the ,valueot their testimony.Wevertheless we cannot find that the testimony of tht;t new witnElSses was iQtentionally withheld, or that the faill,ue to them was attribu.taple to gross laohes, and, adhering to the prevailing practice at the time the cause was tried and the appeal was taken, the only deposition which we feel justified in suppressing is .that of the witness Dallas.
THE MATTANO.
MARINE RAILROAD, SHIPBUILDINU
&
COAL
Co.
t1.
THE MATTANO
et al,
(circuit oowrt oj ,Appea£8; Jiourth Oircmit. October 11, 1892.)
In an case, in which .anlappeal W a circu.tcourt was taken prior to July I, 1891, its decrees are reviewable, under Act March 8, 1891, § 6t in the circuit court of whose jurisdiction w!J.s not. suspended or limited 1U rany way by "tbejoirlt'1;Csolutlon of the same date,'wllich merely preserved the.right of the cir,. cult cour,tB to he,ar appeals in cases,theu, pending, and in proceedings to review Buch cases taken out I, 1891. S. CONTRAOT-AOTION-BURDEN OF PBOOJ'. , ' . . On a libel bt rem for mOney due on a dontract for repairs, where it is admitted ,thatthelaboll"and materials set forth lnthe bill of particUlars were furnished. and thllot the job was well done, the ageJ;lt oUhe owner I:!aving signed certificates as to the correctness of each day's state\:p.ent, and its conformity with the contract, the ·:burden ,of proof is on the owner to show any errors in the bill of particll' .irs. , S. SAKB-REPAIBING VESSEL-DELAT-EvIDENCE.
...... O()t1Jlil',·OI'
ApPIIUS-J'URISDIOTION IN PENDING CUBS.
On a UbeHn rem for repairs to a vessl'll' a reduction of charge for expenses incurred by 'the owner because of unreasopable delay should not be allowed, when he has not tietrayed auy marked impatience during the work, and his agent has each day certified, to the daily statement of the work done, without making any coIilplaint therein, although the owner did grumble a little, to burry the libelants up. , A claim fOl'reduction in the cbargesfor profits which the owner might have made but·for unnecessary delay should .not be allowed, when it rests upon mere conjecture by the master and owner, it being in their power to give certain testimony by reference to the books' of the vessel. REfRESENTATIONS-KNOWLBDGE BT BO'l'IIPARTIES. '
·· SAME-DAMAGES FOR DELAY-PROFITII I'REVEST)lD-EVIDENClil.
,An assertion by the agents of tbe.li\lelants that the, shipyard was as well prepared as any: they knew of to do the work, as far as machinery was concerned. even if an exaggeration, in view of the fact ,that they had no band saws, was not such a 'warranty as ",ould authorize a redqction of charges fOr waste of lumber in cutting by hand, When the owner was in the shigyard, and might have seen whether they baud ,., ' 5.SAlII1!h-O,!,ljiROHAR(iES,
1,' ·SAME-EVI:PENCB.
':'The owner offered ,to furnish the lumber, but the lIbelallt replied that it was not i: n.ecessarf,and that the prices therefor should be made satisfactory. The owner's agent forlumber in, the first daily abstracts, but, On told that the price would be made satisfactory in the settlemept, signed them. HeId,. that the owner was misled .btthe statements of the libelant, and was entitled -', ' , .to ,a, pf charges head. ' .".,
.,
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..' ':Aolaim of overcharge for lumber used in scaffolding, not supported by any evi· .denCIl as to how much was so used, should be disallowed. ' ).. .
THJl:' MAT'l'ANO. B.SAlt& .' . .,'
877
The cOntract dilt not specifl tbe kind of lumber to be used, and the libelant used pine, with the knowledge 0 the owner and his agent, although the vessel was planlUld with oak. Held, that a claim of overcharge for ironing rendered necessary by the use of the pine should be disallowed. 9. SUIB. A claim for reduction of charge for loss of time in sending skilled workmen to cull lumber should be disallowed, when that plan secured the best pieces of lumber, and prevented probable loss of time, which would have from the selection of the lumber by an unskilled person. 10. SAME.
A claim for reduction of charge for lumber spoiled and time lost in taking out and doing over, again work improperly done should not be allowed, unless the act was Willful, or so careless as to amount to willfulness.
11. SAME. The libelant paid a carpenter, who was furnished by the owner, and employed at his request, $2.75 per day, and the owner $3.25 per day therefor. Held" that a claim of overcharge should be allowed.
