TH'ECHARLEY A. REED.
competent judges and by previous experience. Every conceivable' motive existed on the part of the owners to secure this, and I think the evidence requires me to find that this was done, notwithstanding the criticisms of the libelant's witnesses as toa few details, made after the event. I must hold, therefore, that the vessel, in respect to the stowage of the propeller, was seaworthy at the time of sailing on this voyage; and that the damage to the libelant's goods arose throngh the perils of the seas in the severe gale' and the extraordinary rolling of the ship cOllsequent therefrom; that the damage would be covered by ordinary marine insurance, and was, therefore, within the excepted perils of the bill of lading, both under the general clause, and also under the special clause, as a risk which might be insured against, covered , by the ordinary marine policy. The libels should therefore be dismissed, with costs.
THE CITY OF TROY.
(Di8trict Court,S. D. New York., January 4, 1884.)
CoLLISION-ERIE CANAL-!:lUCTION-OANAL REGULATIONS.
Where the canal-boats D; 0, S. and O. A. H. were approltching each other in opposite direcLions on the Erie canal, the former on the tow-path side and . both towed by horses, and the steam canal-boat Cit.v of T. overLaking the O. A. R, attempted to pass her on the left, and 8S she did so, the effect of the steam-poat, by the swell from herbows and the suction from her propeller, was to render the O. A, R., for the time being, unmanagcable by her helm, and sent her bows across to the other side of the canal, so that she struck and injured the D. 0:' 8., lwld. that the steamer was in fault for attempting to pass theD. A. R when the two were so Dear meeting, instead of :waiting until they ha,d pa,sed each other, and that the C. A. H. was also in fault for not having stopped IlCr team of horses when the Oity of T, had approached within 20 feet of her stern, as reqUired by caDal regulation No. 49; Mld further, that 8 veSllel,. which in her navigation violates aDy express regulation will be held chargeable with contributory negligence she shows clearly that stich violation could not hrlve contributed to the collision. ' .. .
Actions for Collision.
J. A. 'Ilyland; for libelant Peters. E. G. D,/vis, for libelant Linihan and the Charley A. Reed. Beebe tt Wilco:r:, for the City of Troy. .
BROWN, J. The above libels wert' filed to recover damages for injuries through a collision on the Erie canal, near Buffalo, east of Black Rock, at about noon of October 1, 1880, between the canal-boats D. C. Sutton and the Charley A. Reed, by which both were damaged. The D.,C. Sutton had a full cargo, was towed by horse, and was go-
ing westward, and, according to custom, near the tow-path which was there on the south side of the canal. The Charley A. Reed was coming eastward, loaded, and towed by horse, and was about in the mid85 feet wide. The steam canaldle of the canal, which was boat City of Troy was at the Bame time astern of the Charley A. Reed, and overtaking her from the westward, proceeded to pass her by going between her and the heel-path side of the canal. In doing so, as it is alleged by the libelants, she rendered the Charley A. Reed unmanageable, and threw her bows across the canal, so that the latter ran into the Sutton, the bluff of the starboard bow of each canal· boat striking the other and inflicting some damage on each. The owner of the Sutton libeled both the other vessels, alleging that both were in fault; and the owner of the Charley A. Reed has libeled the City of Troy, as the one solely in fault. It is evident that the collision arose through the steamer's undertaking to pass the Reed when the Reed and Sutton were approaching each other from opposite directions. Whether the City of Troy was justified in this must depend partly upon the regulations and partly upon the distance the canal-boats were apart when she undertook to pass. The evidence shows clearly that a steamer in passing a canalboat renders the latter for the time unmanageable by her tiller; the swell from the bows of the steamer first throwing the stern of the canal-boat away from the steamer, and afterwards, as the steamer approaches the bows of the canal.boat, having the same effect on her bows, while at the same time the strong suction from the propeller of the steamer, as it approaches and passes the stern of the canal-boat, draws the stern powerfully towards the steamer. The latter co-operating with the repelling effect of the swell on the bows of the canal-boat, is frequently sufficient to send the latter upon the opposite bank of the canal, from which the steamer often assists bya line in jerking her off. These ordinary effects of a steamer's passing a canal-boat in the canal were well known to all the parties to this controversy. It is clearly dangerous, therefore, for a steamer to attempt to pass a canal-boat when there is any other craft in the canal, which may be met, not merely before the steamer herself has passed, but before the canal-boat would have time to recover her proper position in the canal. Regulation No. 49 of the canal board (Manual of Canal Laws, 349) requires that a horse-boat, when approached within 50 feet by another horse-boat overtaking it, and proceeding in' the same direction, shall turn from the tow-path, and give the rear boat every practical facility for passing, and stop whenever necessary, until the rear boat shall have passed.. The same regulation requires a horse-boat, when approached within 20 feet by a steam-boat moving in the same direction, "to turn towards the tow-path, and cause their horse to cease towing until the steamer has passed five feet ahead" of it. According to the steamer's witnesses she was going about two and 'me-half miles an hour, while the canal-boats were going from o.ne and
THE OHARLEY A. REED.
