36 F. 793 | S.D.N.Y. | 1888
The above libel was filed by the owners of the steam-ship Hudson to recover salvage compensation for towing the English steamer Benison into Hampton Roads in May, 1888. The Benison was an iron steam-ship, built in 1888, 245 feet long, 34 feet beam, 24 feet draught, with two decks, and of 1,736 gross tons. She ivas fully loaded with a cargo of about 2,200 tons of sugar in bags, and on the 6th of May, 1888, when about 60 miles E. S. E. from Cape Henry, in a dense fog, came in collision abqut noon with the Eureka, by which her stem and bows were carried away, down to her foot and nearly back to the collision 'bulk-head. Her-iron plates were left projecting from 12 to 14 feet forward of the bulk-head on each side. The weather and sea were calm, and signals of distress were immediately set, and help requested. The Hudson is one of the Cromwell line of steamers, plying between New York and New Orleans. She was 284 feet long, 34 feet beam, 24 feet deep, and of 1,873 gross tons. On her southward course, observing the Benison at a distance, apparently not under control, and exhibiting signals of distress, the master bore down towards her, reaching her a little before 2,p. m., and, after a conference with the master of the latter, took her in tow upon a hawser supplied by the Hudson, starting about 3 p. M., and arriving within two or three miles of Thimble Shoal light about 4 next morning, in anchorage ground, where they waited for day. After day-light the Hudson accompanied the Benison inwards until she got a tug along-side, and then resumed her voyage to New Orleans. The Beni-son, after being taken to Norfolk, and receiving some slight temporary repairs and protection to her bows by planking, was taken to Philadelphia in completion of her voyage.
The only questions before me are the amount of compensation that should be awarded, and the value of the Benison, for the purpose of apportioning this compensation between her and the cargo. The admitted value of the Benison’s cargo saved was $150,000. The evidence as to the value of th'e Benison in her damaged condition ranges from $30,000 to $70,000. She was sold at auction for $40,500. She was subsequently repaired at an expense apparently of not more than $15,000 or $20,000, and, having thereupon obtained by special act of congress an American register, which, according to the testimony, would add 60 per cent, to her market value in this country, was deemed worth $135,000. During the year previous she had been insured by her English owners under a valued policy at the surh of $97,500, and after the collision the owners received on a' settlement with the insurers about $72,000 in money, and retained the vessel, and the policy was canceled. The policy contained the usual clause limiting the liability of the insurers in case of collision to three-fourths of the insurance. It is urged that the insurance value ought not to be' considered as evidence of the actual value, because, under the English law holding the owner in case of collision to a liability .tp> the. extent of £8 per ton, the policy should be regarded as an indemnity policy against the liability for collision; $72,000 being about the amount of the liability of the owners upon the Benison’s tonnage, and the full policy of $97,500 being necessary to secure $72,000 under
Aside from the question of damages occasioned to the Hudson during the towage service, the most material point in controversy is the degree of the Benison’s danger when the towage service was begun, and her need of that service. For the claimant it is contended, and the master testifies, that she was in no immediate danger; needed no towage; could have reached Hampton Hoads at about the same rate of speed as with the Hudson’s help; required a convoy only; and that a convoy was all that he requested. The master of the Hudson testifies that the Benison’s master stated that the reason why he desired a convoy was because he feared that the bulk-head would give way if he was towed; that the former considered there would be less danger to the bulk-head from towage, because the speed and the steering of the Benison, which, in her condition, was liable to steer wildly, could be better regulated. The towage service was consequently agreed on and accepted; and some efforts, not of much service, were made to relieve the front pressure by canvas stretched across the bow. The testimony of the master of the Benison seems to mo disingenuous. He is reluctant to admit the evident and great apprehension that he felt for the safety of the ship. After her ‘stem was carried away by the collision, the steamer settled down from
The Benison, in my judgment, was in a situation of great peril. Any unfavorable weather would have been likely to carry her to the bottom speedily, either by the giving way of the bulk-head, or by rending off the sides of the projecting plates. It was impossible at that time to tell to what extent the bulk-head, or the junction of the bulk-head and the projecting sides, had been strained or weakened by the carrying away of the bows. The recent instance of the Iberia, though not in evidence, illustrates the fact of such dangers, which, indeed, common knowledge recognizes. The situation of the Benison was much more dangerous than that of The Cohn, 10 Ben. 60, or The Leipsic, 10 Fed. Rep. 585, to which my attention has been called; for both of the latter had only broken their shafts, and there was no doubt of their ability to reach port by sail. The behavior of the officers and men at the time, though the sea was then calm, is the strongest possible proof of their judgment of the matter; and the fact that the Benison might, in calm weather, have succeeded in reaching Hampton Roads, does not seem to me to lessen the actual danger, or the urgent need of the Hudson’s services. Even if the Hudson had consented 'to act as convoy merely, on the attempt of the Benison to
