THE MASCOT.
917
ing. He had a cbmpoundcomminuted fracture of the lower bones of his leg. He must be compensated for his pain, and for his impaired capacity for labor. He is by no means helpless, or unable to make a living. Counsel for libelant press upon the consideration of the court tables, prepared by iniurance agents, showing the expectancy of life at various ages,35 years if libelant is 30, and 32 years if he is 35,-andask that he be allowed the sum of his daily wages for this period. This would be securing for libelant compensation for a certain period when we are dealing with the most uncertain thing in the world,-human life. I have no confidence in, and less respect for, these tables made up by insurance agents, in which, of course, large allowance must be made for heavy commissions, expenses, and profit. Nor can any safe guide be had from decided cases. Circumstances in each case sway the minds of judges, as well as jurors. We can compensate him for his pain. Following Mr. Justice BRADLEY in Miller v. The W. G. Hewes, 1 Wood's, 367, I allow him $500., His disability is for life, but for life only. Assuming-and it is beyond the mark-that he can get for every working day $1.25, his income would be $375 per annum. This would be the income at 7per <lent. on a capital of $5,357. But, as he would be entitled to such income only for his life, a decree giving him this sum in fee would clearly be improper. In South Carolina (Wright v. Jenning8, 1 Bailey, 277) the value of the life-estate as compared with the fee is as 1 to 2; that is, i. The one-half of $5,357 is $2,678. This would be the award were the libelant rendered absolutely helpless and incapable of work. But his capacity to labor is diminished, not destroyed. Assume that it is diminished two-thirds. Allot him two-thirds of.$2,678; that is, $1,786. Let a decree be entered for libelant in $2,286, and costs.
THE MASCOT.' ROSE
BRICK Co.
11. THE MASCOT.
{m8Prict Court, B. D. New YOrk. December 8O,1891.} -ToWA()Il-OBSnucTloN-GENERAL COURSE. KNOWLED()E OF-DEPARTURE FROM: CUSTOM:ARY
A tug, (In taking a tow up a canal, ran the tow upon a rock which the tng claimed wa!i an unknown obstruction, !;Jut it, was !!hown that there,w,,!! general kI\owledge of' s()me' obstructions there, and a customary and well-known course to go on oue side of the canal, which the tug on this occasion departed from without cause. Belli, that the tug was liable for the injury to the tow for departing from the CUlttomary' jJOure6.
In Admiralty. Suit to recover damages for negligent towage. .cree for libelant. Wilcoi, Ada1ll8 Green, for libelant. Carpenter & Mosher, forcIaimant. by Edward G. Benedict, Esq., of the New York bar.
De-
FEDERAL REPORTER,
vol. 48.
BIlGWN,J', About noon on the 11th of April, 18,91. the libelant's: bnrge Roseton,loadedwifh brick, in tow of the steam-tug Mascot, on a hawseri while going up the artificial canal which runs tathe southward and eastward from Newt<>wn creek, was run upon a sunken rock a little to the eastward of Stag street, and from 55 to 65 feet oiLfrom the southerly side of the canal. Subsequent examination showed that this rock was a sharp peak,rising up about 15 inches above the level of a fiat rock, about 9 feet long by 8 feet wide, which was situated a few inches only below the muddy bottom of the canal. Another rock near bYibut probably someWhat further off from the southerly shore, had been well known to navigators, and was removed in December previous. The claimant c0l1tends that the rock removed was the only rock known. and that the tUK is not liable, because the rock on which the Mascot struck, was previously wholly unknown. If I were satisfied that the tug'haJpursued the usual course in going up the canal. I should hold her not liable. The clear weight of evidence, however, is tbat all boatmen knew, that it was necessary to keep upon the southerly side and that when"as in this case, a schooner was of the moored at the bulk-head off Stag street, the usual course was to go as near to the schooner as possible. Had the Mascot pursued this usual course, the evidence leaves no doubt that the Roseton would not have been harmed. Schooners were very frequently moored there, and the Roseton, and, other barges 'drawing quite as much water, had been frequently