the probable loss in consumption resulting from the advance to 60 cents will be 25 per cent. is well supported by the evidence. If that be true, then, based upon the total sales for domestic purposes in 1915. amounting to 724,899,500 cubic feet, the sales under the 60-cent rate would be that amount less 25 per cent., or 543,674,625 cubic feet. At 60 cents per thousand this consumption, with income for minimum bills, forfeited discounts, and miscellaneous earnings added, will produce $332,954.78. Based upon the experience of 1915, the annual operating expenses would be $246,841.21, leaving earnings over operating expenses $86,113.57. Taking as a basis of valuation the conclusion of the Commission that the value of the property of the company used and useful in the sale and distribution of natural gas with water gas as a reserve service is $1,620,000, the earnings over operating expenses, as above calculated, would furnish a return upon this valuation of but 5.31 per cent., with no allowance whatever for depreciation of the property. The company is entitled to earnings which will amount to a return of at least 7 per cent. upon the fair value of its property used and useful in the business. Therefore the proposed rate of 60 cents is far from being unreasonably high.

[5,6] But are we justified in finding from the evidence before us that the receiver of the Kansas Natural Gas Company will not demand. and receive two-thirds of the increase in receipts resulting from the advance to 60 cents, as would appear he might do under the contract in force between the Kansas Natural Gas Company and the St. Joseph Company when the receivership intervened in 1912, and under which the receiver and the St. Joseph Company have long been operating? If he should successfully make such insistence, resulting in his securing 40 cents as its portion of the 60-cent rate, the evidence offered by the St. Joseph Gas Company before the Missouri Public Service Commission, and now a part of the evidence before us, establishes that the receipt of the remaining 20 cents by the St. Joseph Company, under the changed conditions which the advance to 60 cents would bring about, would not result in any net gain over the 123 cents received under present conditions. And of course, under such circumstances, as between the utility and the consumer, the just thing to do would be to let the rate remain at 40 cents. It is urged by counsel for the St. Joseph Company that reasons exist why that company is not bound. to further abide by its contract with the Kansas Natural Company. But, even so, if it may now disregard the contract, then likewise the receiver of the Kansas Natural Company would be no longer bound to furnish gas at 263 cents, or for that matter at any price. If the receiver should demand a compliance with the terms of the contract, or as an alternative refuse to furnish gas, then the advance to 60 cents would not avail the St. Joseph Company. What the receiver shall do in this regard when the question is presented must depend upon the instructions he shall receive from the district court of Montgomery county, Kan., of which court he is an officer. The evidence discloses certain assurances which the receiver and those assuming to speak in the matter have given the St. Joseph Company, that the receiver will be content with the 262 cents per thousand cubic feet for gas furnished by him, even in case the rate of 60 cents at St. Joseph should

become effective. But, until the question of such modification or abrogation of the contract is presented to the court of which he is an officer, and determined by order of that court, neither the receiver nor any one for him is authorized to make any binding agreements with reference to the same. Therefore we cannot find from the evidence now before us that the St. Joseph Company will realize more than 20 cents per thousand cubic feet for the gas furnished, even if the rate is advanced to 60 cents, and in that event, as we have seen, such advance would not better its condition.

The application for the injunction must therefore be denied without prejudice to another application to this court on the evidence already introduced and other evidence of a substantial change in the situation; and it is so ordered.

1. COLLISION

THE STELLA.

THE VAUBAN.

(District Court, E. D. New York. April 26, 1917.)

115-VESSEL IN TOW-TUG MASTER ACTING AS PILOT. The fact that the master of a tug, in charge of the towing and docking of a ship, also acts as her pilot, to comply with the statute requiring her to have a pilot on board, and is paid therefor, does not render the ship liable for those operations which are exclusively the actions of the towing agent.

[Ed. Note. For other cases, see Collision, Cent. Dig. §§ 244-247.] 2. ADMIRALTY 79-SUIT FOR BREACH OF CHARTER-EFFECT OF JOINDER OF TORT-FEASORS.

Where the owner of a chartered boat, injured in collision, in a suit against the charterer for breach of charter in failing to return the boat in good condition, also joins the vessel or others alleged to be in fault for the collision, the tort issues between libelant and the third parties were to be first tried; the charterer being liable only in case the damages cannot be recovered from the tort-feasors.

[Ed. Note. For other cases, see Admiralty, Cent. Dig. §§ 592-594.] 3. SHIPPING 54-CHARTER-LIABILITY OF CHARTERER FOR INJURY TO BOAT IN COLLISION.

