derstand, to the charge against the respondents for stevedoring the general cargo.. Tally clerk.. And wharfage on lard. .$285 00 35 00 1 00 Making $321 60 which should, therefore, be allowed. The item of dunnage, $132, is also proved, and there is no contrary evidence showing that it would have been needed for grain; that item is, therefore, allowed. Wharfage for four additional days is claimed; I find that three days only should be allowed, amounting to $59.49. Eighty-one dollars is also claimed for towage on two moves of the ship for the general cargo from the elevator where the grain was loaded to Pinner's Point and Lambert's. By the contract, however, the charterers had a right to two ports of loading, Norfolk and Newport News; and by the custom at Norfolk, testified to by the respondents, and not disputed, the shippers were entitled to one removal of the ship at her expense for each 300 tons. Pinner's Point and Lambert's were within the port of Norfolk, and very much nearer than Newport News; and I find that the respondents are not chargeable with these expenses, both on the ground of custom, and also that they were a substitute for the right to send the ship to Newport News for a part of her cargo, and much less burdensome for the ship. The debit items allowed amount to $513.09. Against this should be charged as saved to the ship, the expense of elevating, trimming, etc., also the bagging and sewing saved and the hire of 1,732 bags at about 3 cents per bag. The evidence shows that under an existing contract the shipowners would have been obliged to pay only at the rate of about 3 cents a bag. What might have been the current price of bags otherwise, is, therefore, immaterial. As respects the bags it is also urged that a portion of the general cargo might have been placed on top of the grain in bulk, instead of the five tiers of bags that were used, and that the ship should, therefore, give credit for a saving of bags which might in that manner have been made, but which were not in fact saved to the ship through her own improper failure to make use of the general cargo instead of bags for that purpose. This counter charge should not be allowed, for the reason previously stated, namely, that the distribution of general cargo was made deliberately upon a substantial agreement of the parties at the time upon consultation, and to their mutual satisfaction. The master testifies that the precise point was spoken of between him and Mr. Graham, the respondents' representative, and it was considered best not to put any part of this general cargo on top of the grain. The parties can probably agree upon the amount saved for elevator and bagging and sewing charges; if not, a reference may be taken upon those points. Decree accordingly. THE SAMUEL S. THORPE,1 (District Court, E. D. Pennsylvania. January 5, 1900.) No. 26. 1. INJURY TO SEAMAN-NEGLIGENCE-HANDLING OF ROPES. Where a seaman, in performing a duty, assumes a dangerous position through his own negligence, directly leading to his injury, he cannot re Cover. 2. SAME-Volunteer. Whether the voluntary undertaking of a duty delegated to another will bar a recovery for injury received in performing it, quære. In Admiralty. The libelant, an able seaman, undertook to pay off a rope which another seaman had been ordered to cast off, and in doing so unnecessarily exposed himself, and was severely injured. No negligence on the part of the ship's officers was shown. Libel dismissed. Jos. Hill Brinton, for libelant. Curtis Tilton, for respondent. MCPHERSON, District Judge. The libelant is an able seaman, and in January, 1898, was employed on the schooner Samuel S. Thorpe. On the 13th day of that month the ship was starting upon a voyage from Philadelphia to an Eastern port, and was being moved from her dock into the stream of the Delaware river. She was in tow of a tug, upon a short hawser of the length usually employed in drawing vessels from shore into the channel, and had reached a point in the stream where it was desirable to lengthen the hawser, in order that towing down the river might be easier. When such change of length is to be made, it is usual for the tug to slow down to half speed, and signal to the tow to let out the hawser, and it is the duty of the tow to obey this order promptly. In the present case the speed was thus diminished, the signal was given, and the mate of the schooner-who was directing the letting out of the hawser, the captain being aft near the wheel-ordered the hawser to be cast off the port bitt, round which it was fastened by three or four turns. The customary and proper practice is to cast the hawser off the bitt entirely, and let it run out freely, until the necessary length has been attained. The seaman to whom the mate's order was addressed did not obey at once,-perhaps because, being a foreigner, he did not quickly apprehend the English order, and the libelant undertook