I'EDEBAL 8EJ'ORTER,
vol. 63.
cxmetrUCtiQIl" although latent and unKnown to the owner, lie Is not etl'cUBeclli'1'h'·ahipowner must show affirmatively that his ship was seawortby at -the beginning of the voyage. The question then arises whether this obligation on the part of has been qualified by the clause in the bill of lading the which exempts the shipowner from damage caused by a latent defect,. which is this case. This was an English ship. The contract was signed in a port governed by English law, and it has been held in this circuit that such a case is to be governed by the law of the place where the contract was made. It was a British vessel, governed by the laws of England. Liverpool & G. W. Steam Co. v. J?henix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469; The Majestic, 9 C. C. 11..161, 60 Fed. 624; Bank of Edgefield v. Farmers' Co-op. Manuf'g 00.,2 U·. s. App. 282, 295,2 C. C. A. 637, 52 Fed. 98. The law of England, as declared in the case of The Laertes, 12 Prob. Div. 187, is to th:e effeet that by the laws of England such an exception as that contained in the bill of lading sued on, if it does not abrogate, at all events limits, the warranty which' the law would otherwise imply, that the ship was seaworthy at the beginning of the voyage, and exempts the ship if diligence is exercised by the shipowner. Applying that law to this case, it follows, from the fact that the weak condition of the iron rivet could not be discovered by the exerdse of due .diligence, that the ship cannot be held liable for the injury to the libelants' cargo, because the danger arose from a latent defect in the rivet which gave way, within the exception in the bill of lading under which the merchandise was carried. Upon this ground the libels are dismissed, and with costs. THE HERCULES. GENTHUER v. THE HERCULES.
(DIstrict Court, E. D. New York. September 28, 1894.' The conductot claimant's agent, in causing it to be made known to · witness who had given damaging testimony that he was in danger ot prosecution tor a criminal offense, wheTeby the witness was moved to offer himself as a witness tor claimant, and thereupon gave a deposition contradicting many ot his previous statements, strongly disapproved by the court, and considered to -casta doubt upon the testimony of another, witness produced fl!Om the same source. 2. OF Tow IN STORM· . Tug 1Ield-in fault for taking barges out of the protection of the belaware breakwater; and starting on a voyage to Boston, in the face of strong indications;o't an approaching storm, contrary to the judgment of other tugboat captains in the breakwater at the time, and tor refusing to turn back until It became impossible to proceed, and until one ot the barges had sprung a, IElak, from which she sank. L INFLUENCES-THREATS 011' C'l.IMINAL PROSECUTION.
,This was a Ubel by Philip O. Genthuer against the steam tug Hercules to recover for the loss of the Saugerties while in tow of the tug. Benedict & Benedict, for libelant. Robinson, Biddle & Ward; for claimants.
THE HERCULES.
