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ceived a telephone message from Betts Bros. & Co. that the schooner had floated on the high tide, and asking what should be done with her; that the agent of the claimant requested that they procure a tug and tow the vessel to Boston; that subsequently the schooner was towed to East Boston, and left on the flats; that there was then some 310 tons of coal in the schooner; that she lay on the flats for about four days, with the coal in her hold; that on January 20, the libelant, without the knowledge of the claimant, took the schooner from the flats and left her at a coal wharf in Boston where the cargo was discharged, and where she lay for about five days while being discharged; that the libelant had an agreement with the cargo owners for 75 per cent. of the coal recovered from the schooner, the owners to have the other 25 per cent.; and that, if the libelant is entitled to any services for salvage of the schooner, the claimant should be entitled to have the value of such services reduced by the value of the use of the claimant's vessel, at the time the salvage services were rendered.
It is clear that Betts Bros. & Co. fixed the amount of their charge at $1,500, and so notified Levy's agent. The claimant strenuously denies that he ever agreed to pay so large an amount. When this sum was first mentioned as the value of the services, the claimant replied that it was too much. He had purchased the vessel on the beach for $420. He urges that he would not be likely to pay so large a sum as $1,500 to get her off the beach without at least making some effort to get the work done for a less sum. The libelant relies upon the testimony of Edward H. Betts, upon a conversation over the telephone with the claimant, and upon a memorandum in a certain book. Such memorandum, however, is to the effect only that an agreement was made; it does not bear upon the price to be paid for the services. The testimony of Betts is not convincing. Upon examination of the proofs upon this point, I am of the opinion that the libelant has not met the burden of proving an agreement that the specific sum of $1,500 was to be paid for the services.
[1,2] It now becomes the duty of the court to determine what is a reasonable award. I think the service must be held to be a salvage service; it was not merely a towage service; it was.not merely a service for expediting the voyage. But, as Judge John Lowell said in Baker v. Hemenway, Fed. Cas. No. 770: "The important
part of the case is not the name by which” the services are “to be called, but the amount which shall be decreed.”
See, also, The Rebecca Shepherd (D. C.) 148 Fed. 727, 731.
The value of the vessel receiving the salvage services was fixed by agreement at $3,000. On January 25, Betts Bros. & Co. went to the wreck, taking along a lighter and two small tugs, and securing the services of a diver. The proofs lead me to the conclusion that the greater part of the service was rendered in saving the cargo. The services of the tugs Betsey Ross and Sadie Ross in pulling off the schooner towing her to Boston and leaving her on the flats, amounted to $110, and has been paid by the claimant. Certain services were,
however, rendered for the benefit of the schooner by Betts Bros. & Co. with their lighters. The schooner was taken to a place of safety on the East Boston flats and grounded there. She lay upon the flats four days, during which time the divers worked on her plugging up holes ; the lighters of the libelant lying alongside and pumping. She was taken to the City Fuel Company's wharf and discharged; this took two days more; and, during this time, the divers stood by to take care of any leaks which might develop. When the salvage service was undertaken, the schooner was lying in an exposed position, where, in case of storm, she might have been lost; but it is to be noted that, during the time the service was rendered, the weather was good and the conditions favorable.
While salvage is a proper claim, even though the ship was saved in the process of saving the cargo, still the fact that the two services were rendered as a part of one transaction has some bearing upon the amount to be awarded for the salvage of the ship. The libelant has already received a substantial sum for salving the cargo. He is entitled, also, in my opinion, to some salvage award for salving the schooner. 'In Daniel v. Cargo of Lumber (D. C.) 240 Fed. 498, it was held that the saving of the cargo was a salvage service, for which the libelants were entitled to compensation, but that it was a service of low order, since it was incidental to the saving of the vessel. In the case at bar, the proofs tend rather to show that the salving of the schooner was incidental to the salying of the cargo.
The libelant contends that the award for this service in salving the vessel should be at least $1,500. This would be 50 per cent. of the value of the schooner. When we take into consideration all the facts in testimony relating to the adventure, I think an award of 50 per cent. would be grossly in excess of anything warranted by the proofs.
Upon the testimony, I think $500 a liberal award for the salvage services. I therefore fix the amount to which the libelant is entitled at $500. For this sum a decree may be entered, with costs.
HAMMOND V. S. TUTTLE'S SONS & CO.
(District Court, E. D. New York. January 16, 1919.) WHARVES em 2017)-SINKING OF BARGE IN SLIP-FAULT.
Evidence held not to show that the sinking of libelant's barge in a publicly used slip was due to fault of respondent in placing her there, but to her leaking condition causing her to sink when her bow rested on the bottom at low tide.
In Admiralty. Suit by John H. Hammond against the S. Tuttle's Sons & Company. Decree for respondent.
Macklin, Brown, Purdy & Van Wyck, of New York City (William F. Purdy, of New York City, of counsel), for libelant.
S. M. & D. E. Meeker, of Brooklyn, N. Y. (Herbert Green, of New York City, of counsel), for respondent.
CHATFIELD, District Judge. The libelant seeks to recover damages for the sinking of the barge Armstrong in a slip outside the drawbridge near the outer end of the Wallabout Canal, which lies just north of the Navy Yard in Brooklyn. This slip is immediately up the creek from a dumping board in front of which rubbish scows are loaded in deep water. These scows and other vessels generally seem to use the adjoining slip as a berth while awaiting their turn at the piers further up the creek, as well as at the dumping board.