to do the work. Unfortunately, he was not in a safe place. He was standing on the main deck, which was about four feet below the forecastle deck, and the bitt was in front of him, its top being about as high as his head. The hawser was lying in coils on the main deck to his right, within a foot or two of his feet. Immediately beside the bitt, on the port side, three or four steps led to the forecastle deck; and, if he had mounted these steps, he would have been in a place of safety, and could have performed the work with little likeli 1 Reported by Arthur G. Dickson, Esq., of the Philadelphia bar. hood of injury. He chose to stay on the main deck, however, and in that situation attempted either to cast off the turns, or to pay the hawser out hand over hand. In some manner not clearly explained, he became entangled in a bight of the rope, was drawn up against the bitt, and suffered a severe injury to his leg, which compelled amputation below the knee. The negligence complained of is in ordering the hawser to be paid out with only two turns around the bitt,-two being insufficient to control the hawser, and while the tug was moving at full speed. These averments have not been proved. The tug was moving at half speed only, as was usual and proper, and the libelant was not ordered to pay out the hawser at all. On the contrary, the order was to cast off, and not to pay out, and it was given to another seaman, and not to libelant. He voluntarily undertook to execute it, but if he was attempting to cast off he should have gone upon the forecastle deck, and if he was attempting to pay out he was acting upon his own responsibility. He was hurt either by accident or by his own carelessness, probably by kicking at the hawser to straighten it out, and thus becoming entangled in a bight. I lay no weight on the voluntary character of the libelant's act, but I see no negligence of the ship, even if the mate was a vice principal. The libel is dismissed, but without costs. ANDERSON et al. v. PACIFIC COAST CO. (District Court, N. D. California. January 5, 1900.) 1. ADMIRALTY-ALLOWANCE OF SET-OFF-SEPARATE DEMANDS. In a suit by an assignee to recover freight earned under a charter party, a claim, set up in the answer, for coal, which it is alleged was furnished by defendant to libelant's assignor, after the making of the charter party, "solely in reliance on the said contract of affreightment, and with the intention, expectation, and anticipation" that the price of such coal would be retained from the freight earned under such contract, but without alleging any agreement to that effect, does not constitute a set-off which can be entertained by a court of admiralty, the rule permitting a set-off for advances made upon the credit of the particular debt or demand sued on being limited to cases where there was an agreement that they should be so paid. 2. SAME-PLEADING. An averment that coal was furnished with "the intention, expectation, and anticipation" that the price therefor should be deducted from certain freights is not equivalent to an allegation that such was the mutual agreement of the parties. In Admiralty. On exceptions to answer. Andros & Frank, for libelants. DE HAVEN, District Judge. This action is one brought by the libelants, as assignees of the Alaska Yukon Transportation Company, to recover from the defendant the sum of $6,944.50 on account of freights earned by the Alaska Yukon Transportation Company under a charter party entered into between that company and the defendant. The defendant, in its answer, pleads a set-off in an amount equal to the sum sued for by the libelants, and as grounds for such set-off alleges that, after the making of this charter party, and before the freights sued for were earned thereunder, and prior to the date of the assignment under which the libelants claim, it sold and delivered to their assignor, the Alaska Yukon Transportation Company, on board of vessels owned by that company, and for use in the navigation of such vessels, coal of the value of $6,944.50, and that no part of this sum has been paid. The answer further alleges that the defendant "was induced to sell and furnish said coal to said Alaska Yukon Transportation Company, and to its vessels," by reason of the existence of the charter party referred to, and "that, if it had not been for the existence of said contract of affreightment, this respondent would not have given credit to the said Alaska Yukon Transportation Company for the price and value of said coal, or for any part thereof, and would not have sold said coal to said Alaska Yukon Transportation Company except for cash, and that in so selling and delivering said coal to the said Alaska Yukon Transportation Company and to its vessels this respondent acted solely in reliance upon the said contract of affreightment, and with the intention, expectation, and anticipation that it would so be able to repay itself for the price of said coal by applying the freight to be paid by this respondent under said contract of affreightment to and on account of the said price and value of said coal." The libelants have excepted to the sufficiency of the answer, the particular ground of exception being that it does not appear from the facts alleged that the set-off claimed by defendant arises out of, or has any connection with, the cause of action stated in the libel. 