and regular rate of speed. Libelant was free from fault, as these scows were properly attached in the tows, and properly and carefully managed.

The libelants have established their case except as to the matter set forth in paragraph 9 of the libel, which could not be proved because of the death of the witness.

The libelant will have a decree in the usual form.


(District Court, S. D. New York. April 26, 1906.)


Where a bill of lading expressly gave the shipowner the right to hold the shipper for any charge under the contract, the fact that such owner did not enforce its right, also given thereby, to collect demurrage for detention in discharging from the consignee, or by enforcing its lien on the cargo at the port of discharge, did not estop it from collecting such demurrage from the shipper, especially where the shipper consigned the cargo to itself, and, although it indorsed the bill of lading to another, remained the owner until actual delivery.

[Ed. Note.-Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.]

In Admiralty. Suit for demurrage.

Wheeler, Cortis & Haight, for libellant.

Wing, Putnam & Burlingham, for respondent.

ADAMS, District Judge. This action was brought by the Tweedie Trading Company, the chartered owner of the steamship Sangstad, to recover from the Pitch Pine Lumber Company 12 days' demurrage of the said steamer, said to be due by reason of her detention in unloading at Buenos Aires, Argentina, in September, 1905. A contract was made between the parties for the transportation of the lumber in a letter, of which the following is a copy:

The Pitch Pine Lumber Co., City.

"New York, June 26th, 1905.

Dear Sirs: We beg to confirm freight booking with you, under deck, on one of our steamers, for shipment of 1,600,000 superficial feet, say two (2) lots of 800 M. feet each, white pine lumber from Portland, Me., to Buenos Ayres, Argentine, part cargo via port or ports, steamers option, shipment subject to all terms and conditions of B/L as per copy attached; freight Nine Dollars ($9.00) per thousand superficial feet intake measure and intaken survey, prepaid at New York, July or August shipment, steamers option, your option of cancelling this contract if steamer does not report for cargo by 6 p. m. August 10th. Cargo to be received and delivered within reach of steamers tackles at ports of loading and discharging, as fast as vessel can receive and deliver, and at such berths where steamer can always safely lie afloat. We to give shippers fifteen (15) days notice of a steamer's expected readiness to load. Steamer to load at such wharf as designated by shippers and to discharge at such wharf as designated by consignee.

Yours very truly,

The Tweedie Trading Co.,.

The Tweedie Trading Co.,

(Sgd) by M. Stanley Tweedie, President.

(Sgd) A. V. Moore, Jr., Secretary. We hereby accept the above contract.

The Pitch Pine Lumber Co., (Sgd) by G. R. Crossley, Vice Pres. & Treasurer."

The form of bill of lading referred to contained the following clauses:

"(7) Also, that the carrier shall have a lien on the goods for all freights, primages and charges; and also for all charges, expenses, fines, liability or damages which carrier, ship or cargo may incur or suffer by reason of any

illegal, incorrect or insufficient marking, numbering or addressing of packages, or description of contents, or for any illegal or improper act of shipper, owner or consignee, and also for all other sums for which shipper, owner or consignee may be liable hereunder to carrier; and that such lien shall continue after delivery of the goods until paid; and the shipper shall also be liable therefor. (8) Also, Steamer to commence loading immediately upon arrival at the port of loading, and to load continuously, working all hatches at once, any custom of the port to the contrary notwithstanding. Any detention on the part of the shippers in supplying cargo as fast as steamer can receive to be accounted for by the payment of demurrage by them at the rate of eight pence British Sterling per Steamer's net register ton, and Steamer to have a lien on cargo for same, unless contrary agreement outside of this Bill of Lading.

(9) Also, that the ship may commence discharging immediately upon arrival and discharge continuously any custom of the port to the contrary notwithstanding, the Collector of the Port being hereby authorized to grant a general order for discharge immediately upon arrival, the goods to be taken from the ship's tackle, where the carrier's responsibility shall cease by the consignee without notice immediately the vessel is ready to discharge, package by package as they come to hand in discharging the ship; and if the goods be not so taken from the ship all responsibility of ship or carrier therefor, either as carrier, bailee or otherwise, shall be thereupon ended and the agent or master of the ship shall have liberty, for account of, and as the servants of shipper, owner and consignee, all and any of them, and at their sole risk, charge and expense, to hire lighters and craft for the landing of the goods, to enter and land the same, to put them in hulk, craft or store, or deposit them in or upon wharf, ware house, public stores or Custom House, or permit them to lie where landed, according to the best judgment of said agent or master which shall be final and conclusive upon all persons interested without previous notice to shipper, owner or consignee, and thereupon the goods shall be deemed to be fully delivered, the carrier retaining a lien thereon until payment for all costs, charges and expenses incurred and also as hereinbefore provided, and the goods to be subject to storage, wharfage and other charges. If the steamer discharge at wharf consignees to receive cargo there, as above provided, and any detention on the part of the consignees or owners of the cargo in receiving cargo as fast as Steamer can deliver in lighter, if the Steamer discharges in lighters, or in receiving cargo at wharf, if Steamer discharges at a wharf, Steamer working all hatches at once, in both instances, to be accounted for by the payment of demurrage by them at the rate of eight pence British Sterling per Steamer's net register ton, and Steamer to have a lien of cargo for same, unless contrary written agreement outside of this Bill of Lading."

The steamer was loaded with about 1,600,000 feet of yellow pine and spruce lumber at Portland and, when using all of her 5 hatches, at the rate of about 400,000 feet per day. Other lumber besides that in question was taken aboard. She was loaded for three ports, Rosario, Campana and Buenos Aires. She was duly loaded and sailed on the 5th of August, and arrived at the last place on Sunday the 3rd of September and entered at the Custom House on Monday the 4th of September at 10 o'clock. That afternoon orders were received to go to unloading berth, but on reaching there the next day about 8 o'clock A. M., she found the wharf occupied by another vessel, the steamer Cape Nor, and was obliged to lie outside of her. The Cape Nor was also some distance, about 20 feet, from the wharf, on account of shallow water. Discharging was then commenced to the shore over the other steamer and into lighters outside and continued until the 13th of September, when the Sangstad was shifted to another berth, where the discharging was finished on the 19th. At the

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