The charterer of a barge with her master for lighterage service left her temporarily at the end of a pier until she could discharge her load to a vessel in an adjoining slip, which was then filled with other lighters discharging. Three days later, after the slip had been cleared, so that her master could have her moved around inside, but while she still remained at the end of the pier, she was injured by collision with a vessel entering the next slip. Held, that the charterer could not be charged with negligence in so leaving her, which would render him liable to the owner for her injury.

[Ed. Note. For other cases, see Shipping, Cent. Dig. § 78.]

4. SHIPPING 62-CHARTER OF BARGE AND MASTER-LIABILITY FOR ACTS OF MASTER.

The master of a barge, employed by the owner and who goes with her when chartered, as between the owner and charterer, represents the owner in certain things, although the charter is a demise.

[Ed. Note. For other cases, see Shipping, Cent. Dig. § 83.1

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

5. COLLISION 72(2)—VESSEL LYING AT END OF PIER-MUTUAL FAULT. A barge in charge of a master had been for three days lying at the end of a pier, with her bow extending in front of an adjoining slip, contrary to the provisions of section 879 of the Greater New York Charter, which made her liable to damages by a vessel entering the adjoining slip. Her master was notified to move out of the way to allow the entrance of a steamship into the slip, and was also signaled by the tugs in charge of the approaching vessel; but he made no move, and the barge was struck and injured by the entering ship. Held, that the barge was in fault, but, on the evidence, that the tugs were also negligent, and liable for half her damages.

[Ed. Note. For other cases, see Collision, Cent. Dig. §§ 244-247.]

In Admiralty. Suit by William S. Bartley, as owner of the boat Stella, against Frederick B. Dalzell, W. Freeland Dalzell, the Merritt & Chapman Derrick & Wrecking Company, and the steamship Vauban. Decree for libelant for part damages against Dalzell & Co.

Foley & Martin, of New York City, for libelant.

Haight, Sandford & Smith, of New York City, for F. B. and W. F. Dalzell.

Van Iderstine, Duncan & Barker, of New York City, for Merritt & Chapman Derrick & Wrecking Co.

Burlingham, Montgomery & Beecher, of New York City, for the Vauban.

CHATFIELD, District Judge. The libelant chartered the scow Stella to the Merritt & Chapman Derrick & Wrecking Company for ordinary lighterage service, upon oral request over the telephone, on or about the 29th day of October, 1915. The Merritt & Chapman Company took the Stella into their possession at Fifty-Fourth street in the North River, and the master or captain of the Stella, who was on board at the time and was hired by the libelant, went along with the boat. She was loaded with a cargo of machinery or engines for a steamer lying upon the north side of Pier 10, on the Brooklyn side of the East River.

Upon arriving in the East River, it appeared that the slip between Piers 9 and 10 was filled with boats delivering cargo to this steamer, and the Merritt & Chapman Company tug left the Stella at the outer end of Pier 9. This occurred upon Friday, October 29th, and the Stella remained at the end of this pier until Tuesday morning, November 2d. In the meantime she had had no opportunity to deliver her cargo to the steamship, and on the morning of November 2d, the captain of the Stella was told by the superintendent of the company in control of Pier 9, to drop his boat around the end of the pier and inside the slip, as information had been received that a steamer was to be docked in the slip between Piers 8 and 9. The captain did not see fit to follow this instruction, and at about 11 o'clock on that day the steamer Vauban appeared, proceeding through Buttermilk Channel and up the East River in control of four tugs.

The officers of the Vauban were on board and her captain was upon the bridge, but she was not under her own steam, and a captain from

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

one of the tugs was also upon the bridge, from which point he directed the towing and docking of the vessel. This operation was being done by contract with the firm of Frederick B. Dalzell & Co., who owned the four tugs in question. Of these the witnesses all agree that the C. P. Raymond (whose captain had been upon the bridge and in charge of the fleet as the boats came up through the Buttermilk Channel) was immediately under the port quarter of the Vauban, with her bow toward the side of the steamer. The W. F. Dalzell was immediately under the starboard quarter of the Vauban and with her bow toward the side of the vessel. The Fred B. Dalzell had a line from her stern to a cleat upon the port bow of the Vauban, and was towing upon this line, throughout the period which will be described later, at an angle of about 45 degrees to port from the line of the steamer's keel. The Dalzelline had a line from her stern to a cleat upon the port side of the steamer near the stern, and was pulling at an angle of about 135 degrees from the line of the keel, or nearly at right angles to the tow line of the Fred B. Dalzell.

