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only 102 cases were broken, and that some were so injured that the tin cans were sent without being inclosed in wooden cases.
The lighters were small boats, about 35 feet in length, which were towed by tugs procured by the steamer, and put in charge of the government customs officers at the Registro or Trepeche, as required by the local regulations for such cargo. No men were on board the lighters, either during transportation, or when left at the Registro or Trepeche; but the boats remained in sole charge and control of the government officers until the duties were paid and the goods landed. Before the discharge of the cargo, the petitioners, as well as other consignees of the cargo, had been notified by the officers of the vessel of the arrival of the ship, with the request that they should receive the goods at once. On February 28, a letter was sent by Mr. Burt, the ship's agent, to the petitioners, calling attention to the fact that the lighters were already on demurrage for their failure to unload. The oil was allowed to remain by the petitioners in the care of the customs authorities for about nine weeks until the 29th of April, when it was discharged from the lighters; and at that time, as is alleged by the petitioners, the loss and damage were as above stated.
1. I am of the opinion that the evidence in favor of the petitioners is not sufficient to show nondelivery of the 1,132 cases. Under the peculiar circumstances of this cargo, and the regulations and customs of the port of Rio, and the provisions of the bill of lading, I think the ship is responsible only for a good delivery into the lighters, and to the customs authorities. But aside from this consideration, and saying nothing of the interval of nine weeks which elapsed between the discharge of the cargo by the ship into the lighters, and the discharge on shore under the customs authorities, there is no competent legal evidence showing that there was any shortage in the number of cases finally delivered on shore, except the 102 cases above referred to. No witness for the petitioners is produced who tallied or counted the cases received. The testimony of Mr. Carregal rests entirely on an alleged account rendered by the customs authorities of the amount discharged on shore; while that account is not produced, and the customs officers, whose testimony was sought to be taken by commission, refused to testify. The testimony of Mr. Carregal, upon cross-examination, shows that his previous statements were hearsay only. The only count which the petitioners' clerk Doerzapff testified to, is a count of 209 empty tins, placed in a lot by themselves. As against the general testimony for the ship of a discharge, in good order, in accordance with the manifest, except 102 cases, the burden of proof to show shortage was on the petitioners.
2. As respects the 1,005 alleged to be damaged, Doerzapff testifies that "a count of them by weight by the customs authorities made of that lot 287 cases empty." Allowing this statement as evidence, it would show that the loss on the 1,005 cases was equivalent to a loss of 287 cases of oil, besides the 209 empty cans before referred to. These two items spoken of by Doerzapff would embrace the 102 cases (204 cans) referred to by the ship's officers.
If the ship, therefore, was responsible for the condition of the oil at the time when it was discharged from the custom house, the petitioners would be entitled to recover for 287 cases and 209 cans. But as the bill of lading expressly provided that the lighterage should be "at shipper's risk," and evidently contemplated the removal of the cases within two days after they were placed on the lighters, and as they were nevertheless suffered by the consignees to remain upon the lighters for upwards of nine weeks in open boats, some of the cases in a leaking condition, wholly exposed to the weather and to the corrosion of salt water and rain water, which Mr. Burt's testimony proves must have injuriously affected them, any loss or damage that may have been suffered through these causes during this extraordinary, and apparently inexcusable, delay by the consignees, cannot be charged upon the ship, since the latter had no control over the custody or delivery, and the exception of "lighterage at shipper's risk" must include all damage or loss while on the lighters without the ship's fault. As I have already said, so far as the direct testimony goes, there is no evidence that the cargo was delivered upon the lighters in a bad condition beyond the 102 cases, as testified to by the ship's officers; and beyond this, no fault on the ship's part is shown. Supposing that some of the cans were leaking at the time when put upon the lighters, still the extraordinary delay by the consignees in subsequently entering and receiving their goods was at their risk; and no continuance of leakage could be charged upon the ship after the lapse of a reasonable time for the petitioners to get the goods from the lighters through the custom house authorities. The evidence, as I understand it, shows that the ship had no power whatsoever over the final delivery; and under the terms of the bill of lading, therefore, the ship was not responsible for what happened upon the lighters from such delay, whether caused by the custom house authorities, or purely by the confessed inactivity of the petitioners themselves.