one-half to two miles. They testify that when about a length and a half astern of the Reed, two steam-whistles were given as a signal to the Reed that the steamer would pass. These were not heard on the Reed, and the latter's witnesses testify that when she was about a length off they shouted to the City of Troy not to attempt to pass" until they had got by the Sutton. These shouts were also unheard. The steamer proceeded to pass along the berme bank, there being sufficient room for her to do so without any change in the Reed's position. The City of Troy's witnesses say that when her signals were given the hOl'ses of the two teams were 200 feet apart, which would make the Sutton and the Reed at that time from 500 to 600 feet apart. But when the bows of the City of Troy began to lap the' stern of the Reed, as all the other witnesses testify, the teams of the Reed and the Sutton had passed each other, and the two boats were not more than from 100 to 200 feet apart. The captain of the City of Troy testifies that he slowed down while passing the Reed; the object of which was to lessen the effeot of the swell and the suction upon the Reed. When the Reed and the Sutton were about 200 feet apart the Sutton's team was stopped; the Reed's team was stopped when the City of Troy had lapped the stern of the Reed. The stopping of the teams, however, affected the progress of the canalboats only measurably. The Sutton at the time of the collision was nearly stopped by land, as there was a considerable current in the canal against her; while the progress of the Reed, with the same current in her favor, could not have been much checked during the short time that elapsed between her team's stopping and the collision. As the canal-boat was going only some two and one-half miles an hour, it was very plain that she could not possibly have the Reed before the Sutton was reached, even if at the time when her signals were given the distance between the Reed and Sutton was 600 feet,and the distance between the City of Troy and the Sutton 750 feet. The boats were all about 100 feet and at those rates of speed, respectively, the City of Troy would gain but two lengths while the Reed was going three. Even if the former had not slowed down while passing, she had three and one-half lengths to gain from the time when the signals were given before she would have cleared the Reed, and the latter would still have to recover her proper place in the canal in to avoid running into the Sutton. And as the, Sutton, moreover, was approaching the Reed at about the same rate, it is clear that at the time the City of Troy's whistles were given the Reed and the Sutton were not far enough apart to enable the City of Troy to pass the Reed before the Sutton would come abreast, unless she was going at a more rapid rate than her witnesses admit; and if she was, there was the greater danger through the greater disturbing effect upon the Reed while passing. On the evidence, therefore, I cannot entertain any doubt that the attempt to pass the Reed, with v.19,no.2-8
its known hazards, was rash and foolhardy, and that the City of Troy must be beld liable on the general ground of want of due care and regard for the safety of the other boats in the canal. Regulation No. 50, although not in terms including this case, does, r think, by analogy, condemn, if it does not prohibit, a steamer's ever undertaking to pass another boat when a third would come abreast of them before they had sufficiently cleared. That regulation provides that, where two boats "coming in opposite directions, shall approach each other in the vicinity of a raft, so that if both should continue they would meet by the side of such raft. the boat going in the same direction as the raft shall stop until the other boat shall have passed the raft." The evident purpose is to prevent passing three abreast, with all the dangers incident to that situation. The Reed in this case was in a situation analogous to the raft referred to in this regulation. The steamer was going in the same direction, and b)' this regulation would be required to wait until the Sutton should have passed the Reed. There was nothing in this case to prevent the Cit)' of Troy from waiting until the Sutton and Reed had passed each other, which they would have done in less than two minutes after the City of Troy had reached the stern of the Reed. There is no obligation in the regulations, and none which reason can suggest, that the Sutton should have stopped rather than the City of Troy which could easily control her own motions; but manifestly the