[1] When the captain of the Raymond left the bridge of the Vauban, his place was taken by the captain of the W. F. Dalzell, who not only directed the subsequent operations, but received a fee of $5 from the captain of the Vauban, who thus complied with the statutes requir ing the presence of a pilot upon the bridge of the steamer while navigating inland waters. The performance of this double function by the captain in charge of the towing and docking operations and his presence as pilot for the steamer does not render the steamer liable for those operations which were exclusively the actions of the towing agent. The steamer and its officers (as distinguished from the tug's) appear to have been guilty of no negligence. The captain of the C. P. Raymond left the bridge and went to his own tug, for the obvious reason that, as the steamer went into her pier with her port side along the dock, the Raymond would be the first tug to leave the vessel. Her captain therefore turned the control of operations over to the captain of the tug upon the opposite side of the vessel, who could remain in position until the operation was completed. No difference in responsibility arises from this change in command.

The facts show that all the way from Pier 30 up to Pier 10 an exceedingly strong wind was blowing. The Fred B. Dalzell and the Dalzelline were both holding the vessel away from the piers, and the Dalzelline was actually being dragged stern foremost. One of the captains stated that she was used as a sort of sea anchor. But, inasmuch as the dragging force was the wind, it is evident that the Dalzelline directed her course into the wind, instead of being dragged directly astern of the Vauban. When off Pier 10, various parties observed the Stella lying on the head of Pier 9, and with her bow projecting a few feet into the slip between Piers 8 and 9. The captains of the four tugs testify that they began a continuous blowing of alarm whistles, in the form of short toots, for the space of 20 minutes, in order to attract the attention of the Stella's captain and to cause him to move his boat. No fire boat or police boat or fleet of salvage tugs answered this prolonged alarm, and whatever may have been the duration of the operation, apparently every one in sight or hearing ascertained that the

blowing had to do with the docking of the boat, and no outside persons joined in observation of the occurrence.

According to the captains of the four tugs, a tremendous squall or wind of hurricane force bore down upon the Vauban at this time from the west. They all agree that this wind forced the Vauban steadily over, in spite of the efforts of the four tugs, until the Vauban brought up on the forward port corner of the Stella, at a point just aft of amidships on the starboard side of the steamer. These witnesses testified that the Vauban had been taken up the river by the tugs to a point where her bow was opposite Pier 8, and was actually carried back by this west wind, so that her bow swung clear of Pier 8 and into the slip, where she was placed in her berth along the southerly side of Pier 8, without injury to the steamer.

Pier 8, East River, on the Brooklyn side, is nearly opposite Fulton Market in New York, and the offices of the Dalzell Company are on the New York side of the East River at a point where a full view could be had of the occurrence on the Brooklyn shore. While the steamer was in contact with the Stella, Mr. Dalzell, who had just come into his office, observed her position and the difficulties caused by the heavy wind against which the tugs were struggling with the vessel. He went downstairs and sent another tug, the Guiding Star, which arrived in time to help place the Vauban at her dock. But Mr. Dalzell did not hear the whistling and did not see the movements of the vessel prior to the time when she came in contact with the Stella.

The servants of the company which occupied Pier 8, and to which the Vauban was consigned, had cleared the steamer's berth earlier in the day, and one of them had gone over to Pier 9 and gotten the captain of the Stella out of his cabin in order to tell him to make way for the Vauban. This witness testifies that the captain of the Stella appeared to be intoxicated. At any rate, the captain of the Stella, who testified that he was a teetotaler, even though his appearance in court would cast suspicion upon that claim, made some profane answer and went back into his cabin, where he apparently remained, and ignored or did not hear the whistles of the fleet of tugs, and was brought to a realization of the presence of the Vauban by the blow of the collision, which knocked him over, laid open his head, and would of itself be sufficient to account for his dazed condition from that time on. He evidently took no part in the movement of the steamer into the slip, but remained upon his vessel until she was towed away and ultimately taken to a dock for repairs. He has remained as captain of the vessel until a few days previous to the trial, and no explanation was given by either side as to the manner of his leaving that employment, nor as to the condition in which he appeared in court.

[2] The libelant brought his action against the Merritt & Chapman Company, as charterers, alleging a breach of their obligation to return the vessel in good order, except for reasonable wear and tear. The libelant included as respondent also the firm of Fred B. Dalzell & Co. charging them with a tort arising from their alleged negligent towing of the vessel. The libelant further made the steamer Vauban a party defendant, charging it with tort, upon allegations of responsibility for

the collision.