(Di8trict Court, S. D. N6'IJJ :Lork.
COLLISION-RuLES OF NAVIGATION,
A steam-tug having another tug, with which there Is danger of collision, on her own port hand, is bound by the twenty-third rule to keep her course; and it is no defense to a violation of this rule to show that she blew two whistles, and at once sheered to port in order to give the other tug more room to cross her bows, other tUg designed to cross the stream, the latter on the supposition that not having given any answering signals assenting to this maneuver; and where a collision ensued from such change' of the former was held liable. "
In Admiral,ty. E. D. MdCarthy, 'for libelant. Benedict, Taft d: Benedict and S. Y. for the Scudder d: Garter and G. k Black, for the Yosemite. BROWN,D. J. . The libel in this case was filed by the owner of thi:l canal-barge Shoe, 'to recover'damages for a collision on 1 the 'foutthdf' February, 18$0, with the schooner Yosemite, in Buttermilk channel, whereby the barge was sunk. The Yosemite was intow of the steam-' tug Hudson, upon a hawsel' about 20'0 feet long. As they were coming tlpabout the middle of Buttermilk channel; with a strong tide, the captain of the Hudson, when about abreast of the blackbuoy, saw the steam-tug E. A. Packer, with the Shoe in tow, lashed upon' her starboard side, coming down :the stream near Governor's and not far from the government :docks. Shortly afterwards he two blasts of his whistle, and; without waiting for any teply, he immediately starboarded his helm, 'designing to go to the left, between the E. A. Packer and Governor's· island. In doing so the Hudson went about 75 feet clear of the barge, but the Yosemite, unable to keep in the wake of the Hudson, and being swept further out by the· strong tide, was drawn against the stem of the barge and sunk her. Those on board of the Yosemite did all that they could to keep away from the barge, and n() fault being found in them, the libel, as to the Yosemite, must be dismissed; with costs. The Hudson was plainly in fault, and must· be held liable on several grounds. The E. A. Packer, with her tow, having a strong adverse tide out in the stream, was making her way just inside of the eddy, along the line of the shore, and at a distance of from 150 to 200 feet therefrom. 'When first seen from the Hudson she was above the elbow formed by· the shore line below the government docks; and was therefore pointing somewhat across the channel and towards the
Brooklyn shore. The Hudson was on her starboard bow, while, according to the preponderance of tes,timony, the Hudson, before her change of course, had the E. A. 'Packer somewhat on her port bow. In this situation;, lmder'rules 19 and 23, it was the duty of the Hudson to keep her course, and the duty of the E. A. Packer to keep out of the way. There is no reason to a.uppose the Packer would not have done so if the Hudson had held her cOllrse, acCording to the twenty-third rule, as there was plenty of sea.room ,t,tpd no obstructions. The Hud· son's strong sheer to port, under & starboard ,helm, in violation of the rules, led directly to the collision, and for this the Hudson must be held liable. The excusegiven by her captain, that from the way the was heading he supposed she was going across the stream to the coal-docks below Hamilton ferry, cannot be admitted as sufficient to exonerate the Hudson. Notonly was this surmise as to the desti· nation of the Packer i:pcorrect, but the excuse, if allowed, would defeat one of the objects of the rules of navigation, which is to esin navigation, instead of the uncertainty dependent tablish certainty upon surmises. It wlJ>s the manifest duty of the Hudson to the rule and keep her course, at.lea'St until a different course was agreed upon by both vessels through the exchange of mutual signals. The captain of the Hudson did not do this; but, incorrectly assuming that the Packer was designing to cross the stream when she was merely keeping the line of the shore, and intending to continue down 'Yithin the eddy, assumed also the responsibility and the risk of violating the rules by blowing two whistles and immediately making a strong sheer to port,without waiting for any signals of assent from, ihe }>acker, which, in fact, were never, given. All the circumstances of the case, moreover, rendered the maneuver of iheHudson a rash one, except upon the assured co-operation of both tugs after mutual assenting signals. The ,Packer ,was moving slowly, within a slightdownward eddy near the shore; the Hudson was going at the rate of some six: or se;ven miles per hour, in the full whistled, the tugs strength of thetlood-tide; and when the were only about a quarter of a mile, or less than two minutes, apart. In taking a strong-sheer to port, out of the tide and into the eddy, so as to pass between the, Packer and Governor's island, it was manifest that the Yosemite, on a hawser 200 feet could.not be kept so far· in. spore as the Hudson, but would necessarily be swept along somewhat out:wardby the strong flood-tide, thus rendedngany nice calculations as, to, her ..exact course impossible, and the maneuver a very hazardoUBo:pe within the narrow space allpwed available.
The'prevailingreason: for the' Hildson.;s courSe seems, however; to have been the captain's preferenoe for the westerly fork of the channel around Diamond reef, instead of' the easterly one. But it was proved on the trial that the easterly one was equally safe, and was theri unobstructed: .flO that no weight can be given to that consideration. The Packer ll'Ot being sued, I have not considered whether or not she was in fault for not doing all she could to avoid the collision. The libelant is' entitled to judgment against the Hudson. with costs, and to an arderof refereLlce to Qscertainthe '
Court, E. D. New York. December 18,.1882.)
1. BILL 01l' LADING-OUtGO NOT'DELIVERKD-BURDEN 01l' PROOll'. A cargo of sulphur, on being weighed as delivered, proved to be tons short of the amount stated.in the bill of lading, which also contained amemorandum "weight and quality unknown;" three officers of the vessel testified
that all the sulphur, taken in was delivered, except what escaped through the pumps.. Held, that·tl'ie burden was upon the consignee to prove that the durerarose from abstractioD of the.missing quantity OD .the v<>yage.
2. 1rIAllTER'sGRA'l'l1ITY. On the above state the ml¥lter wlj.l!Atfld, to recover a gratuity provided by contract to be paid to him by the consiiDee on proper dellver,y of the cargo. ' .
Ullo cf for the ve$sel and the master·. Sidney Chubb, for the consignee.'
BENEDIOT, 0.. 3;·. These two cases.were tried together. One action of 28 tons of sulphur, alleged to have been shipped is for on board the Italian bark Ismaele in the port of Girgenti, to be thence transpartedtoNew York. The se.cond-named action is to recover a gratuity of .£10, provided by contract to be paid .to the master on proper delivery of the Jargoof .the .same vessel on the same voyage, being the. Ball)6 cargo of splphur referred to in the .action for non.. delivery., On the partofthe.m,erehant, the charge is that 28 tons of sulphur were abstracted from theo&rgo during'the 'Voyage ill
-Rllportedby R. D.&Wyllyl Benedict.