THE QUAKER OITY.
under our statutes, (section 4596,) which is, in general, similar to section 243 of the British merchants' shipping act, no forfeiture of wages is incurred by quarrelsomeness or the use of foul language. The general maritime law empowers the master by means of other punish. ments to enforce proper discipline in these respects. Both of these statutes, however, authorize a forfeiture of wages for disobedience of lawful commands, in the discretion of the court, not exceeding two days' pay by the British statute, nor more than four days' pay by the statute of this country. As the shipping articles have not been introduced in evidence, the first fine cannot be sustained; but the requirement on the twentysixth of July that the libelant attend to hear the entry in the log read, was a lawful command. Any such fines are by law required to be read to the seamen before entering the next port. Mer. Ship. Act, §§ 256,244; Rev. St. § 4597. The libelant willfully disobeyed this last lawful cQmmand, for which the further penalty of two dollars was imposed, equal to two days' pay. I have very little doubt that the'shipping articles, if produced, would show that the fines were lawfully imposed. The articles had been returned to England, and could not be obtained without some expense. Irrespective of them, the court may enforce,and in this case, I think, should enforce, a forfeiture of two days' pay for the libelant's disobedience to the lawful command to attend and hear the entry' in the log read. It is said that this court ought not to enforce fines imposed by an English statute not proved; but as the suit is''within the discretion of this court to entertain, all parties being foreign, the libelant cannot complain that the court takes judicial notice of a statute of which there is no doubt. Decree for the libelant for $27.50, and his disbursements:, without other costs.
THE QUAIOllR CITY·
. (l)iBtrlct (Jourt, 8. p. New York. January-10; , , ;
'Where a steam-tug maneuvering in a slip :rubs against or strites 8 barge moored at t.he wharf with unjustifiable force, she is chargeable with the damages properly attributable to her negligent act, though the boat struck was old and weak In dealing with old boats, however, the repairs made should be .closely scrutinized to prevent imposition, and· nothing all.owed fOl: yond those made necessa.ry by thll plpw. In this clj.8e bu,t onll-,thi:rd of the claim allowed, and costs denied. ,', ., "
In Admiralty. J. A. Hyland" for Jibela;i1t, OWelt et Gray, for claim'ants.
BROWN, J. On May 18, the canal-boat Shady Run lay in the slip on the north side of the pier at the foot of Fortieth street, North river, discharging a cargo of ice. Her bows lay to the westward and about 12. feet inside of the end of the pier. At about 7 o'clock of that morning the steam.tug Quaker City, with the boat L. D. Cummings lashed upon her starboard side and projecting somewhfl,t ahead of the tug, came down the river and into the slip for the purpose of landing her along-side and outside of the boat next to the Shady Run. Owing to the shallow water, as stated by her pilot, the tug and tow not obeying the helm as usual, the stem of the Cummings struck the starboard bow of the Shady Run and inflicted some damage, on account of which this libel was filed. The claimants do not deny that the Cummings hit the Shady Run, but allege that it was but a slight blow or rub, such as is usual in the landing of canal"boats, and that the damage to the Shady Run arose from her rotten and unseaworthy condition. ,there are various Without going into the details of the circumstances which satisfy me that the blow was one of more violence than the claimants' witnesses acknowledge, and that the claimants must be peld responsible for the damages properly arising therefrom.. The chief difficulty arises from the contradictory evidence in regard to the sound or rotten condition of the Shady Run. Complaint being made the same day by the owner of the canal·boat at the claimants' office, their agent and the captain of the Quaker Oity, on the afternoon of the same day, examined the bows of the Shady Run to ascertain the damage. '.l'hey testify that no damage was visible on the outside; that on gt:ing down the hatch, inside the boat, with the owner, one beam was found loose or broken, and that the captain, on taking hold of it the h!Lnd, pulled off a handful of rotten wood and showed it to the owner. The latter denies tuat any such circumstance occurred, or that the timbers were at all unsound or rotten. The evidence on the part of the canal-boat, including her owner and captain, and the carpenter who did the repairs on her, shows that from six to seven planks on her starhoard bow were broken, each about six feet long, and one plank 16 feet long. The carpenter states that the repairs which he did were to renew the plltnk specified; to put in one new tiniber, about six or eight feet in length; to brace two adjoining ones; and he testified that the timber taken out was sound. He also put in a new bumper along the bow, and one new plank upon the deck. Upon the evidence it is very difficult to form any. satisfactory conclusion with regard to the seaworthy condition of the Shady Run. The fact that she brought It considerable cargo of ice, and without much leakage, if the testimony is to' be believed, has considerable force. I can only repeat what was said in the recent case of 'l'he Syracuse, 18 FED. REP. 828, that the claimants should have procured further evidence than that of interested witnesses, if they intended
rely for their defense upon the fact that the Shady Run was so rotten and unseaworthy as not to be entitled to any recovery. Having, as I must find, hit her bows with a blow more violent than justifiable in the ordinary handling of boats, whether new or old, I think she must be held answerable for the damage properly attributable to that negligent act, though the boat were old or weak. 1.'he Granite State, 3 Wall. 310. The Syracuse, Bupra. The evidence satisfies me, however, that the repairs in this case went far beyond the naturallJffects of such a- blow, even if the canalboat was not sta-unch enough to resist ordiIiary handlin,g. The bill of items of the repairs done shows nearly 800 feet of timber· and plank used in these repairs, with numerous other items in proportion. This, as appears from the examination of the carpenter, was sufficientfor many times the amount necessary to replace and repair the parts. broken and The captain a.nd agent of the claimants testify that on visiting the ship-yard while the repairs were going on they found the whole bow of the canal-boat taken out and in course oJ repair. This is denied. by the carpenter and the owner of the boat. I am entirely satisfied from the evidence that the repairs were very greatly in excess of the· injury done. The evidenc!,! is perhaps insufficient to determine ex- ' actly the proper amount. I shall allo,w provisionally what I gather from the present evideuce, viz.: one·third of the bill of repairs; one· third of the demurrage claimed; one-half the amount claimed. for the broken lines; and the whole onhe bills for towage and dockage, as they would have been neoessary. in any event. These to·gether amount, with interest t.o date, to $72.20, for which a decreeinay be entered, but without oosts, as the amount of repairs claimed is evi· . denoe of bad faith on the part of the libelant; except, however, that if either party is dissatisfied .with my estimate of the dll-mages, they may take an order of reference to compute the amount, at the risk of paying the expenses of the reference if not successful in obtaining a. more favorable result.
GRONN 'IJ. WOODRUFF
(District Court, S. D. New York. January S, 1S84.)
1. I:impPING-ASSTGN;\IENTOF BILl, OF L.mn'..G -Ca....RTER.PARTY. A merchant purchasing- goods on board a vessel after and. taking an assignment of the bill of lading, is hound by its terms, but not by the terms of the charter-party, any further than it is adopted by the bill of lading. 2. SAME-BILL OF LADTNG--DEMURRAGE-REASONABLE Tam. Where the bill of lading provides no stipulated days for the discharge, the merchant is uound only to reasonal,le diligence, according to the custom of the port.