takeiIpast such schooners without injury. On this trip, moreover, the tide was at so, that everything was most favorable. These facts,with theevidenoe as regards the position of the rock. satisfy me that .t-he Roseton strucki the' rock because the tug did not pursue the customary course, and go near the schooner that was lying there, but went at least 10 feet off from the schooner, instead of only ,3 feet, as the tug's witnesses contend. The customary practice was binding upon the Mascot. No reason for departing frum it is suggested. In case of accident from obstructions while departing from the customary course, it certainly is not incumbent upon the libelant to show that the tug or other boatinen had positive knowledge of the precise or of the location of particular rock reasons for the or obstructiun, .whatever it might be. It is enough in this case that the necessity of going very near to any'schooner that might be moored at the bulk-head was known; and the invariable custom of passing so near, two or thJ'ee feet, or grazing the schooner, as the witnesses testify, is suffioient evidence of the necessity, and of some obstructions thatrequiredsoch navigation. The defendants, in effect, confirm this by their testimony that they did go within three feet of the schooner,t,!lougll Ifindthemmistakel1 00 this point.. The general knowledge that a certain course was the proper course to take. in consequence of some obstructions, and thlj.t ,it WllS the custom uuiformly to adhere to that course, is sufficient tOP!lt upqn, the tug the risk of departing from it without reason. The Mary N. Hoyan, 35 Fed. Rep. 554. Decree for the libelant,with costs.
THE PROTOS.
919
THE
PROTOS. I PROTOS.
CANNON ". THE 1. INllmY'1'O EMPLOYE-NEGLIGENCE.
COlircuU Court, .E. D. Penn8ylmania. December 11, 1891.}
Toleave a small trimming hole in the lower deok of a vessel, a short distance from U\\l .main hatch, open and unguarded, when the vessel was unloading, and the betweElD-decks, where it was to be exPEiote4, the stevedores discharging the cargo would necessarily go, was dark and unlighted, is negligence, fur whioh the . .TM Helio8, 12 782, followed. .A stevedore engaged hi unloading a vessel went between-deoks to get his overalls'and' ohange his clothes preparatory to goin, to work iil the lower hold. The between-deck$ was dark, alldhe feU· through a feeding It was the ship'. duty to keep the "feeding hole" o1ose4' HeM, he in belieVing the hole closed, and was not guilty of contrlbutory negligence.' ' ' A vessel is responsible for an injury happening to a shoveler employed bv the stevedore that she employed to unload the vessel, when such injury occurs through her own unsafe condition. . " ,.. ." , . " .
13·.S.ulB-CoNTIUlItiToBY NEGLIG,ENCBo
,
.'.
S. SAKE-LIABILITY OJ! VESSEL..
Of the district conrt awarding 81,250 as damages fdr in-
Appeal
respondelltqelow,tlie steam-ship Protos,
to 'cargo.' .
of libelant, Frank Cannon, incul'l'ed while unloading the , John Q. tane, for appellant. JoM F. and Joh'fl,T. Murphy, for appellee.
Lewis
A(JHESON, J. Afier careful consideration of all the proofs. I am entirelyslltisfied with the conclusions of theaistrict court. both as respects the fa<'l;:; and the law of the case." I find the facts to be as follows: 1.' The libelant was a laborer finder a hdad steve'dore, who 'was em,ployMbytheniaster of. the stelim-ship Protos to unload her cargo of at tne port of Philadelphia. The libelant was engaged on the vessel, as a shoveler. at this work,on Saturday, F.ebruary 9, 1889; and, the of'the cargo not being completed on that day, he 'was told toretutn the next Monday m<>rning. .' 2. When he ,quit work on Saturday, he left his overalls in the beneturning 'on Monday morning, the libelant" about 7 o'clock, went down the ladder of the main hatchway, used for storing and of cn,rgo,and got off at the between-decks, to get his overalls, ll'!'l4' make the usual change of clothing preparatory to going 19\Ver hold; where the clay yet to be discharged was; and, iIi getting on his overalls and changing his clothes, he small feeding or trimming hole down into the lower hold, arm, and otherwise injuring himself. 3.'. holes, are for trimming the cargo as it
fen "
.
".\..11.1
·...: , ' . ,
,(
1 Reported
by Mark Wilks'Ctlllet;
the
bar.