The R.D. Bibber

• Decision Date: 25 May 1892
• Docket Number: 8.
• Citation: 50 F. 841
• Parties: THE R.D. BIBBER. v. THE R.D. BIBBER. KENEDY
• Court: U.S. Court of Appeals — Fourth Circuit

50 F. 841

THE R.D. BIBBER.

KENEDY v. THE R.D. BIBBER.

No. 8.

United States Court of Appeals, Fourth Circuit.

May 25, 1892

Brown &amp Brune, Treadwell Cleveland, Arthur George Brown, and William V. Rowe, for appellant.

Robert H. Smith, for appellee.

Before BOND and GOFF, Circuit Judges, and HUGHES, District Judge.

HUGHES District Judge.

The schooner R. D. Bibber received in Philadelphia a cargo of 780 tons of steel rails, to be delivered in good condition at Galveston, Tex., subject to the usual exception of the 'dangers of the seas.' With this cargo she drew 13 feet 9 inches aft and 13 feet 6 inches forward. She reached the outer harbor of Galveston on the 17th of January, 1887 and came to anchor. On a voyage a few months before she had taken a cargo of 780 tons of rails to the same port, safely into the wharf. On this second trip her master went ashore to the office of the pilots in Galveston, to inquire about the depth of water on the bar. Informed that this was 13 feet 6 inches on a tide, and having consulted his broker, he engaged a lighter, and went out with it to his vessel on the morning of the 18th, and took off 100 tons of rails; by doing which the draft of his vessel was reduced to 13 feet 3 inches aft and 13 feet forward, as indicated by the marks on her sternpost and stem. Thereupon he again went ashore, on the evening of the 18th, again to consult with the pilots whether still further to lighter his ship. The freight on the rails was $3, the cost of lightering $2, per ton. The pilots and his broker concurred in advising the master that, if his vessel were put in trim, he could safely cross the bar as she was then loaded. He returned next morning, and set his crew to putting the schooner in trim completing the task at half past 1 on the 19th. A pilot he had engaged then came with a tug to conduct his vessel across the bar into port. This pilot had, during the morning, taken two other vessels across, one of them drawing 13 feet 3 inches and the other 13 feet 4 inches. The Galveston pilots keep one of their boats engaged every day with the lead, and a flag on that boat indicates the depth of water on the bar. On the 19th of January the depth indicated by this signal was 13 feet 6 inches from morning down to and including the time when the Bibber was in tow on that afternoon, making across the bar. When the pilot that had been engaged came to the Bibber, he asked about her draft, saying that it must not exceed 13 feet 5 inches. He was assured that it was not greater than 13 feet 4 inches. The schooner's hawser was then taken by the pilot's tug, and they set out for port. Just at this time another schooner, in charge of another pilot, drawing 13 feet 6 inches, passed in, across the bar, without touching. About the time the Bibber had got inside the beacon, and near the red buoy which marks the channel over the bar from the outer harbor, she struck bottom. This was about 3 o'clock on the afternoon of the 19th. Vigorous efforts were made to pull her off, and were continued for an hour or two, without avail, and were finally abandoned about 5 o'clock. The master then went ashore to engage another tug and a lighter for the next morning, and remained overnight on shore, leaving the schooner aground on the bar. At the time the schooner had grounded the tide was 'just on top high water;' that is to say, at dead high tide, at the stationary stage at which a vessel gets no lift from a current in either direction. During the night of the 19th, an eastern storm came on, which 'blew very heavy.' It continued from the night of the 19th to the morning of the 22d. It prevented a tug and a lighter from coming out to the schooner on the morning of the 20th, by which time the storm had carried this vessel half a mile from where she had grounded in the channel, to the knoll and shoals on Bolivar point, and into water of only about 6 feet depth. By the afternoon of the same day the sea had become very rough, and the crew of the schooner were brought off on a pilot boat sent out by salvors, except the second mate, who remained on board. On the 20th, after the schooner had been driven by the storm upon Bolivar shoals, as described, her master began negotiations for the services of salvors for vessel and cargo, which were not concluded until the 22d. Nevertheless, the salvage services had been commenced on the afternoon of the 20th, and were brought to a successful end on the 22d. All the cargo was saved, and also the schooner itself; the latter in a condition more or less damaged. The salvage contract was for 50 per cent. of the values saved. The salvage upon the vessel was paid without suit, upon an agreed valuation. That upon the cargo was made the subject of a libel in admiralty in the United States district court for the eastern district of Texas, which decreed for the libelants. This decree was affirmed on appeal by the circuit court of the same district. The salvage thus determined, amounting, with costs, to about $13,000, was paid by the owner of the cargo, who afterwards libeled the schooner in the district of Maryland, to obtain a...