Appea:1fl'Oll;l the Circuit Court oUhe Vnited States for the Eastern Virginia. In Libel in rem against the steamboat Mattano and George L.Sheriff, her oWIier, by the Marine Railroad, Shipbuilding &; Coal Company,to recover for repairs made on the vessel. Decree for libelant as to a small part of ita claim, which decree was affirmed in the court., Libelant appeals. A motion to dismiss the case for want of jurisdiction was heretofore overruled. Reversed. James R. Caton, for appellant. C. C. Oole,for appellees. Before GOFF, Oircuit Judge, and SIMONTON, District Judge. SIMONTON, District Judge. This is a libel in rem. The cause of action is a balance due for work and labor, time and money, expended in and about the care of and repairs to the steamboat Mattano, of which George L. Sheriff is owner. The account is filed with the libel, showing the sum of $5,086.70 charged, with a credit of $3,250 paid, leaving the balance, $1,836.70, still due. The answer sets up as a defense over<lharges in labor, time, and materials, as well as loss of service and expense incurred from unnecessary delay. It admits $198.19 to be due. At the hearing the district court sustained the defense, and gave libelant a decree for $198.19. This decree was affirmed by the circuit court. 'fhe case oomes here on exception by libelant to this action on the part of the circuit court. On the first day of the term a motion was made by appellees to dismiss the case, as not within the jurisdiction of this court. The cause was heard in the district court, .and decree rendered 6th August, 1890; appeal made 3d October, 1890; apPf!al lleard by the cireuit court, 29th January, 1892. The joint resolution of March 3, l8!H, contemporaneous with the act establishing this court, Fovides that nothing. in said act contained shall be held or construed in any' wise to impair the jurisdiction of the supreme court or anycircuii court in anycasepending'beforeit, or in respect 19' any case
878· &AY. tliiit1tliJSljb!ht and lietermine finally the spaq tbel'igh out, taken to
'deatee onhe districf'court in .an
conrtto' hear
froOO,thecircllit March 1891, gave to thIS court power.to In certain,cases,amongwhichare cases in admiralty. Section 6; 1 C" . any way .JOInt resolutIon of the Same date. orJlailr:Qaa Co. ,,';){mato, (2d Clrmpt,)
?' c.
1
49 F.ed Re.p. 88 1, .fO.llowin¥' J'11 .. . .. . All that thIS Jomt resolutIon dId was to preserve the.1inghtofthe hearappeals from the district court under section 631 of the Revised Statutes ip . 1 to cases, taken out berore July 1, 1891. 'Whel} the CIrCUIt has heard and .. <3: "'. F.,.l . ts4MJ. ,0,0. PI. ':l'he i;ilotlOn was over. the 1891,; .l/o.re., h",re.
1.1.,3. ,.1...0 C A .. 46 ...·
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,:.WIt.. .. . .AA"·.... T.he.ra. .. :.. Jl:'m ass .O.f ... ....te.stim. 011,Y.. in; with those on the same tljose .on OpposIte sIde. The hbelant IS In controlQfa AlexandrIa, claimant which it has been running for some six liv.es bemg In neea of repaIr, was eVl<lently 111 sucn acondltlOn as inad'e a voyage to Baltimore dangerous, if not impracticable; so he went to the libelan:t; lit1d"Madearrangemen1.8·:for repairing andrefittfng her.'· A blose' examinatiOn of, the' tes'1tin.'iOnyi fails to disclose: any other contract made betw,eellitheseparties than tnat the steamboat should be put in withdispaooh."Nothingwas said as to time, or as to tlie'prioee"td blepaid. ':Nothingdefinite was saidas t to the kind of 1uooAs thest6amel1'wasplanked with oak, the claimant assumed thaI oak was tobe used; and supposed that'libelant so understood it;: !He did offer to furnish his own lumber, but was induced not to 'do so, upon the assuranoe:that this would be made satisfactory. When the i arran'gements were made; 'neither party seemed to have any idea' of' the extent 0)1 chatacWl','0f the repairs needed; and the di1apidated::c6ndition which wll.S discovered to be in surpdsede'ver:y No written agreement was,ientered into. After a generltlsottiorcohversation the·steamboat was sent:to the yard, put on the-- rftil;wBiy,;hatiled up, and work !begun. The master. of the steamboat was ab0ut'thEi yard constantly, aYid;anagent of,.the owner, specially thereto appointed, had .superv.iiSidnior the work.; A daily was made tohittf;showing in detaiHhelabor, workdOne,and material used that day, 'arid was examined by 'him. In every instance he signed his name to' a certlfioote in this IlbstraaV'that the: is; in.' Rccordance
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879 .with agreement, and a.atisfactpr,y.. ,rhe .The owner adlllite that it is. 110 Qrst,class job, and this. ;seet;ns tp l;>,El, the one thing in which !ill the concur. reasons..for tlw -refusal of to pay the. balance claimed ijpon the bill are, fOJ,'!Uulated in his brief: For additional expenses 'by respondent by the unreasonable delay in doing. the work $600 00 For profits which the might have,made with his boat during the. ,time it was unnecessarily dela.yed upon the rail20000 ways ". . Forwaateof lumber in cutting by hand instead of by saw 75 00 For overcharge in price of lumber used in the boat 4:4196 For overcharge of lumber used in scaffolding 52 00 For overcharge for ironirig rendering necessary by using pine in8teadof oWl. according to contract . 174 65 75 00 For of time iusending workman to cull lumber · FO,r of lumber and time lost in taking it out and doinK over a second and third time work improperly done 5000 For of services of carpenter Berry · · 2000 Making an aggregate of · $1,63661
