Weeks v. The New Orleans

29 F. Cas. 583, 1879 U.S. App. LEXIS 2252

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: July 31, 1879
• Status: Published

Opinion

WAITE, Circuit Justice.

The facts, as found, are clearly established by the evidence, and satisfy me, beyond all doubt, that the failure of the steamer to keep a sufficient lookout was the sole cause of the collision. The order on the schoner to luff could not have contributed at all to the accident, and, if it did, made as it was in extremis, was not in law a fault. With her sails shaking for want of wind, and the sea rolling, it is impossible to believe that any change of her speed could have affected materially her course in the short time that intervened between the hail from her deck, heard on the steamer, and the coming together of the vessels. When this hail was given, it would take the steamer less than a .minute at the speed she was going to reach the schooner. This is shown, not only by the estimates of the distance made at the time by those on both vessels, but by what transpired meanwhile. As soon as the second mate on the steamer heard the hail, he looked over the starboard side, saw the schooner, ran from the deck to the wheel house, gave the order to port, and himself helped to put the wheel over; but before the steamer, at her rate of speed, and steering easily, changed her course materially, the collision occurred. The captain, as soon as he heard the order to port, got up, opened the door from his room into the wheel house, saw the danger, and rang the bells to stop and back: but, before any perceptible change in the motion of the steamer, the vessels were together. The order to luff was not given until just about the time of the hail from the schooner, and probably a little after. The second mate says his order to luff was given, and the next thing “'she struck us,” and this is the effect of all the evidence upon this branch of the case. I place no confidence whatever in anything said by Oberg or Potter in conflict with the other testimony. They are very clearly unreliable.

Upon the questions arising on the exceptions to the commissioner's report. I think the judge below was right in his rulings. An injured vessel is not necesarily bound to employ such persons to make her repairs as those in fault for her injuries see fit to recommend. In this case the claimants would not admit their liability, and did not offer to make the repairs themselves. All they did was to say that if Pusey, Jones & Co. made the repairs, and they were liable, they would not dispute the bills. The tender of Pusey, Jones & Co. to do the work was not communicated to the libellants until after the schooner had been unloaded, and Birly, Hillman & Stracker employed to do the work. While the amount of the bill seems large, it is sustained by the evidence. The libellants disputed it, and would not pay until they had been sued, and judgment recovered against them. While this judgment may not conclude the claimants, it tends to show' there was no collusion. The offer of Pusey, .Tones & Co. to do the work for a less sum than it actually cost is not conclusive evidence that it cost too much. If the libellants show that they acted in good faith, that no more was done than was necessary to put their vessel in as good condition as she was before the collision. and that the prices paid were reasonable. they have made out their case. This I think they have done.

As to the allowance of SI,000 for damages to the starboard side, I think, with the district judge, that after the repairs were completed the vessel was, on the whole, in as good a condition as she was before she was injured. The port side was left in a better condition, and, if the extra expense thus incurred is allowed and paid, it will compensate for any un-repaired damage to the other side.

The evidence as to what Gore swore to on the trial of the suit instituted by Birely, Hillman & Streaker to recover the amount of their bill was properly ruled out. He testified to what he believed to be errors in the bill, but the result showed he must have been mistaken as judgment was given against him notwithstanding his evidence. Under such circumstances, his statements, even though made upon oath, can hardly be treated as admissions to overcome positive evidence as to what the facts really were.

This disposes substantially of all the questions relied upon by the claimants in their argument on this appeal. The demurrer allowed is, I think, sustained by the evidence, as is also the ship chandler's bill. The exceptions to the allowance for storage of timber in Philadelphia for transporting cargo to New Tork, and for the loss of freight have not been insisted on here. None of the exceptions taken by the libellants should, in my opinion, be allowed. except the lutk, which relates to the abatement of $600 from the bill of Birely, Hillman & Streaker on account of the increased value of the schooner after her repairs. That has already been considered. As to the interest on the sum allowed for demurrage, I think, under the circumstances, it was properly rejected. The amount allowed is sufficient. under the evidence, to cover interest to the date of the report.

On the whole. I think the decree of the district court ought not to be disturbed. An entry may be prepared giving judgment in favor of the libellants for the amount of the decree below, and interest at 6 per cent, on the amount, in the aggregate, of all the different items of damage allowed by the district court, exclusive of the interest allowed and put into the decree. This amount I make $14,026.92. It is, however, subject to correction in case any error shall be discovered.

[NOTE. The libellants subsequently moved for a summary judgment against the sureties upon the appeal bond, which motion was denied, as having been made prematurely. Case No. 10,181. From the decree of this court affirming Case No. 10,179. an appeal was taken to the supreme court, where the decree was affirmed. 106 U. S. 13, 1 Sup. Ct. 90.]

The decree will be for: (1) Decree below, $15,904.98. (2) Interest on $14,026.92 from June 11,1877, to date of decree. (3) Costs in the district court.

As both parties have appealed, and the decree of the district court has been sustained, the costs in this court will be divided.