There are no definite data in the evidence for determining with precision how much of the loss of 287 cases of oil in quantity, should be charged to the ship, and how much to the petitioners' delay. Whatever damage was done on board of the steamer, or during the discharge into the lighters by the stevedore employed by the ship, must be charged against the steamer, as well also as such additional loss of oil as would arise after the discharge upon the lighters by leakage, through the previous damage to the cases until the lapse of a reasonable time for the receipt of the goods by the consignees from the custom house authorities. Upon the whole testimony, the best estimate and allowance I can make for the leakage and loss chargeable to the ship, is for 500 cans, i. e., 250 cases, the value of which was $1.25 per case, for which, with interest from April 29, 1893, the petitioners may enter a decree, with costs.
THE ROBERT HADDEN.
THE MATTIE NEWMAN.
MAYOR, ETC., OF CITY OF NEW YORK v. THE ROBERT HADDEN et al.
(District Court, S. D. New York. April 26, 1895.)
DAMAGES BY COLLISION-CITY VESSEL-ADVERTISED BIDS.
The city's vessel being damaged by collision, bids for the repairs were advertised for, as required by the state law, and the city accepted the one bid offered, and claimed that amount as the measure of damages. Upon a hearing before a commissioner, he found the actual damage to be much less than the amount paid under the accepted bid. Held, that the reasonable cost of the repairs was the rule of damages, and not the amount paid; especially, as there appeared to be negligence in the city officers in not procuring surveys on notice, as usual, nor ascertaining the probable damages before accepting the bid.
This was a libel by the mayor, etc., of the city of New York, against the steam tug Robert Hadden and the schooner Mattie Newman to recover damages resulting from a collision.
William H. Clark, Corp. Counsel, and James M. Ward, Asst. Corp. Counsel, for libelant.
Wing, Shoudy & Putnam and C. M. Hough, for the Robert Hadden. Alexander & Ash, for the Mattie Newman.
BROWN, District Judge. The libelant's vessel, Havemeyer, having been damaged through the fault of the respondent's tug, the damages have been assessed by the commissioner, to whom it was referred, at the sum of $1,785, with interest. Exceptions have been taken to the report, because the commissioner allowed for the repairs of the Havemeyer a less sum than was paid by the city upon the contract awarded by it to the lowest bidder for doing the repairs, according to the law governing the city upon expenditures in excess of $1,000; and also because certain wages of the men on board the Havemeyer while she was laid up for repairs, were not allowed, nor any demurrage.
The commissioner, in his opinion, has carefully treated each of these claims, and I concur in the result at which he arrives. As respects the last two items, the evidence shows that the city has not sustained any pecuniary loss in these respects through the accident. As to the first item, the cost of repairs, the court, on the trial of the cause, admitted proof of the advertisement and award of the contract for doing the repairs pursuant to the law governing the corporation, and held them sufficient as prima facie evidence of the libelant's damage. Upon the reference before the commissioner various witnesses have been examined on this subject, and the weight of proof seems to me to sustain the commissioner's report, that the Havemeyer was damaged to the extent of $1,785 only, and not in the sum of $2,864, the amount of the single bid offered for doing the repairs, and which bid the city accepted, and paid. Assuming the actual damage to the Havemeyer to be the former sum only as the reasonable cost of doing the repairs, if in consequence of the law
governing the corporation the city was obliged to accept the single bid offered, although I do not understand that the city is ever bound to accept an 'excessive bid, still the additional amount paid, over a fair award for the damage actually inflicted, is not a loss occasioned by the act of the respondents, but a loss arising incidentally to the city through the contract system imposed on it by law. If that mode of securing work to be done for the city is deemed best for the city's interests in the long run, it cannot change the rule of law in admiralty causes, nor impose a rule of damages different from that which applies as regards all other suitors. In this case, moreover, there would seem to have been neglect in the city officers, in not procuring surveys on notice to the defendant as usual, and in not making the customary efforts to ascertain the probable actual damage before accepting the bid.
Exceptions overruled and report confirmed.
MONTVET et al. v. THE DORIAN.
(District Court, S. D. New York. March 28, 1895.)