A further claim is presented for about $7,070, for injuries caused to the Hudson’s machinery by the towage service; and for $6,500 more for her detention during the consequent repairs. On her return from New Orleans to New York, on completion of the towage voyage, upon an examination it was found that the keys of the propeller were loose, and the hub cracked and forced about an inch forward upon the tapering shaft, so as to work upon the flange of the stern bushing; that the brass sleeve of the shaft at the outer stern-bearing was loosened, shoved forward, and somewhat broken at each end; the lignum vitse tube or bushing that formed the outer stern-bearing, was worn through into the brass sleeve of the bushing; and this sleeve was broken into three pieces by one cross-section and one longitudinal section. These were serious injuries. If they were the proper effects of the towage service alone, the libelants are as much entitled to be made whole for these damages, and for the necessary detention of the Hudson while repairing them, as for the loss of a hawser in the same service, so long as they would not exceed “the recognized limits of salvage awards.” The City of Chester, 9 Prob. Div. 182, 190; The De Bay, 8 App. Cas. 559. In the case of The Colon, supra, $300 was allowed for injuries to the deck and machinery, and $2,200 for damage to the cargo of green fruit through the increased delay. The chief difficulty is usually in determining whether the alleged general damages to the salving ship or machinery have been caused by the salvage services. The Alaska, 23 Fed. Rep. 597, 610; City of Chester, supra; The Colon, 10 Ben. 73. The injuries alleged in this case are specific; not such as general strain
So far as I am able to understand mechanical principles, I cannot find in the extra dead weight of the towage service, or in frequent reverse ing alone, any sufficient explanation of the extraordinary wear through the lignum vitss of the stern-bearings. So far as I understand, this wear, unless accompanied by hammering, is due to friction, the amount and effect of which, under proper lubrication, are dependent on the weight or pressure of the parts, and the speed of revolution. Other circumstances being equal, I cannot perceive how the mere additional dead weight astern during the towage service should materially affect the wear of the bearings, since the pressure on the bearings remained the same, and the speed of revolution was in fact diminished. The evidence shows that about eight months before, when the steamer was upon the dry-dock, the bearings were found worn down a quarter of an inch, after several years’ use. On the examination after the salvage service they were found worn down about five-eights of an inch. On April 21st, when the steamer was in New Orleans on the trip previous to this service, the log contains the entry: “After examination, found propeller blades touching shoe. ” Her blades were accordingly clipped at that time. The bearings must, therefore, have been already considerably worn down. The evidence does not show exactly the original space between the blades and the shoe. The log also shows that on the evening of May 6th, after the hawser was first broken, the “wheel was discovered to be loose,” which, as the engineer testifies, was inferred from a peculiar noise noticed on reversing. This was before the towage service was half completed. I am satisfied that the trouble began with the loosening of the keys; and, though it is possible, it is not probable, that this originated in the towage service. For it is not testified, and I see no reason to suppose, that reversing, with a tow behind on a hawser, subjects the propeller, or the bearings,'while the keys are tight, to any more strain than reversing under ordinary circumstances; nor is any previous experience cited as specially connecting heavy towage with loosening of the propeller keys. From the natural probabilities, as they seem to me, as well as from the preponderance of expert testimony, it is more probable that the loosening
The fact, which I think must be found, that the keys had become loosened before the salvage service was entered upon, and that the Hudson’s machinery was in that respect defective, and exposed her to the liability of special damage in rendering the salvage service, does not affect the justice of her claim to be made whole for any actual injuries sustained. No improper management of the Hudson, or of her machinery, while rendering the service, is charged or proved. The principle on which salvage compensation is awarded is to afford sufficient encouragement to masters and owners to take all risks of person or property necessary for the rescue of other vessels in imminent peril. Ships in distress must be aided by means of such vessels as may be at hand, whether in perfect or in defective condition. Where, as in this case, the defect of loose keys was not suspected, and special damages were sustained, within reasonable limits they should be made good. Nor is the same strictness of proof that is required in cases of contract, or of tort5 as to the cause of
The claim for damages and detention was not stated in the libel. Though some reference was made to it in the negotiations, it was not presented in any definite form. No notice of the survey was given to the respondents, nor did they understand that any such claim was made, until after several of the defendants’ depositions had been taken, and after the trial had been commenced. This operated to some extent as a surprise to them; and, though full opportunity was given to meet this claim, and although it has been allowed-so far only as seems just, I deem it so important that such demands should be fully made known at the outset, and opportunity given to the contestants to attend the surveys when practicable, that, in the absence of this, costs will be- withheld, that it may not be supposed that the court looks with indifference upon this practice. It is with reluctance that the court has felt constrained to make this disposition of costs, since the cause, though sharply litigated, has on both sides been conducted with the most friendly consideration for the convenience of each other and for the common interest.