81 F. 208 (2nd Cir. 1897), Hurlbut v. Turnure

• Citation: 81 F. 208
• Party Name: Hurlbut et al. v. TURNURE et al.
• Case Date: May 26, 1897
• Court: United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 208

81 F. 208 (2nd Cir. 1897)

Hurlbut et al.

v.

TURNURE et al.

United States Court of Appeals, Second Circuit.

May 26, 1897

Page 209

Convers & Kirlin, for libelants.

Edmund L. Bayliss and Walter F. Taylor, for respondents.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM.

The steamship Dunedin, upon her voyage from Cienfuegos, Cuba, to New York, in October, 1891, encountered very severe weather, and was compelled to put into Newport News for coal. Before she reached that port she had burned some of her materials and some of her cargo for fuel. The libel was brought before the district court for the Southern district of New York upon a general average bond to recover the respondents' share of a general average assessment made upon the steamship and her cargo for the expenses thus thrown upon each, and for the port of refuge expenses. The bill of lading of the respondents' sugar contained a clause authorizing the vessel to call at any port or ports for any purpose.

The facts in regard to the voyage and the seaworthiness of the vessel are accurately stated by the district judge, as follows (76 F. 587):

'The steamer left Cuba on the 3d of October, with a cargo of merchandise, including sugar of the respondents and others. An ordinary passage with her cargo, and in the probable condition of her bottom (not newly scraped), would have been eight days, or a few hours over, excluding any specially unfavorable weather. Her consumption of coal was 12 tons per day; and the evidence does not warrant my finding that on leaving Cienfuegos she had over 115 tons,-- a supply for, say, 9 1/2 days. She was 12 days, however, in reaching Newport News, still 1 day's sail from New York. On the 4th of October (the second day out), on rounding St. Antonio, she met head winds and seas, and on the 9th and 10th a northeast gale. This, on the 11th, became a hurricane, which continued through the 12th and 13th, and carried her back on her course, so that she was unable to reach Newport News until the 15th of October. On the morning of the 11th, with only 18 tons of coal left, the engineer began to use ashes and ship's material along with the coal, and on the 12th, with 12 tons of coal remaining, the use of sugar as fuel, along with coal, began. During the last half day, on the 15th, before reaching

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Newport News, only sugar fuel, according to the captain's testimony, was used.'

We agree with the district judge in his further finding that 115 tons of coal was not a reasonable supply for the voyage, at that season of the year, from Cienfuegos to New York, but that 10 days' supply, or 120 tons, should have been taken in...