mE pENTZ.
5Z5
npon the ve!!sel. It is incredible that s4ipper, secured this option" and carefully proVided that it should be exercised" on arrival,· and by presumption of law' P-llrvrng paid for tpis privilege. immediately waived it intentionally, and· then info.rmed bis agent of this option for his future' guidance. IIi .my judgment, therefore, the charter clearly controls. The master was not authorized to treat the bill of lading as waiving the option secured by the charter, or as designating anything more than the primary port where he was to receive from the charterer's agent his final orders as to the particular place of delivery. The manifest sh()uld have stated the provision for final orders at New York, or the several alternative places,' aMording to thecharler. There· would then have been no difficulty in delivering at Perth Amboy; and, even after the vessel had been at New York, though there would have been doubtless ·some inconvenience and delay, I think. there was no insuperable obstacle. Wyncoop, Vessels & Voy.§ 341. No objections of that kind were stated by the master at the time. The complaint made of ice around Perth Amboy seems much more likely to. have been the determming consideration, in connection with the reading of the written documents, in leading the captain to refuse to proceed thither. There iel no evidence, however, that the ice was such as 'to furnish a legal defense, and no such defense is Decree for the libelants, with costs.
made.
.
THE
DENTZ. 1
THE PLYMOUTH ROOK.
PB5NB1'L'VAKU
R. Co. v.
THE DENTZ
and
THlll PLYXOUTH
Rocm. . '
(UwlJtl,ie UOfJ,'re, $. D. New York. Dllcember
8, 1886,)
1.
CoLLISION-8TEA.MERS-SIGNALS-HELL GA.TE.
In view of the rule of the board of auperviaing inapectors and the pal'tlcular circumatancea of thia caae the exchange of sig'llals betweensteaIllers ing through Hell Gate, one of which is astern of' the other, amounted to an agreement that the veaselastem might precede the vessel ahead by passing upon the port side of the overtaken vessel. Such an agreement imphea that the overtaking vessel will in passing fulfill her statutory duty of klleping out of the way of the overtaken vessel, and that the lll.tterwill keep hercourseao , far· practicable consistently with the knowledge that the overtakinq vessel ia to pass her to port. The o'vertaken vessel has the right to keep 10 midchannel so long 8.S there is sufficient room on the port side for the overt8.k:ing vessel to pass her. .
I.
8.uo-RULES OJ' SUPERVISING .INSPECTORS.
The rules of tlle board of supervising inspectOR, when within tlle scope of their authority, have the force of statutory rules; but their violation Win not charge the vessel violating with damages if the proximate cause of the colthe other vessel, the violation of the ru1I lision was a faulty wu a remote and not a cauae. " , of the PhillUiCllPJP , _
IRtported b7 Theodore )4; EW,ng,
FED:E1tA1. .BEl?():RTER. 8.·
If ,there be enough in the circumstances of the justify the libelants I.D joining both vessels as respondents in the district court, and if, upon appeal by one of the respondents to me eircuit court. the appellant is adjudged to be .without fault, it isin accordance with equitable principles to so frame the decree that the costs in the'circuit court shall be adjudged against the guilty vessel, and in favor of the appellant. .
Response to a signal by whistle does not imply any relinquishment of the right of way, excepting so much8s maybe necessary to enable the overtaking vessel to execute her tnaneuver, '.