269
District Judge. On the 2d day of March, 1893, the steam tug Hercules took in tow in the Delaware river the barge Saugerties and the barge Moonbeam, under a contract to tow them, one to Boston, Mass., and the other to Providence, R. I. In the afternoon of the 2d of March the tug left the Delaware breakwater and put to sea with these two barges, in the face of evident signs of approaching storm. The heavy weather indicated was encoun· tered outside. On the 4th of March, while in a heavy sea, the Saugerties sprung a leak, and shortly afterwards sank in about 17 fath· oms of water, and became a total loss. Thereafter the tug .turned back with the Moonbeam, which was disabled in the storm by the breaking of her tiller, and with her arrived in safety at the break· water. The owners of the Saugerties now sue the tug to recover for the loss of their barge, charging the tug with negligence in putting out from the refuge of the breakwater into the storm then threat ned, and also in failing to turn back after the storm was encountered. The claimants contend that the sinking of the Saugerties arose from her being unseaworthy, and that there was no negligence on the part of the tug. Upon these issues a mass of evidence has been presented, in which there is to be found testimony supporting either contention. I have xamined all this testimony, but I do not feel it incumbent on me to comment on its particular features, further than to say that the conduct of Harry Hull, assistant superintendent of the line to which the Hercules belongs, in connection with the testimony of the witness William Kendrick, cannot be passed over without notice. The witness Kendrick was the master of the Hercules. He was examined in behalf of the libelant by deposition, and gave testimony favorable to the libelant's contention. At the taking of this first deposition the information was conveyed to the witness that it was known to the claimants that there was foundation for a criminal charge against him, arising out of his naturalization papers obtained by him in Boston. Thereafter the witness was made to understand that he was in danger of prosecution for that offense, and was brought in connection with the superindendent, Hull, by means of. his brother-in-law. Thereafter, acting under the idea that he would thereby avoid a criminal prosecution in connection with his naturalization, he offered to be examined in behalf of the claimant. At this last examination he contradicted many of the. statements he had made in his first deposition. After that both he and his brother-in-law were given employment by the claimants. This method of dealing with a witness who gives damaging testimony is strongly disapproved of, and tends to raise a doubt in regard to the testimony of the witness Johnston, produced from the same source, to the statements of Kendrick. The testimony in the case, taken together, seems to me to require the conclusion that the master of the Hercules, contrary to the judgment of other tugboat captains in the breakwater at the time, put out with his heavy tow from the protection of the breakwater, in the face of strong indications of the approach of a storm; that the "Storm was encountered outside the capes, and was dangerous, not-
270
FEDERAL REPORTER,
withstandirlgwliich the tug prooeeded on her way, until finally it became impossible to make any noticeable progress with the tow. Inllwad('of turtIing back, as she could have· done, and as she afterwards did with the Moonbeam, the tug sUbjected the Saugerties to of 'a severe storm for many hours. The reflult was that the Saugerties sprung a leak, and bel' pump became disabled by the storm,' so ,that she filled with and sank. Upon these concIusionsof'fact I find that the tug was gUilty of continuing to face a dangerous storm after she experienced its force, when common prudence required the master to tur:hbaok, and, seek the shelter of the breakwater. The failure to exereisl:!' this measure of prudence was" in my opinion, negligence, and rendered the tug liable for the loss of the libelant's barge. There mUflt,be a decree ··for the libelant,. with a to ascertain the ampunt of the loss. I
THE ALFRED .J, M:URRAY. THE ALE'RED J. MURRAY v. AMERICA:"l' TOWING & LIGHTERING , CO;
(Cfl'cuit Opurt of Appeals, F'onr'fli No. 85. MARITIME
October 2, 1894.) VESSEL FOR DEBT.
,
One Whotil.kes a. barge iD. payment'of' a' debt Is not' an innocent purchaser, jilo. as' tQ release h'4P! from cIaittl$ against the vessel contracted by the vendor. 60 ,Fed,. 926, 8#irmed.
of the United States for the Dis· .. by the American. Towing &.I,Jghtering Com· tp.e barge Alfted J. Murray, in whi.ch Edward Tunisoli EtUd Rich'ardRoser;,niaterial men,intervened,and claimed liens. There was a 'judgtnent for libelants and interveners, and Engle & .claimants of the .' AJlirmed. .RichardM. ¥oSherry, for , .' · H. Smith, for the towing company. ';ChQmas C. Butler and,D.E. Monroe, for interveners. Before G9FFand SIMONTON, Circuit Judges, and HUGHES, District Judge. trict Qf SIMONTON, Circuit Judge. Tbe barge Alfred' J. Murray was engaged in trade between New York and Chesapeake bay. She had no ,means in herself of'IQcomotion, and the American Towing & Lightering Company was under contract .with one of her owners to' do all necessary between Ohesapeake City, in the state {If Maryland, toa POl't or portl!l on Chesapeake bay, usually Pia,nkatank, inVirginill·. While this towage service was being performed, in 1892, to APl'il, 1893,' the barge was owned by J. A. and 0. Gritfin, and was; covered by a,mortgage to Alfred J. Murray sum of ,6,000. The two years before 1893,