The libelant's boat, which had shortly before been overhauled, and which is said to have been used as a grain boat just before the accident, and to have been reasonably tight, was brought to the creek on August 22, 1917. She was intended for the respondent's coal yard, and could not be taken up through the drawbridge to the pier for unloading that night. The respondent's representative, therefore, directed that she remain below the drawbridge until the next day. She was moored alongside of a light scow, which was waiting to get under the refuse dump, and remained there during the night. The next morning the light scow was moved and the Armstrong was put in the corner formed by the drawbridge and the dock. She was there moored at a distance of some 10 or 15 feet from the drawbridge and 4 or 5 feet from the side of the slip.
The tide table shows that it was high tide around 11:40 in the forenoon, and the captain of the boat testifies that he was again ordered to remain at the berth, as the respondent was not yet ready to unload the boat until the afternoon, and that, as the tide went down, the bow of his boat rested upon some hard substance, which allowed the stern to settle when the small amount of water in the boat ran toward the stern, thus tilting her until the water came up over her deck, ran in the hatches, and ultimately sent her to the bottom, where only the extreme bow and the roof over the middle was out of water.
There is testimony that the berth was used by deep draft vessels at all times prior to and after this accident. Such vessels rested on the
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mud at low tide, and no obstruction has been indicated, except by the evidence as to the tilting of the boat. This is opposed by the testimony of the captain himself, to the effect that his boat was aground at the bow, and that she settled at the stern until the water came up over her decks. . Unless the boat was leaking, no such twist could be given by merely raising the bow, for the boat was afloat for the rest of her length, unless the amount that the bow was raised was much greater than appears to have been the case in this instance. The only way in which the stern could have been put under water was by an accumulation of water inside the boat. If this had been caused by the shape of the bottom of the slip alone, it is difficult to see how the boat could have remained in the slip over one or two previous low tides, without accident. If the injury was caused by some particular obstruction, which was close to the shore and over which the barge moved when the light scow was taken away, it is difficult to see why the respondent should be responsible for such a chance condition in a public or publicly used berth.
But, further than this, the testimony of the respondent's witnesses, that the sinking occurred in the morning, that the captain said his boat was leaking and was told it would be better to get a tug, that some one called with reference to pumping out the barge, and that the boat was seen before noon going down, is too strong to be disregarded.
The libelant has not sustained the burden of proof, so as to show that the accumulation of water in the boat, which caused it to settle at the stem, was not the result of ordinary leaking, or to show that the accident was not caused by the captain's mooring his boat so close, either to the drawbridge or the side of the slip, that it was resting on the bottom at the bow and in deep water at the stern, and that this ordinary strain opened the boat's seams sufficiently to send her stern deck under by the leaking then occurring.
The libel should be dismissed.
RAILROAD COMMISSIONERS OF STATE OF FLORIDA V. BURLESON,
Postmaster General, et al.
(District Court, N. D. Florida. January 24, 1919.) 1. COURTS 270—DISTRICT COURT-RESIDENCE OF DEFENDANT.
When a federal question is involved, suit is maintainable only in dis
trict of defendant's residence. 2. COURTS Om318-DISTRICT COURT- RESIDENCE OF DEFENDANTS-IMPROPER
Where pleadings show that a codefendant is not responsible for acts complained of, and that the suit may be maintained against the principal defendant in the district of his residence, the suit will be dis
missed as against the defendant improperly joined. 3. COURTS Am 270_JURISDICTION OF FEDERAL COURTS-FEDERAL QUESTION
DISTRICT OF SUIT.
A federal court is without jurisdiction of a suit against the Postmaster General, as administrator of a telegraph and telephone system under government control, in a district of which he is not a resident and over bis objection, to enjoin enforcement of intrastate telephone rates established by him, on the ground that his action is in violation of the joint
resolution authorizing such control. In Equity. Suit by the Railroad Commissioners of the State of Florida, against Albert S. Burleson, Postmaster General, United States Telegraph and Telephone Administration, and the Southern Bell Telephone & Telegraph Company On objection of defendant Burleson to jurisdiction, and motion by Telephone Company to dismiss. Bill dismissed.
Dozier A. De Vane, of Tallahassee, Fla., for complainants.
John L. Neeley, U. S. Atty., of Tallahassee, Fla., for respondent Burleson.
W. A. Blount, of Pensacola, Fla., and Fred T. Myers, of Tallahassee, Fla., for respondent Southern Bell Telephone & Telegraph Co.
SHEPPARD, District Judge. The complainants' bill, .exhibited against the Postmaster General and the Telephone & Telegraph Company, asks for a restraining order against the defendants, pendente lite, and ultimately an injunction against the defendants, their agents, etc., from putting into operation, or from continuing in effect on toll lines of the Southern Bell Telephone & Telegraph Company, in Florida, on any intrastate telephonic connection, the toll rates and charges prescribed by the Postmaster General's order No. 2495, or in any wise establishing, or attempting to establish, maintain or collect toll charges for intrastate telephonic communication, other than those authorized by the Railroad Commissioners of Florida.
The jurisdictional averments of the bill show that complainants are citizens of Florida; that defendant Burleson is a nonresident of Florida, at present residing in Washington, District of Columbia; the
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