BY
In Admiralty. On appeal from decision in 26 Fed. Rep. 40. Edwin G. Davis, for appellant. Oharles.A. Deshen, for claimant of steam·boat. Wilcox, Adams fodibelant an.d appellee. Biddle' ft Ward, for Pennsylvania R. Co. WATLAO:E, J. This is an appeal by the owners of the tug Dentz from a decree of the district court pronouncing for the libelant, the owner of a barge 'in tow of the tug, against the tug and the steam· boat Plym'outh Rdckin a cause of collision. The collision took place in the afternoon of September 6, 1884, in the channel of Hell Gate above Flood rock and between the Gridiron and HaHet's point. The libelant's barge was lashed to the port side of the tug, two other tows being lashed on the starboard side, and while they were proceeding eastwardly the steam-boat Plymouth Rock, which was also proceeding in the same direction, struck the port side of the stern of the barge. As neither the libelant nor the owners of the Plymouth Rock have appealed, the onlyqueBtionnow is whetherthe Dentz was guilty of fault contributing to the collision. The Dentz with her tows had taken the ibetween Blackwell's Island and Long Island, an!! when she had reached a point opposite and some 150 to 200 feet away from the Asto'ria ferry she received a signal of two whistles: from the Plymouth Rock. The Ply1t\outh Rock had passed up thachannel to the wes,tward of Black· well's,Island, and was then distance astern of the tug 'l.londtow. The Dentz immediately answered this signal with two Wllistles. The Pilgrim, another steam-boat, just astern of the Plymouth Rock and on her starboard quarter, was also proceeding east, and shortly after the exchange of signala between the Dentz and the Plymouth Rock she gave a signal to the Dentz of one whistle. The Dentz replied by one whistle to the signal of the Pilgrim. The pilots ()f the vessels understood these signals to express a proposition on Part of the Plymouth Rock to pass the tug and tow on the port side, and of the Pilgrim to pass on the ,starboard side, and the signal on the part of the Dentzto be an ass!'ltltto these propositions. . The proofs show satisfactorily that from the time the signals were exchanged between the Dentz;·and the Plymouth 'Rock that the Dentz kept tha
THE DENTZ.
527
usual ,course of a vessel going from the point abe was when signaled through the channel of Hell Gate t9 the point of collision; that is, that she followed·the current of t4e flood-tide and kept near the middle of the channel, which was about 700 feet wide, and in doing so slowed ber engines and kept herself under proper control. The proofs also show that the collision is attributable to the haste and recklessnessofthoae in charge of the Plymouth Rock. The only witnesses for the Plymouth Rock are her pilot and her captain, both of whom assume in. their testimony that the collision would not have place if the had kept her course along mid·ahannel with the true tide. They insist that the Dentzdid not do this, and must have starboarded her helm so as to throw herself and her tows across the latter was passing by Flood the course of the PlYlUouthRock rock and along by the Gridiron as near as she could go. This theory is very improbable, and the testimony of the master of the· barge, who was"an ,intelligent observer of all that took place after the signals were exchanged, and whose testimony is that of a candid and disinterested witness, is alone sufficient to overthrow it. The pilot of the PlymouthRo(lk assumed that his vessel had the right, of way, and that the Dentz was bound to give, way and keep to the and in consequence he kept on at full speed,going well out ·towards the, IJ;liddle of the channel, expecting the would give way, until it was too late, with the force of the flood.tide, to· stop in season to avoid a collision. If the Dentz, by assenting to the sigmtl of the PlYlUouthBock, consented to give the right.of way to the latter, and ohligJI.ted herself to keep to the starboard of mid· chann:el, the decree below was right. The liability of the Dentz to thelibelallt was placed upon this ground by, the court pelow. "The .,district judge was of the opinion that. the Dentz was in because by her assent to the proposal of .the Plymouth Rook she to a violation of rule 7 of the board of supervisingin. :wb.ich in: substancElforbids .steamers attempting to pass each other in going through Hell Gate in either direQtion; but he also held thatby.rea,son o,l such assent she assumed the opligationofkeeping upon tile starboard side of the channel all the way around the bend above Flood rock, and he found that she did not keep further to the l;ltarboardthan the middle of the channel at most. He also held the Plyniouth Rock in fault because she violated rule 8 of the board of supervising inspectors, and because she did not stop and reverse in tiD,le, to avoid the collision wb'enthe Dentz was seen by her to be apPl'oaching the westerly half of the channel.. The proposition that the Dentz committed a .maritime fault by .consenting to a violation of the rule of the board of supervising inspectors is fully approved. The language of the rule is plain, and is not. flloirly .capable of thenar".ow contended for by the counsel for theappeUant·. The rule was designed to prevent just what was attempted in the present case. It is one which the board
FEDERAL REPORTER.
