May 27, 1885.)
(Dist1'ict 001trt, E. D. Virginia.
'rOWAGE-NEW YORK HARBOR-CANAL-BoAT.
In New York harbor, when the wind is from tllC north-east, blowing at the rate of about 22 miles an hour, there is no undue risk, and it is not a fault 011 the part of a tug to take in tow an open canal-boat luaded with soft coal down to 18 inches or two feet above the water, and tow her across the North river from Fifth, street, Hoboken, to the New York shore, and then along the protected New York shore, down around the Battery, to a point off pier No.1, East river. A wind of that velocity is neither a " gale" nor a "storm," but merely a .. brisk" wind, and, ,when from the north-cast, need not suspend navigation in New York harbor during its prevalence.
SAME-SINKING OF CANAL-BOAT-NEGLIGENCE.
Held, on the evidence in the case, that the sinking of the canal-boat 1.1. was caused by her own unseaworthiness, through leaks in her bottom,-a fact carefully concealed by her master from the master of the tug,-and was not caused by her shipping in water over her comiJings from the rough sea in the river, as alleged by libelants.
Libel in rem, in Admiralty. Sharp a: lIughes, for libelants. White r1: Garnett, for petitioner and co-libelant. Whitehurst a: Hughes, for the Snap. HUGHES, J. The first of these suits is a libel by the owners of 250 tons of soft coal lost upon the canal-boat Martha, while in tow of the tug Snap. The other is a libel by the owner of the Martha, Michael Downs, for the value ofthe canal-boat, which was sunk in the East river, near the Battery, New York, on the twenty-sixth day of June, 1884. The Martha had been taken in tow by the Snap at Fifth street, Hoboken, some time after 9 o'clock on that morning, had been towed across the North river to a point opposite Desbrosses street, and had been thence taken down along the piers of North river around the Battery, beyond East river pier No.1, to the place of sinking. The sinking ·occurred within an hour after the departure from Hoboken, probably about 10 :15 A. lIf. The Martha had 'Jeen loaded with coal about 17 days before the twenty-sixth of June, and had been moored at Hoboken ever since, and had lain there, sometimes afloat, but much of the time resting on the mud at the bottom of the river or dock. She was an old boat and had been frequently repaired. Just before the last load of coal had been put upon her, she had sprung a leak by the starting of one end of a plank under the port bow, which was repaired by her owner, Michael Downs, while she was lying on the mud. Her bottom does not seem to have been examined during the time she was loaded with coal. She was in charge, during these 17 days, of a man by the name of Flaherty, whom the evidence shows to have been a worthless, faithless, false person. No faith can be
placed by the court in any statements made by him in the testimony which are contradicted by any other witness. The early part of the twenty-sixth June was a rainy day. A northeast wind was blowing at the rate, as shown by the reports of the Signal Service, of 20 miles an hour at 7 A. M., increasing to 24 miles at 11 A. M. The cautionary signal flag was not put up at the signal station in New York on that day until 10: 30 A. M., which was after the Snap and the Martha had crossed North river, and probably after the Martha had sunk in East river. The steam-tug Morris had been ordered to tow the Martha and another canal-boat, similarly loaded, over to Pierrepoint stores, Brooklyn, the afternoon before; but the boats could not then be got off the mud. The Morris waited till the morning of the 26th, and tried again to pull the boats off. She failed with the Martha, but succeeded in getting the other boat adrift, and proceeded with that one to its destination. The tug Snap, which shortly afterwards came to Hoboken, was then ordered by S. W. Morris, agent of the libelant for the cargo, to pull the Martha off, and tow her over to the Pierrepoint stores, Brooklyn. This was after the tide had begun to set in. The Snap pulled the Martha adrift, took her in tow, and proceeded with her across North river. The Martha, having been chartered, when her cargo was put on, by the agents of the West Virginia Central & Pittsburgh Railroad Company, one of the libelants, was under their orders. Michael Downs, her owner, says that the agent of this company had entire control of her, he himself having none, for the time. '1'he testimony is that when afloat with her load the sides of the Martha were 18 inches to two feet above the water, when taken in tow by the Snap; and that no intimation was given to the master of the