1. I do not think the answer can be properly construed as alleging that the defendant sold to the Alaska Yukon Transportation Company the coal which is the subject of the set-off claimed under an agreement that the price therefor should be deducted by the defendant from the amount of freight earned by the Alaska Yukon Transportation Company under the prior charter party which is the foundation of the cause of action stated in the libel. The allegation that the defendant, in making the contract for the sale of the coal mentioned in the answer, "acted solely in reliance upon the said contract of affreightment, and with the intention, expectation, and anticipation that it would so be able to repay itself for the price of said coal by applying the freight to be paid by this respondent under said contract of affreightment to and on account of the said price and value of said coal," is not equivalent to an averment that there was a mutual agreement or understanding of the parties to such contract of sale that the freights earned under the charter party should be applied to the payment of the price of the coal. Bank v. Kennedy, 17 Wall. 28, 21 L. Ed. 554; Maryland v. Baltimore & O. R. Co., 22 Wall. 112, 22 L. Ed. 713; Legal Tender Cases, 12 Wall. 548, 20 L. Ed. 287. In the absence of such an averment, the charter party and the contract for the sale of the coal are to be treated as separate and independent contracts. They were not made at the same time; the subject-matter of the one is different from that of the other; and, being thus independent, it must be held that the defendant is not entitled to have the amount due to it on account of the contract for the sale of the coal set off against the claim of the libelants for the freight earned by their assignor under the charter party. In 2 Pars. Shipp. & Adm. p. 433, it is said: "The admiralty has no jurisdiction of an independent set-off, and those usually allowed are where advances have been made upon the credit of the particular debt or demand for which the plaintiff sues, or which operate by way of diminished compensation for maritime services on account of imperfect performance, misconduct, or negligence, or as a restitution in value for damages sustained in consequence of gross violations of the contract." This rule, which is the same as was stated by Mr. Justice Story in the case of Willard v. Dorr, 3 Mason, 161, Fed. Cas. No. 17,680, has been often approved, and, so far as it is possible for any rule to become settled by the decisions of courts, must be now regarded as definitely settled. Dexter v. Munroe, 2 Spr. 39, Fed. Cas. No. 3,863; The Hudson, Olcott, 396, Fed. Cas. No. 6,831; The Tom Lysle (D. C.) 48 Fed. 690; The Frank Gilmore (D. C.) 73 Fed. 686. The language of Mr. Parsons, above quoted, that a set-off is permitted "where advances have been made upon the credit of the particular debt or demand for which the plaintiff sues," has reference only to cases in which advances have been made under an agreement, express or implied, that they should be allowed as a set-off as against the particular demand sued on, and does not apply to a claim of set-off like that of the defendant here, not based upon such an agreement, and arising out of a contract in no way connected with that under which the libelants claim. The exceptions will be sustained. THE ASHBOURNE. THE ROBERT HADDON. (District Court, S. D. New York. December 28, 1899.) COLLISION-LIABILITY FOR DAMAGES-PERFORMANCE OF SALVAGE SERVICES. Tugs which voluntarily undertook to rescue a vessel from a burning wharf, and in doing so, by reason of their not being able, under the circumstances, to handle the vessel safely, inflicted injury by collision upon other vessels lying at the wharf, although there was no other means of effecting the salvage, and their services were meritorious, are liable in the first instance for the damages to such vessels, which may be considered a loss or expense necessarily incident to the salvage service. In Admiralty. This was a suit against the steam tugs Ashbourne and Robert Haddon to recover damages for collision. Carpenter & Park and Mr. Symmers, for libelant. Cowen, Wing, Putnam & Burlingham, for the Haddon. BROWN, District Judge. At about 6:20 p. m. of the 7th of September, 1899, as the tugs Ashbourne and Hadden were pulling the burning ship Buceros away from a wharf on fire in the Erie Basin, she came in contact with the libelant's canal boats Columbus and Cum |