Scudder ct Carter and Geo. A. Black, for claimants. BROWN, J. On the twenty-ninth of March, 1881, the bark Lilian M. Vigus, in ballast, was taken to the Standard Oil Company's docks at Weehauken, to be loaded. Along the north side of the middle dock lay the ship Wendt; outside, and 40 feet astern of her, lay the libelant's ship Castine. The Vigus, on arrival there, was assigned a "stage berth" outside of and between the Castine and the Wendt. As thus moored, about one-third of her length aft lapped the fore part of the Castine, and the Vigus' bows lapped the starboard quarter of the Wendt. The Vigus was made fast to the two ships inside of her. That night the wind freshened. By 6 o'clock in the morning, when the captain of the Vigus came on deck, it was blowing a common gale from the north to north-east. The middle dock was about 900 feet long; the north dock, about 160 feet above it, was but 400 feet long. The Castine's bows were somewhat outside of the line of the north dock, so that she and the Vigus were exposed to the full force of the north-easterly gale. The wind increased until, between 10 and 11 A. U., it reached the extraordinary violence of 48 miles per hour. At 7: 12 A. M. it was 32 miles per hour. The fenders of the Vigus, placed between her and the Castine, were crushed and broken; others from the Castine were injured, and both ships suffered from the pounding of the Vigus in this situation. This libel was filed to recover for the damage done to the Castine. The defense is, in substance, inevitable accident; that the Vigus took the usual precautions, and used all reasonable diligence and effort to prevent the injury; and that it was occasioned solely by the extraordinary and unexpected violence of the gale. If upon the evidence I were convinced that such was the fact, I should hold the bark absolved. The Grace Girdler, 7 Wall. 203; The Morning Light, 2 Wall. 560; The Austria, 14 FED. REP. 298. But upon the evidence before me I do not think the Vigus has shown that all reasonable diligence and effort were made by her to avoid this damage. The berth which she occupied was known to her captain to be a dangerous one in an easterly wind; it was a matter of special conversation and comment between him and the captain of the Wendt the day before. Damage was known to hava been suffered there previously in the same situation. Full knowledge of the danger, and of the fact of previous damage, made it incumbent upon the master of the Vigus to be alert in watching for the approach of danger; and, when its approach was' imminent, to take all effective and prompt means that might be at hand to avert damage. During the night the wind was found to be freshening; at 6 in the morning, when the captain came on deck, it was already blowing a common gale. The danger was then obvious, and it was the captain's plain dnty to take immediate steps to have his vessel kept off from the Castine by a warp. if that were practicable; or, if that were not practicable, then to have his vessel removed to a safer place. There is no reason to suppose. the.
TJiE LIllIAN M. VIGUS.
Vigus coulll not at that time have been moved without difficulty, by the use of a tug, to another berth within the slip where no damage would have been done. It is usual to set a flag in the rigging as a. sigual that 'a tug is desired. No such signal was set by the Vigus. Between 7 and 8 o'clock of that morning a tug-boatman was about these very docks for the purpose of getting such jobs, and his testimony is that at that time there would have been no difficulty in changing the berth of the Vigus. Between 9 and 11 o'clock the superintendent of the wharf. In being consulted, suggested this means of relief. The captains both thought the gale too violent to admit of change at that time, and that was then probably true. A line was previously stretched from the bow of the Vigus (which was along-side the Wendt) straight across the slip to a post upon the north dock. The captain of the Wendt testifies that a similar line froni the stetn of the Vigus to the north dock, although angling, would have much relieved the pounding. Tbe captain of the Vigus and others think differently. Though requested by tbe master of the Castine to. get out sucb a line, no attempt to do so Wlj,S made by the Vigus, and no signal was at any time given for a tug, or apy attempt made to procure one. The line stretcbed from the bow was borrowed Wendt; and the evidence leaves some question whetber the failure t.o stretch a line from the stern to the north dock was not in fact owing to the Vigus' having no proper cable aboard. I cannot assume that the injury was caused by the extra,ordinary violence of .this gale, and by that alone, although the gale was of rare violence. The testimony shows that. the berth was considered - unsafe, and likely to do damage in ordinary gales. When such a ga,le was approaching, or had begun, the captain of the with suc:IJ. knowledge of the danger immediately impending, was, in my ment,.bound to take the ordinary precaution of securing hill vel'!sal 'bY a warp, or of having her removed to a safer positiP.Ilj and duty to do this promptly. Forfailu.re to do so, he. cannot be,e;xculleil by showing that two or three hours afterwards, wheuthe was its height and the danger was greatest, no warp could havel;>een got out, or any tug at that time have been of service, evell if the defep.d, ant's proofs are sufficient in these respects. I must hold the Vigm liable, because, when the danger was known to be imminen.t, no seasonable effort was made to keep her off from the Castine, or. to move her to a safer berth, when the means of doing so were within call early in the morning, and would have been effectua.l·. The Energy, 10 Ben. 158. Decree for the libelant, with costs.
THE MARY MCCABE,
(District Court, S. D. New York. December 29,1884.)
JURISDICTION-8TATE BOUNDARIES-MARITIME LIEN.
Under the boundary agreement of 1833, between the states of New York and New J er8ey, although the state of New York has exclusive jurisdiction over the waters of the bay of New York, to the low-water mark on the westerly, or New Jersey, shore, except the wharves, docks, and improvements made on the shore, and vessels aground or fastened to such wharf, etc., the state of New Jersey has exclusive jurisdiction over sllch wharves, and vessels so fastened. Sails were sent by the libelant from New York to a vessel at Keyport, New Jersey." lying at a brick-yard at the dock," and her owners resided there; held, that the vessel was within the jurisdiction of the state of New Jersey, and not within the jurisdiction of the state of New York; and that no maritime lien existed for supplies delivered there, and the libel was therefore dismissed.
SAME-MARITIME LIEN-REPAIRS AND SUPPLIES.
In Admiralty. Arthur Murphy, Jr., and E. G. Duvall, for libelant. Oscar Frisbie, for claimant. BROWN, J. The libel in this case was filed to recover for repairs and supplies furnished to the schooner Mary McCabe. The Bchooner was owned and registered in New Jersey. While she -Was lying by & dock at a brick-yard at Keyport, New Jersey, the libelant, of New York city, was procured by her owner to furnish her with a set of sails. The libelant went to Keyport, took the measures required, made the sails, and delivered them on board the schooner there. The libel contains no averment of any statutory lien by the law of New Jersey; but alleges a maritime lien for supplies furnished to a foreign vessel, on the ground that while lying at Keyport she was within the waters and the jurisdiction of the state of New York. But if this vessel, though lying at Keyport, was neither within the state of New York nor within the jurisdiction of the state of New York, but within the jurisdiction of New Jersey, then it is clear that the supplies were furnished within the state of the owner's residence, and not in a foreign port, and that no maritime lien exists, such as is necessary to sustain this action in rem. The long-controverted question between the states of New York and New Jersey, concerning their boundary lines and their respective jurisdictio,Ds over the adjacent waters, has been, in the main, determined by' the a'djudication in the supreme court in the Oase oj De'Voe.\Manuj'g 00. 108 U. S. 401: S. C. 2 Sup. Ct. Rep. 894. That decision holds that the boundary agreement between the two states, made September 16, 1833, and afterwards ratified by' congress, (4 St. at Large, 708,) determines, so far as it extends, not only th& boundary and the jurisdictions of the two states, but also the limitations of the jurisdiction of the United States district courts of New York and of New Jersey. Keyport lies on the south-westerly shore of the lower bay, and along the southerly and easterly side of th&