Snap that she was leak. ing at her bottom, but that, on the contrary, positive assurances to the contrary were given repeatedly during the voyage. The Martha was taken on the starboard side of the tug, which was on the lee side, and the tug thus formed a partial breakwater for the Martha from a north-east wind. During the 15 or 20 minutes' time of crossing North river, the wind was blowing probably at the rate of 22 miles an hour. This was a "brisk" wind. It was not the "terrible storm" which the man Flaherty declared it to be. A "gale" blows at the rate of 40 to 60 miles an hour; a "storm" at the rate of 60 to 80 miles. There was neither storm nor gale nor high wind when these vessels crossed North river, but only a "brisk" wind. See Telegraphic Cipher, U. S. Signal Service, (6th Ed.) 38, 39, for classification of winds. Moreover, the wind was from the north.east; from which the North river was protected by Manhattan island, and the tall structures of the compactly built city of New York. It is incredible, therefore, that such "terrible" waves, as the man Flaherty speaks of, wereenCOUl1tered at all; or that they rose two feet up the sides of canal-boat and surmounted her combings; or that they swept over the decks, or made
a pool I)f water on the soft coal in the Martha three feet deep! Th e crew 0: the Snap all testify that the passage across North river was not rough; that no water at all washed over the combings of the canalboat; and that, after crossing the river, and while going down close in front of the piers on the New York side of the river, the water was smooth. It is obvious to me, therefore, that the Martha sunk from a leak in her bottom, and that she did not sink from high waves coming in over her decks during her passage across the Hudson. The probabilities would seem to be that this leak opened some time after she was taken in tow, and probably about the time she reached the New York side of North river. She had perceptibly begun to sink when she passed pier 13 of North river. The cargo was owned by, and the canal-boat was under charter to, the West Virginia Central & Pittsburgh Railroad Company. Both tug and canal-boat were under the orders of the agents of this company. One of these agents, S. W. Morris, who was well acquainted with the dangers of the navigation of North river in bad weather, ordered the tug Snap that morning to take the Martha in tow. The responsibility of the trip was thereby assumed by the libelant in the first of these suits. But, in point of fact, no undue risk was encountered. The navigation of the waters around New York city is not suspended whenever a "brisk" wind of 22 miles an hour sets in from the north· east. There was nothing in the weather to forbid the Snap to take the Martha on that morning across North river. The case is rather different with a north-west wind sweeping down the Hudson at the rate of 25 to 42 miles an hour, as to canal·boats on the open bay below. It has been held that it is fault in a tug to tow canal-boats in the open bay during such winds. But the Hudf;lon river itself island·locked from a north-east wind, and I am sure that it would require a "gale" or a "storm" from that point of the compass to imperil a canal-boat in crossing from Hoboken to the foot of Desbrosses street. I gather from the testimony that the Martha did not begin appreciably to take in water from her leak or leaks in the bottom until after she had crossed North river. Certainly, her own master, the man Flaherty, protested that she had no such leak until after she had rounded the Battery. He did not seem to know that she had been gradually sinking until about the time he became alarmed lest he might himself go down with her, after passing pier 1, East river. He had pumped with his tin pumps several times during the trip, and, though his vessel was gradually filling with water in the bottom, pronounced her dry, because bis pumps ha,d sucked. It was not until a short time before the sinking, when the master of the Snap insisted that he should try whether or not there was water in the hold with a rod, that he was confounded with the demonstration that there was much water down there, and that his pumps were worthless. No warning had come from him that his boat was leaking from the bot-
THE RHODE ISLAND.
tom, either at Hoboken or during any part of the trip up to the time of sinking. I cannot see that the Snap was in fault in this matter, and I will sign decrees dismissing both of the libels, with costs.
THE RHODE ISLAND. 1
(Dist1'ict (Joun, S. D. New York. June 10, 1885.'
STEAMER'S SWELL-DAMAGE OAUSED THEItEBy-LIABILITY.