of Bupervising inspectors have competent authority to ordain; and being of that character is as obligatory as any statutory rule. It would probably be held that the vessel consenting to the violation of such a rule, would be estopped from asserting the violation as a fault against the other, but that question is not here. Th(j tow did not consent, and the owner can invoke the violation of the'rule as a fault on the part of both'vessels. The libelant cannot rely upon any an" tecedent misconduct of the Dentz which did not contribute to the collision; but when it appears that the Dentz has violated a rule which it wa,s,herduty to observe she must assume the burden of showing, not· only thattbe aot did not probably contribute to the disaster, but tbat'it certainly d'id not. · It mll.yb'eassumed· that thePlymonth Rock would not have atternptedtopass the Dentz in violation of the rule of the board of srtperviailig inspectolfi without the consent of tbe Dentz,but'lf tbe consent extended> further than an tigreement to waive the rule, withrelaxinfr tl'le<>bligation of the Plymouth Rock not to attempt to pass until she cquld do so prudently, it. is not obvious how the infraction of therrlleclin:'bedeemed in any aspect a contributory cause of the collision. 'I'n' such a case the Muse of the collision would be the breach:ofduty olthe vessel under obligation to keep out of the way, and theinfractiion'of the rule' would be only remote and irrelevant misconduct.' " , therefore, ·is whether the Dentz, by consenting that the: Plyn:idtJ:th Rock might- pass on her port side, impliedly promisedtoallsistthe latter in this movement by changing her own course and kElepingto the starboard side of the channel. If she did, it cannot be found upon the proofs tbat this obligation was ftlllymet. It is evident that the pilot of the Dentz did not understand that he was underthedutyof materially changing his course, or suppose that he had a.bsolved the Plymouth Rock from her statutory duty of keeping out of the way. The single inquiry is as to the legal implications . properly to be deduced from the exchange of signals. . It is to be assumed that both pilots contracted with reference to the rights and obligations of the respective vessels under the rules on navigation. If the Dentz had not assented to the proposition of the Plymouth 'Rock, both pilots would have understood that the latter W"aS to keep out iof the way as an overtaking vossel, and that the forpilotl:! would also have undermel' was to hold her course. But stood that the'Dentz was entitled to the exclusive rigbt to the chan· nel under rule ,7 of the board of supervising inspectors, and that the PlYUlOuth R()ck:JiJo'uld not lawfully attempt to pass at all. There Waano signalkiiown to the pilots by which one cduldask the other to yield theexblusive right of way; except one which would also indi(late the intelltionbfthe PlymouthR6ck' to pass on the one side or the other olthe Dentz.. The proposItion ofthe Plymonth Rock would therefore' seem·to have been, "Will you let me pass if 1 will go' on l -
529
1C1ur port 8ie1"e?" and the signal of the Dentz was an answer in the affirmative. It is not obvio1;ls how this proposition and assent c'an be interpreted otherwise' tHan as an. agreement that the Dentz would yield her. t:ixclusive right orthe way with the understanding. that the Plymouth Rock should' undertake to pass her on the port side. This agreement would naturally imply that on the one hand the Plymouth Rock as an overtaking vessel should, in passing to the port, fulfill her statutory duty in passing to keep out of the way, and on the other hand that the Dentz should keep her course so far as she could con. that the Pl1mouth RQ<,lk intended to sistently with. the pass her on the port side. There is no reason why it should be in· terpreted. I;l.S requiring the Dentz to yield the. mid-channel so long as there wll:li sufficient room left on the port side' of the mid-channel tuqYement of the Plymouth Bock.. is quite a different contract from the one to which the Dentzwas' held in the courtbe16w,and which, 'in effect, was treated as one .which reo quired the Dentz to yield the mid-channel, keep on the starboard side of it,- give,tbePlymouthRock practically the right of way, and abo $'olve the latter from duty of keeping out of the ",ay. Upon the i'P,lterpretation now placed upon it the