THE ROBERT GRAHAM DUN. CROWELL et al. v. GRANT et al., 70 F. 270

PER CURIAM. This is a proceeding by the owners of the three-masted schooner Robert Graham Dun to limit their liability, under Rev. St. § 4283, on account of a collision which took place between that vessel and the two-masted schooner Captain John, off Cape Cod, on the evening of September 20, 1893, which collision resulted in the sinking of the Captain John, and the drowning of three men who were on board of her, and constituted her whole crew. The owners of the Robert Graham Dun contested their liability for the collision.

There can be no question, upon the evidence disclosed in the record, that the court below was right in holding that the master of the Robert Graham Dun failed, without reasonable excuse, to perform the duty imposed upon him by the act of September 4, 1890 (26 Stat. 425), to lie by after tbe collision and render assistance to the men on the Captain John, and that the subsequent drowning of the three men on the latter vessel must be attributed to this neglect of duty.

It is also equally clear, upon the evidence, that the owners of the Robert Graham Dun wholly failed to establish their defense, --that as the two vessels approached each other, the Robert Graham Dun having the wind free, and the Captain John being elosehauled on the port tack, and having the right of way, the latter vessel changed her course, and ran across the bows of the Robert G-raham Dun, and thus caused the collision.

The evidence and facts in the case are fully discussed in the opinion filed by the district judge, and it is only necessary here to say that this court fully agrees with his conclusion in these particular’s, and the reasons given for arriving at them. We refer to and adopt his opinion as the opinion of this court. The administrators of the three men who were drowned filed claims in the court below to recover damages for their sufferings. The claims were referred by the court to a commissioner. It appeared that about an hour after the collision the steamer H. F.

Dimock, on her trip from Boston to New York, passed over the wreck, and those on board of her saw the face of one man clinging to the rigging, and heard shrieks from the wreckage, as coming from several jpersons. Nothing was awarded upon the claims on account of the death of the men, but in each case the sum of $3,500 was awarded by the commissioner for their mental and physical suffering while being submerged in the water, and the award was confirmed by the court, and the amounts decreed to the claimants.

We think the evidence was sufficient to justify the finding that the three men survived until they were swept from the wreck by the H. F. Dimock, but the amounts awarded were clearly excessive. There was no evidence that the men suffered any injury beyond what would be caused by remaining in the water for the space of a single hour, and for that, even taking into consideration the danger attending their situation, we think that the sum of $350 is sufficient. The amount awarded as the value of the Captain John was $1,000, and to this the owners of the Robert Graham Dun objected as excessive.

None of the witnesses estimated the value of the vessel at less than $600, while others valued it at from $1,500 to $2,000. There seems to be no reason to disturb the decree of the court below in this particular. It appears by the record that, in the costs allowed to the claimants, the sum of $37.70 was taxed as travel for witnesses out of the district in excess of 100 miles, and to this error was assigned. But this seems to have been merely the taxation by the clerk.

Nothing in the record shows that this was brought to the attention of the judge by appeal, or in any other manner, or th&t the court ever passed upon the question whether such travel was properly taxable as costs. As the question was not submitted to or considered by the court, this assignment of error has no foundation to rest upon. Whether the claims of the deceased seamen are of such a nature as to survive in admiralty is a question that was not raised at the argument, and has not been considered by the court.

The decree of the court below in favor of the owners of the Captain John is affirmed, with interest and costs; the amounts awarded in the court below in favor of the deceased seamen to be reduced in each case to $350, without costs in this court to either appellants or appellees.