Where the swell from a passing steamer I)V erwtelmed and sank a loaded canalboat lying at a bulk-head, and it appeared that the canal-boat was lying in a , proper place, well known to the pilot of the steamer, and also that the steamer was proceeding at a high rate of speed, lteld, that the steamer was liable for the damage.
In Admiralty. BROWN, J. On the twenty-sixth of December, 1883, the canal-boat Helen, loaded with coal, was lying along the bulk-head at the foot of Sixty-second street, East river, being the outside boat of four that lay along-side. Between 10 and. 11 o'clock in the fmenoon the large passenger steamer Rhode Island, coming down the East river, caused a. large swell, which broke over the canal-boat and filled her with water 80 that she sank in four minutes. This libel was filed to recove1· the damages. The principles of law applicable to the conflicting rights of large passenger steamers and of canal-boats about tho harbor, in all respects similar to the Helen, have been considered in repeated decisions of the circuit court, which are binding and conclusive upon me. The O. H. Northa,m, 13 Blatchf. 31; The Morrisania, Id. 512; The Daniel Drew, ld. 523,532. See, also, The ll1assachusetts, 10 Ben. 177; The Drew, 22 FED. REP. 853. In the case of The Batavia, 9 Moore, P. C. 286, III the privy council, it was said that if the steamer "was going at such a rate as made it dangerous to any craft, which she ought to [Jave seen, she had no right to go at that rate; at all events, she was bound to stop, if it was necessary to do so, in order to prevent damage being done by the swell to the craft that were in the river. She ought not to have made that Rwell in the river if she was aware that there was any vessel that might be damaged and put in jeopardy by her doing so." This canal-boat was an open boat, loaded so that her sides were about two feet out of water. She lay at a place long used for the discharge of such boats, as was well known to tae pilot of the Rhode
Hyland cf Zabriskie, for libelant. Miller, Peckham d; Dickson, for claimants.
by R. D. and Edward G. Benedict, Esqs" of the New York bar.
Island. She had been lying in the same position for three days awaiting her discharge. During this interval many steamers must have passed back and forth, at all times of the tide, several of them of equal size with the Rhode Island; and the Rhode Island during this interval probably passed there twice herself; and none of these had previously done any damage. On the day in question the Rhode Jsland was some five or six hours behind time, having been delayed (bring the night by fog. Her engineer says that her time from Hallett's Point to her pier in the North river, a distance of 9 or 10 miles, was made in 32 minutes, which would be her full speed of 18 miles per hour. The engineer and the captain testify, indeed, that her speed was reduced from 19 revolutions per minute, her full speed, to 15 revolutiona per minute, in passing this part of Blackwell's island, where the west "branch of the river is only from 800 to 900 feet wide. But the engineer, at least, speaks from his general habit only, and not from recollection of this occasion. Two other witnesses upon the shore testify that the steamer appeared at this time to be going at unusual speed. Considering that no previous damage had been done, the fair inference to be drawn from all the circumstances and the testimony is that the Rhode Island on this occasion was going at her full speed, which was an unusual and improper speed for this locality, and that this speed caused a greater swell than common, and thereby produced the accident. Upon this ground the libelant is entitled to recover. I A l'eference may be taken to compute the amount, if not agreed upon.
THE S. B.
THE PENNSYLVANIA. McLAltEN and others, Owners, etc.,
(Oircuit Oourt, E. D. Pe1insylvania. April 7, 1885.)
COLLlSJON-MID-OCEAN-MuTUAL FAULT-STEAMER AND SCIIOONER.
The steamer in this case being guilty of negligence in running at full speed on a dark and foggy night, and the schooner also being negligent in not havlUg on board and displaying a torch, held, that only half damages should be allowed, and that the costs should be apportioned.
Appeal in Admiralty. See S. C. 12 FED. REP. 914, and 15 FED. REP. 814. J. Wan'en Ooulston, for libelants. lII. P. Henry, for respondent. McKENNAN, J. On the night of July, 23, 1878, the schooner S. B. Hume was on a voyage from New Brunswick to Gloucester, England,