DAN.
691
to keep the vessel off the rocks on either side, notwithstanding the presence of a passing tow. Theqourse of the tide and the eddy were also well known, and it was the business of the schooner, at her peril, to navigate with reference to. them. There is no probability that there was any material change in the course of the tug to the northward, to the prejudice of the schooner. The tug's proper course, for quite a distance beyond the point of stranding, was nearly in the center of the channel, in order to pass to the southward of the buoy at Robbins Reef light. The mistake of the schooner was-First, in unnecessarily taking the greater risk of a passage by the Kills; 8econd, in crossing the tug's course to the northward, if the tow was on the northerly side of the channel; or, third, if the tow was not on the northerly side of the channel, in running 80 far into the eddy tide and not luffing, and in not dropping anchor sooner, fl.nd lowering her sails before getting near the rocks. There is no fault on the part of the cargo. I cannot find the stranding unavoidable, and the schooner must therefore answer for the damage.
THE DAN. STEAM-SHIP Co. CARL t1. HAGEMEYER. HAGEMEYER
et al.
t1. STEAM-SHIP
Co.
CARL.
(Df.8trlct OO'u/rt, S. D. New York. December 00, 1889.)
L
SBIPPING-DAMAGB TO CARGo-ClURTERBD VESSEL-COMMON CaRIEIL
A chartered to transport a specUlc cargo only is Ii.Ot a common carrier, and hence is Dot an insurer of the safe delivery of the cargo, and can be held for damage to cargo only on proof of negligoen!J6.
9.
SAMB-NEGLIGENT STOWAGE-FoREIGN VESSEL.
A vessel;.1oaded in a foreign port cannot be charged with negligence in stowing cargo if she bas employed all the known alld usual precautions to insure safe transpOrtalton whioh the nature of the cargo requires, having reference to the usages of the foreign country, and the praotice and state of knowledge 88 to loading there prevailing. . The steam-ship D. delivered a cargo of grain which she had been specially ohartered to transpot't, and. part of whioh was damaged throu/{h contaot with an iron bulk-head between the cargo and the engine-room. The eVldence showed that the construction of the ship was not unusuaf at Copenhagen; that the grain was stowed in accordance with the custom of Copenhagen, where this cargo was loaded; and that a practice of sheathing the iron bulk-head with wood, the lack of which in this case was the negligence complained of, is not in use in Denmark, and only to a limited extent in New York. Held, that the ve88el was liable only for negligence, under the oircumstances of her employment, and that no negligence was proved, the shippers apparently acquiescing in the stowage; but, on the meager evidence as to .usage at the libelant for damage to cargo was allowed to dis continue without prejudice, and the vessel \V88 held entitled to her freight in full.
8.
SAMB·
In Admiralty. Oross-suits for freight and damage to cargo. Wing,Shotidyc!c P-Ufmam, (0. O. Burlingham, of counsel,) for the steamlIhip company. H. D·. H()tchki88, for cargo. by EdwIll'dG. Benediot,.Esq., of tbeNewYllrkbar.
FEDERAL REPORTER,
vol. 40.
BROWN, J. The above are cross-libels,-the first to recover freight on a cargo of barley shipped on the steam-ship Dan, at Copenhagen, in February, 1888, to be delivered in New York; the second, for damages to the barl",y, through alleged negligence in stowing it against an iron bulkhead abaft the engine-room, whereby it became injured through heat. As the Dan was chartered to transport this specific cargo only, she was not a common carrier. Sttmner v. Ca8well, 20 Fed. Rep. 249. She was therefore not an insurer of the safe delivery of the cargo, and can be held only upon proof of negligence. The negligence alleged is that she was not properly fitted for the voyage, and that she did not cause some additional wooden sheathing, or other suitable protectiqn against heat, to be interposed between the grain and the iron bulk-head that separated it from the engine-room. On arrival, that portion of the grain which was against the iron bulk-head was found heated and caked, remaining, as described by BOrne of the witnesses, in a perpendicular wall when the other grain was removed. Over the line of the keel there was a chamber and tunnel inclosing the shaft running aft from the engine-room, and communicating with the latter by an open door. Along and around this chamber and tunnel the barley showed the same heated and caked condition much further aft, extending in all some 14 feet. These circumstances satisfy me, notwithstanding the testimony of the witnesses for the shi p of their belief to the contrary, that the caked condition of the barley arose in part from the heat received through the engine-room and bulkhead. Whether there was not also some dampness of the barley, that made it especially susceptible to a moderate degree e>f heat, it is impossible to determine, though that seems probable. There is testimony, however, that the general condition of the barley was good. The Dan had been for some time previous engaged in transporting grain, mainly in the Baltic and Black sea trade. She was thoroughly equipped for this purpose. Her voyages were of from five to ten days. She was accustomed to stow her load as in the present case, and had never had her cargo damaged before. She had not previously brought barley or other grain across the Atlantic. Her present voyage occupied 21 days, 2 of which were consumed in putting into Plymouth for coal, as she was allowed to do by her charter. She had no partition separating her boilers from: the .engine-room,. but they were 14' feet forward of the iron bulk-head in question, and the room was well ventilated by airshafts and an upward draught over the boilers. This construction was not improper or unusual in Danish ships. Vessels of the Thingvalla Line were constructed in the same way, and been accustomed to carry grain from the United States to Havre, sto:wed as the barley upon the Dan was stowed, without injury. The question js wholly a qUt::stion of stowage. There is no doubt of the general good construction and fitnesl:\ of the Dani. and. in stowing she cannot be charged with negligence, if she employs all the known and usual precautions to insure safe transportation, having reference to .the nature the cargo. 'l'he Titania, 19 Fed. Rep. 107,108; Clark v. BarnweU, 12 How. 283; Baxter v. Leland, 1 Blatchf. 526; Lamb v. Parkman,
THE DAN.