pilot of the Dentz waS justified in pursuing the course he did, and the pilot of the Plym. was in the wrong when he supposed that the Dentz was outh under any other obligation than that of allowing to the Plymouth Rock sufficientrooIIi on the port side of the channel to execute. her maneuvers. As emphasizing this conclusion the signals which.were exchanged between the Dentz and the Pilgrim are significant. It is not clear npon the proofs whether these signals followed those ex· changed between the Plymouth Rock and the Dentz so closely as to be almost simultaneous, but they were exchanged before the vessels had reached the more critical point in the passage through Hell Gate; and all the pilots should have understood that the situation required the Dentz so to conduct her movements as to leave room for the Pilgrim to pass upon her starboard side. This could be more ,!lafelyaccomplished by the Delltz following the current of the true tide and near mid-channel. is one where the pilot of the Dentz, from motives of court· esyand to accommodate the Plymouth Rock, and the Pilgrim also, was led to. waive his privilege to the exclusive use of the channel as against these steam-boats. Those in charge of the Plymouth Rock, presuming upon his courtesy, recklessly encroached upon the midchannel, assuming that he would look out for the safety of his tug and tow. They thereby brought- about a disaster which it would' seem they now attempt to excuse by falsifying the facts.· The contest in this court has been mai.nly between the Plymouth Rock and-the Dantz. The!l.'ewas enough in: the facts to justify the libelant iti' joining the Dehtz as' a respondent, and testing' her liability in 'tHe'district It is in accordance' with equitable prinv.29F.no.11-34
530
FEDERAL
:(liples that the costs of this coprt be decreed against the Plymouth Rock, iJ:]. ,fav;or of the Dentz. , ' .' , ,'," , ,will be a decree ag/iloinst:the Plymouth Rock in favor of the libelant fQr the whole damagesdecreed by the district court, with incosts of ,the district court, and in favor of the Dentz for the costs of this court.
MAGDEBURG (DiBfHokt Oourt, S.
"
INs. Co.
'11.
PAtJLSON.
E. D. November 30, 188B., UImIAadjudged unseaworthy.
CARRIERS-OF GOODs-SHIP-EVIDENOE REVIEWED-VJl:SSEL HELD WORTHY. '
On the evidence stated, the
2. SAME-DAMAGE '.l'0 CARGO-PAR'.l'IAL INJURy-MEASURE 01' DAMAGES.
,
If the of is the partial injury or destruction of the property shipped, In the absence of proof. of fault or fraud on the part of the car. rier, the ,(li1ference the value of the goods at the point of ,destination at the time and in the condition in which they did arrive, and 'their actual value at the time and, in the condition in which they ought to have'arrived, is the proper amount' of recovery.
3. SAME.
4.
In other words. when: there isa 1;Ireach of contract, the amount that would have been received had the contr.actbeen kept is the measure of damlloges. if the contract is broken. B., in .Alder v.KeiUhly. 15 Mees. & W. 117. Held, under the facts of this case, that the market value of the damaged rice was to be determined by the price it actually brought ,after it was beaten and prepared for market, and not by the'testimony of the experts. , ,
SAME-MARKET VALUE-How ASCERTAINED.
(SyllaoU8 oy the Oourt.)
In Admiralty. Libel in pers_. Garrard <to Meldrim, for libelants. '/Ater «Ravenel, for respondent. , SPEER, J. The libel is sued out by the Magda.burg General Insurance Company, a corporation by the laws of the kingdom of Prussia, against Paulson, the owner of the schooner Pilot. It alleges that of1 the tenth day of September, 1879, A. E. Moynello shipped on ,the Pilot a cargo of rough rice in bulk, from the Vallambrosa plantation, on the Ogeechee river, to Savannah, Georgia;, that the rice was to be delivered in good order to Moynello t on the schooner,· at the upper rice--mill, in Savannah; that it was delivered badly damaged by water; and that this damage was occasioned by the unseaworthiness of the schooner. Thecal'go had been insured against marine losses with the libelants, and they paid all the damages to Moynello, and the cQsts of a board of :survey; the amount being $563. Moynello assigned, in consideration of this payment, all his claim {or damages against the Pilot to the libelants. They allege that they are subrogated to his rights for compensation from the owner