COLLISION-STEAM AND SAIL-OPPOSITE COURSES-CONTRADICTION AS TO LIGHTS -NEITHER STORY CREDIBLE-INATTENTION-BAD LOOKOUT-CHANGE OF COURSE-CLOSE SHAVING.
The schooner S. going west, and the steamer D. going east, in a clear night came in collision in Long Island Sound, N. W. from Eaton's Point light. Their proper courses were opposite, and the S. had a fair wind. Each charged the other with sheering to the south just before collision, when on courses to clear by 500 to 1,000 feet. The testimony as to the lights seen, and those exhibited to the other, was irreconcilable. The D. claimed that she turned to the south sufficiently to avoid collision when at a reasonable distance from the S. The master of the S. made a certain mistake in one particular as to his change of course, upon which fabrication of testimony was charged. Upon an analysis of the evidence as to the navigation, held: (1) That for some minutes before collision the vessels' courses were within one-half point of opposite, and nearly head and head; (2) that no attention was given to the schooner by the D. until less than a minute before collision, when she changed 12 points more to the southward; (3) that the master of the schooner incorrectly located the S. on his starboard bow, from viewing her from the starboard side of his own vessel, and changed his course to the south at about the same time the D. changed; (4) that the S. was in fault for the latter change, and the D. in fault for inattention and bad lookout, and for not taking timely measures to avoid the S. by a reasonable margin; and the damages were divided.
This was a libel by John C. Montvet and others, owners of the schooner Clara E. Simpson, against the steamship Dorian, to recover damages resulting from a collision.
Carver & Blodgett and J. Langdon Ward, for libelants.
BROWN, District Judge. At about 11 o'clock on the night of December 4, 1894, the libelants' schooner Clara E. Simpson, bound west through Long Island Sound, was sunk with all on board, in a
collision with the steamship Dorian, bound east. The collision occurred at a point about 2 miles N. by W. from Eaton's Point light. The stem of the steamer struck the schooner's starboard side near the mizzen rigging, at an angle of from two to four points. master and two others were rescued; the rest of the crew were drowned. The above libel was filed to recover damages for the loss of schooner, cargo, and personal effects.
Each vessel charges that the collision was caused by the fault of the other, through a sheer made to the southward shortly before collision. Each admits that a change of course was made to the southward; but each avers that her own change was so long prior to the collision as to be in no degree the cause of it.
The steamer's witnesses say that the schooner's red light was seen about two miles distant, a half point on their starboard bow; that the steamer's heading was then at once changed from E. N., to E. by S. 1 S., so as to bring the schooner's red light one point on the steamer's port bow; that the schooner at no time showed her green light, but only her red light, until a few moments before collision, when being only about 700 feet distant and two or three points on the steamer's port bow, she suddenly showed both lights and ran under the steamer's stem. The master of the schooner, on the contrary, who was in charge of her navigation, says, that at no time did the schooner show her red light to the steamer, but only her green light; that when the steamer was two or three miles distant, upon being reported by the lookout, he went to the forecastle head, and with his glasses made out both colored lights of the steamer a little on his starboard bow; that he remained there until the steamer shut in her red light, and showed her green light only, about a mile distant and considerably upon his starboard bow; that he then went aft, and that the steamer, when her green light bore about two or three points on his starboard bow, and being 400 or 500 yards distant, as he estimated, suddenly turned to the southward, showed both lights, and ran down upon him, as before stated. Not only are these statements utterly irreconcilable, but each ascribes to the other an extremely improbable course of navigation. Each practically alleges that when all danger of collision was past, and the vessels were heading away from each other so as to pass at a distance of from 500 to 1,000 feet apart, the other, without the least reason, turned to the southward and ran into collision.
An undoubted error in the statement of the master of the schooner as to the time and place when he put his vessel on a west course is pointed out by the respondent's counsel. Early in the evening the schooner had come to anchor about three miles eastward of Eaton's Point light. At about 10 o'clock p. m., the wind springing up from N. by E., she again got under way, closehauled on the starboard tack. Soon afterwards the captain gave the wheel to the wheelman, and she was put upon a course N. W. by W., one point free, and making about 41⁄2 knots per hour. The captain says that the change to west was afterwards made when Eaton's Point light bore S. W. by W., which would be at a point three miles east of the place of collision, a point which was nearly dead to windward of the