6&3
1 Spr. 343. This rule, as respects a vessel chartered in a coun· try and loaded there, must be applied with reference to the of that .country, and the practice as to loading there prevailing. In trJis port, in consequence of some cases of damage to grain stowed against an iron bulk-head on European voyages, a practice has arisen within Lhe last three or four years on the vessels of the Wilson Line, and on so me others, to separate the grain from the iron bulk-head by some temporary .sheathing; but the evidence on the part of the Dan shows that that practice even here is quite 'limited, and not general, or amounting to anything like a usage, and that, in the absence of such additional protection on vessels constructed similarly to the Dan. no damage upon European voyages has been commonly experienced. The inference from these facts is, it seems to me, very strong that, in the few cases in which such damage has arisen, it has come from some inferior condition of the grain itself; such perhaps. as slight dampness, or lack of thorough curing, not noticeable to ordinary inspection, but sufficient, when combined with slight local heat, to result in damage; and I think such was the fact in this case. The custom in Copenhagen, as respects the loading and stowing. of chartered vessels, is different from our own. The proof shows that there are official persons who supervise and determine the proper stowage; that these persons are usually called on by t.he mer.chants for that purpose, and may be called by the ship's officers; that in this case two such persons approved the stowage ofthe Dan; and that the stowage was in accordance with the usual custom of that country. There is no evidence to the contrary, nor any indication that any such .additionai sheathing or protection had ever been in use in Denmark, or was known to be used, or required, as a reasonable precaution for the safety of grain cargoes of any kind. In New York, where the shipment .of grain cargoes is much more frequent, such a practice as above stated is quite limited, and even to this extent has sprung up only within the Jast three or four years. Under such circumstances, to hold this vessel liable for negligence in stowage will, it seems to me, be holding her to a degree of responsibility greater than in any reported case other than ·cases of common carriers. and beyond that with which she is fairly .chargeable. Baxter v. Leland, supra. The practice at Copenhagen, also, whereby the merchant shippers seem to exercise as much care and control as to stowage as the ship herself, would seem to debar them equitably from setting up such a claim against the ship; since they had all equal power over the stowage, and virtually acquiesced in the mode .adopted in this case. The evidence on this subject is possibly imperfect, and I may be mistaken in my interpretation of The question of ,stowage could doubtless be tried much more satisfactorily in Copenhagen than here; and, in view of the meager evidence upon this subject \n the present case, I think it right to allow the cargo-owners to discontinue their present suit, if they choose to do so, without prejudice to any sc1ion in Copen4agen for the same cause which they may be advised to bripg. In the libel for freight the libelants are entitled to the balance .of the amount unpaid, with interestalld costs.
11m QUEEN. In re 1. EVERETT
et ale
(Dt8trtct Court, S. D. New York. December 11,1889.) OOLLtStOlf-INroRtES. TO PASSENGBRS AND SBAMBN-LmEL-PARTIIilS.
&
8. "
Seamen and officers are fellow-serVants, as respects the detsils of navigation on board ship. ll;llQh takes the risk of the other's negligence, and has no claim for against bis own ship or her owners for collisions occasioned tbereby. On collisionoy the faults of both vessels, when both are before the court, the damages l;Ilust be apportioned between them; and the seamen on board one vessel can reo cover onlyhalf their damages against the other, because they are disabled by their relation to their own ship and her owners from any recoverY against the latter, direotly or indirectly. SAxB-MBASUBB OF DAMAGB TO PUSBNGBR.
Passengers. recover fUll damages, the one.half of which 18 4educted from the amount payable to the other vessel for her own .
'
BAME-:MEASUBB OF DAMAGE TO SBAMEN.
On claims of seamen for personal injuries. for being thrown into the water by collision, only the actual damage from physical lDjury, or consequent lou of em· ployment, should be aIlow.ed.
Goo. A. Blatk, for petitioners. R. D. Benedi,ct, for respondent. BROWN, J. The petitioners, of whom five were seamen, and two others government inspectors on the dredge Queen, applied to the court after an interlocutory decree holding the City of Ale:tandria and the Queen both in fault fO,r the collision between them, (31 Fed. Rep. 427,) to be made co-libelants, in order to recover for their loss of personal effects and for personal injuries. No sufficient ,reason to the contrary appearing, the application was grunted. 1. PersOnal Effects. Two of the petitioners have given no evidence as to their claims. The others I find lost personal effects of the values following, there being little strict proof. beyond estimates, of actual present value: Edgar E v e r e t t , . . · e 70 00 60 00 Wehstf'r Brown, 100 00 Clifford Kelsey, NorOlanChisam, 1500 A. P. -. 110 00 James D c , r r e l l , - ' 45 00 James GodWin, 80 00 , Daniel N. Cozzens, 150 00 2. Personal Injuries. Without proofofsome substantial harm, some incapacity for their prdinary work,or some expense incurred, no damages for alleged personal injuries should be awarded to seamen. Without this, the allowance of damages for being thrown into tbe water, and for alleged fright, would in this class of cases, I think, be specially impolitic
In Admiralty.