contrary. When the City of Troy was seen about to pass the Reed, the Sutton did stop and hugged the tow-path bank, and no fault is attributable to her. . With regard to the Charley A. Reed, r am obliged to find a violation of regulation 49 on her part, in not stopping when the steam-hoat approached within 20 feet. Her helmsman first testified that his team did not stop until the City of Troy "was right broad-side of us." He afterwards said that when he first slowed up, the City of Troy had lapped about 10 feet. The regulation is explicit in such cases that the boat ahead shall cease towing when the steamer has approached "within 20 feet." Considering the precautions necessary for the safety of the boats, there was no reason why the Reed, even independent of this regulation, should not have stopped as soon as the Sutton's team was stopped. No regulation required the Sutton to stop; her captain acted as a prudent person should act in view of probable danger. The Reed not only did not act .with this care and prudence, though the danger was sooner visible to her, but she neglected the express requirement of the regulation as well. It is impossible to say that if she had slowed sooner thisconld have had no effect in avoiding the collision. The blow was a comparatively light ODe; she had a line thrown out to the City of Troy at the time for the purpose of keeping her off, and timely slowing by the Reed, as the regnlation required, might possibly have been suffioient to avoid the collision altogether. The Reed must, therefore,be held liable fat
RED WING MILLS V. MERCANTILE MUT. INS. 00.
:lontributory negligence in this respect. The Pennsylvania, 19 Wall. 125. It results from this that the owner of the Sutton is entitled to a decree: against both the Reed and the City· of Troy, and that the owner of the Charley A. Reed is entitled to a decree against the City of Troy for half his damages, with costs to the libelant in eacll case.
RED WING MILLS V. MERCANTILE MUT. INS.
(DiBt1'ict Court, 8. D. New York. January 9, 1884.)
SHIPPING LINE. THROUGH BILL OF LADING -INSURANCE CoNSTRUcrION STATE
, In Admiralty. On the fourteenth of December, 187.8, the libelants delivered to the Merchants' Dispatch Transportation Compauy, at Red Wing, Minnesota, 800 barrels of flour, to be transported from Red Wing to Glasgow, Scotland, and received what is known as a through bill of lading, entitled "The Merchants' Dispatch Transportation Company and the State Line." On the sixteenth of December the libelauts took out a certificate of insurance from the respondents' company, to the amount of $2,800, upon the 800 barrels 'of .flour insured, to be shipped "on board of the State Line, at and from New York to Glasgow, Scotlaud." On the ;arrival of the fl.ourAt New York, one of the regular vessels of the State Line having been totally lost, and there being an accumulation of goods, the agents of the State Line, Austiu, Baldwin & Co., took to themselves an assigument of a charterparty. of the steam-ship Zanzibar; from the agent of the New York Central Railroad Company, who held a charte,r of .the Zanzibar, for a.
The words used in insurance contracts are,to be understood according to their ord inary scope and meaning, unless a more restricted use is estahlished by general mercantile usage, or expressly brought to the notice of both parties. 2. SAME..,...TRANSFER OF Goons. Where flour was shipped by the Merchants' Dispatch Transportation Oompany, at Red Wing, Minnesota, for Glasgow, Scotland, by a through bill of lading of that company and the Btate Line, and the shipper thereupon effected insurance with the respondents upon a certificate of marine insurance" from New York to Glasgow on board of the State Line,i' and a portion of the flour, on arrival at New York, was loaded on board the steam-ship Zanzibar, which was not one of the regular steam-ships of the State Line, but of which that line had taken an assignment of a charter-party for a single tJ'ipfrom New York to Glasgow, the charter-party being a contract of affreij!;'htment merely, and the possession and the control of the Zanzibar remaining with her owners, and not with the State Line, held, that the Zanzibar dId not form, even temporarily, a part of the State Line, and that the insurance did not attach, but tha' the loading on the Zanzibar was a tr.ansfer by the State Line of the flour so loaded,to another steamer, in accordance with one of the provisions of the through bill of lading. Secus, had the possession a!1d control of the Zanzibar, though for a single voyage only, been in the State Line . '