It is that work, labor, and materials set fortbin, the bill oflJax:tiqu!ars were the, to the steamboat was a good Job. The hbelllnt presents. the certificate of the special agent 'of the oW,ner as to the cor,rectness each day's ment, and its accordance with contract. The burden of. proof, thep; is on the c l a i m a n t . · . . item chll,rges unreasonable delay in doing the work, and the additional expense thereby incurred. To this point the owner and the master of the steam boat anq Guest, the special agent of the O1l).Ster, speak. The owner complains of delay in putting the b()at way and beginning work. He also complains of delay occasione4 by want of oak lumber. He says that because of these "she was there a month longer than she. should have heen, or about three weeks at any rate." In his cross-examination he this, "rough guess." The master attributes the delay to want of lumber, an insufficient supply of hands, and replacing. bad work. He estimates the time lost Jor the lumber at three or four weeks, and that lost for the hands ten or twelve days. Guest speaks of delay in hewing out the logs. The owner At thi!!l rate he charges six represents his expenses at $100 per days in this item, $600. On the other hand, the witnesses for libelant -Deltn, Cooper, SaveUe, A. H. Agnew, ,Day, Tole, Hayden-deny thlj.t there was any unnecessary delay, indeed, any delay, but. from weather. The record does not show that the owner betrayed any indig.nation or. any great impatience during the work because of delay.. He Aid grumble now and then, to hurry them up. But this is always the _:case. His, agent, Guest, yach day made certificates on tht1 daily abstract, and no sort of complamt appears there. Weighi.ng
of
'dence, there being dbthing to impeach the crediblIity of'the Witnesses, preponderance is 'clearly with libelant. At all tbe burden on defendant is not overcome. This item is disallowed. Thencxt item is fortheproflts'Whichtherespondent might have made with his boat during the unnecessary delay ,-$200. Even were we.at liberty to gointotbis con,clusionabove,lltated, the evidence nponit is bare conjecture. The owner swcars;.that he would have fbr,the timeilost,. The master expected inttle says that when' in blfsiness she 'miide1on the round trip; which consumed two ,days, (rom $261 to $130 gross." Hedoes not what the expenses are. ,tlws,e.,iqen, bad acceS!? t9 testimony, not ,the, hooks of the boat. They ,wpuld, haye ,giV,en conclusive,. of ooqrse,but agllidej perhaps., " This ,loose <conjecture is IUIl:lberin'cutting by hand not testimony. The next itemis for 'instead of bysaw;-l$75..'. for the libelant asserted thatthe YP+P: was as.' well preplire4. knew of t? qo lyo,rk, as far as ,was concerneg. TheM,lll their testimony I so prepared. The respondent says that this was false, as they had no band Saws. Dea-n, the.superintendent of libelant, says that band saws are not invariiJ.bly used in shipyards;; indeed, their use is unusual. The respt>ndent ipsists on this item a(if the statement was a !warranty He in' the"yardj:saw, or could,see,for himself, what 't'\Tlis in 'it; could certainly see ifthey ha'dbandsaws.. Even supposing the statement was an exaggeration, thisitemcanliot be allowed. Slaughter v. Gerson, 13 Wall. 379. I'Where the rheans of information are at haIld, !;lnd equall.V open to both parties, and no concealment is made or attempted, the Ian· guage 'of the eases is that the misrepresentation furnishes no ground for Ii court of e4uityto refuse to'eqforce the contract of the parties. The to avail himself in such cases olthe means of information,whether attributable to his indolence or credulity, takes from him all juat Claim to release." The nextiteiri!is overcharge in t>riceof lumber used. When the owner went to make his arran[J;ements ab6ut his steamboat, he offered to furnish hiso.wn IUinber. Thishe ,states, and it is nOWhere denied. They replied that was not necessarYr,'and that the prices of lumber would be made'satisfactory. This also is not distinctly deniep.Guest called attention.,to theicharge for lumber in the first abstracts, and his and SheriB"soqjecti'on to it, and was told "that, while he had started signalong, andintbe settlement ing thell.bstracts at that price, to he would make the priceof the lumber perfectly satisfactory." This being. so,thefnll price of $40 perM. cannot be charged.' Respondent was misled by action and words of agents of libelant. This item is sustained. ' The neititern,is not sustained,-.-overcharge in lumber for scaffolding,""'-$(i2. : The evidence upon it is too vague and uncertain. In fact U'l'ere'isno 'evidence at all 'tit how much lumber was used fo1' scaffolding!. ..
, 'HE ·lIATTANO.
881
The next charge,-overcharge for ironing rendered necessary by using pine instead of oak, according to contract. .As we have seen, there was no contract that oak only was to be used. The pine was used with the knowledge of Sheriff and Guest. The weight of the evidence is that no serious objection was made. The item is not allowed. The next item is for loss of time in sending skilled workmen to cull lumber. This item is based on the idea that when lumber was wanted a skilled hand went out, and selected 'it, and so lost time. The work should have been done by a common hand. We see no force in this. The plan adbptedsecured' the best pieces oflumber, and prevented loss of time in the rejection of the lumber,-a probable result if selected by an unskilled person. Item disallowed. ,The next item is. tor ,qua,ntitY,oflumber spoiled, .and time 10stiF\,taking it out and doing over a second and third time work improperly done, this was worth explaixied by Dean, and in lio could be allowed, unless the act was willful, or so careless as to amounttQ:willfu]ness. The .last item is for· overcharge for the services of carpenter Berry, 820: .It that the Jibelant paid Berry, who wa.s a hand furnished by respondent, employed by it at his request, and borne on their roll, $2.75 and charged respondent $3.25. This item should be allowed.r we allowof)hese items $461.69, and disallow the rest. The judgment of the circuit court is reversed. Let the case ,be remlUfded tothat court with instructions to enter a decree for the libelant in the sum of$1,374.74 and costs. v.52F.no.lO-56
8S1
.
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THE
,iTHE 0AKLAlIlD;, (:
.' BIGGS 11. THEOmoNet "'1;'1
al."/i
.(DUtmct C01lirt,1Il.,D. Pen'n8Y1'M'7/-U1. NOYEll!2ber ,9,
Nq.26L' ANII·J:.iOOtto:D!CS.< :.·lL:.': .
:,'NI>ToWs IN' , Co'.. .... Po.
BAl'-LICJJlTS '.
at for qf in bay, a few .miles nortll'$Ve8t ofCa Henrf.<J;h6' tide was running in strollg, wHioh brought her head . nearl,lIouthi '6'r for6sail" madnsail, and II.p. an.ker were. u. buttb.et:Q.,. w.as 8.°1'1'.0011 . any wind, and the booms were properly Hljr,anohor light was bjlrning brightly in thlj proper place,' ·.A:stea.mer, with 'three oCean barges in tdW, on llaWBel'li 'a:ggregatiugtwothirds of a mile or more, cQurse, approooh\l4, vez;ynew observinS- .)M light" and. tqen, to. the llOuth, . pasSIng 'witbin ''1'00 01'·200' yards,. sna:carrying the' first barge lIafely by, but altDost,itnmediat.ely.she:resumedlleI' OQurs" and the l!QCOud barge was car... .. 0bse.ured.bY. a.n.Yfi.Hin. g of t.he sal.lll, a.Dd. (2) thoatt.h.e. lItea.merwa.lI in fa.u It. 1U,.1laking so to in.liIot turn. ing south and.!n resumlUg her tOo soon. S; B.ur"':'Ni&uGENi:lm 01' M..ilTER....laNOR.A:N..CE 011' 'TIIIES: ,. , , ;J;t WtIo81ntltCUsa:ple fol'the tlllj stelLm,er ;to ,be ignorant of tlJ,e state of the tide and'ita timderioy to carry the ..' ,
8. SAMB-LoOKOUTS.
-,.:....
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The barge whioh collided with the schooner wall alsoln·flWlt.toI' :ta.ilirrg to keep a proper lookout, and in being allowed to drift with the current, when by proper vigilanoo her long hawlIer would have enabled her to control her course' 110 as to avoid the collision.
In Admiralty. Libel by Peter H. Riggs, master of the schooner John H. May, against the steamer Orion, whereof William H. Smith is master, and the barge Oakland, whereof George A. Belcher is master, for damages for a collision. Decree for libelant. Curtis Tilton, for libelant. Morton P. Henry, for respondents. BUTJ,ER, District Judge. The libelant, at 2:30 A. M. of February was lying at anchor in the Chesapeake bay, a few miles northwest of Cape Henry. The tide was running up strong; the wind, which was from southwest, was so light that she was virtually becalmed, and had anchored in consequence. Her stern swung with the tide, bringing her head nearly south. The foresail, mainsail and spanker were up, the booms hauled in amidships between the masts and properly secured. All other sails were down. The customary anchor light, hanging from the forestay sail halyards, was burning brightlYi and an anchor watch was in charge.
last,