PHIJ,ADELPHIA & R. R. CO. V. NEW ENGLAND TRANSP. CO.
the trip, there being a strong head wind, and the boat being heavily laden, old, and weak. Then he could have rt!illCl.ined with her during the night, ready to proceed the next morning to his destination, and to render any aid which changes in the wind or weather might require. He did neither, but left her at the end of the pier at Shady Side and towed another boat lying there back to New York. He assumed the consequences of such an abandonment, and the damage was caused by a change of wind on the next day. He undertook such risk and must be held responsible, as I find no proof which shows that the canal-boat in any way contributed to the damages. There has been some testimony already in regard to the extent of. the injury, growing out of the attempts of the parties to compromise the case. The boat was repaired after the accident, and there is some ground for believing that an attempt was made to introduce into the claim expenses for repairing which did not arise from the injury caused by the ice. The commissioner will be careful not to include in his report any expenditures which were not fairly made for the reparation of the injury complained of.
& R. R. Co. v.
NEW ENGLAND TRANSP.
(Distriot Court, S. D. New York. July 1,1885.)
TUG AND Tow-NoTICE OF DANGER-DUTY TO SEEK HARBOR-COAL-BoATllPUMPS OUT OF ORDER.
Respondent's tug, having several coal-boats in tow, on Long Island sound, when off Norwalk harbor, was notified by the captain of outside boat, No. 99, that his boat could not stand an approaching thunder shower, and to go into Norwalk harbor. The tug kept on, and No. 99 was sunk in the shower that followed. Held, that after such notice, and the boat being old, and but 10 inches out of water, reasonable care and prudence in the tul\' required her to seek refuge from the coming storm, and that she was in fault in not availing herself of the harbor near at hand. But it further appearing that the boat nearly outlived the storm, and that her pumps were choked up and not available, and that she mIght probably have survived had the pumps been in order, held, that she should recover but half her damages.
In Admiralty. Benedict, Taft J: Benedict, for libelant. Hill, Wing J: 'Shoudy, for respondent. BROWN, J. On the twenty-eighth of July, 1882, one of the libel· ant's boats, No. 99, loaded with coal, was proceeding, in company with other boats, all in tow of the defendant's tug, on a trip from Port Morris to New Haven. The day had been fair, mild, and promising, until about half past two, when there was a change of wind to the southward, and evidences of a coming thunder storm. At about that time, when the tow was opposite, or nearly opposite, the east entrance of Norwalk harbor, the captain of No. 99 asked the pilot of the t'lg
to go into Norwalk harbor, telling him that he thought a storm was coming, and that his boat could not stand it, and would be lost if the storm should strike them. The tug continued on with the tow. A thunder shower, with a strong wind and heavy sea, fell upon them at about 3: 30; and in an hour afterwards No. 99 filled and sank. The evidence shows that No. 99 was an outside boat on the starboard side, exposed to the wind and sea; that she was loaded to within 10 inches of hel' rail; was 15 years old; that her hatches were not tight; and when she took in water, that her pumps were choked, and could not be worked. The pilot of the tug does not fully deny these statements of the captain of No. 99; and it appears that when the storm broke upon them they were about four and one·half miles to the eastward of the east passage to Norwalk. This seems to me to confirm the captain's statements, that when he first gave notice to the pilot that a storm was approaching, and that his boat could not bear it, the tug was not far from Norwalk harbor, and that it was a subsequent conversation on the same subject heard by one of the other captains, when it was stated that they were then about as near to Bridgeport harbor as to Norwalk. The defects of the libelant's boat, and her inability to cope with rough weather, were, therefore, not only obvious, but express notice of these facts was bl'ought to the attention of the pilot of the tug with reference to the evident approach of the coming thunder storm. Ordinary prudence and care for the safety of the boats com· mitted to his charge required him to seek any proper place of shelter available. I think the weight of evidence is clearly to the effect that such shelter might easily have been had through the east passage to Norwalk. In disregarding this notice, and not availing himself of the means of safety at hand, the pilot of the tug must be held in fault. The M. J. Cunningham, 18 FED. REP. 178 ; The Niagara, 20 FED. REP. 152. 2. The evidence shows that complaint had previously been made by the defendant of the unseaworthy condition of some of the libel· ant's boats. No. 99 was at this time 15 years old. Not only were her hatches imperfect, but when water began to be taken in, her pumps were found to be so choked up as to be useless. Notwith. standing this, it was an hour after the storm struck them before she sank. All the other boats of the tow were uninjured, and the storm did not last long after No. 99 sank. 'The choking of the pumps does not appear from the evidence to have arisen from any excusable acci· dent on the trip. Had the pumps been in serviceable condition, it seems probable that the boat would have been kept afloat. Knowledge of the uselessness of the pumps was not communicated to the pilot of the tug, and could not be presumed by him. Upon this ground No. 99 must also be held chargeable with fault contributing to the loss. The Oswego, 8 Ben. 129. The libelant is entitled to reo cover, therefore, but half his damages, with costs.
THE CEPHEUS. 1
(Dutrict Oourt, E. D. New York. March 10, 1885.)
TUG AND TOW-SALVAGE AWARD RECOVERABLE AS DAMAGES IN COLLISION.
Several bOllts were being towed along-side a tug, when the tug was run into by a steam-boat coming up from behind, and some of the towing lines were broken by the collision, and others were cast off by direction of the master of the tug, who thought the tug was sinking, and the boats went adrifc towards the shore, and were in danger of destruction. They were saved by other tugs, for whose services salvage was awarded against them by this court. Held, that. under all the circumstances, the peril in which the boats were placed was the natural and immediate result of the wrongful act of the steam-boat in running into the tug, and the owners of the boats were entitled to recover from the steam-boat the amounts they had paid for the salvage.
In Admiralty. Carpenter et Mosher and Jas. K. Hill. Wing <t Shoudy, for libelants. W. S. MacFarlane, for the Cepheus. BENEDICT, J. These actions were tried together. They are brought against the Cepheus,-the first, to recover the damages to the barge Manhattan No. 12; the second, to recover for damages to the chunker No. 2,104; the third, for damages to the canal-boat Two Brothers;these damages being in each case asserted to have been the result of a. collision between the. steam-boat Cepheus and the tow of which these boats formed a part. It is proved and not denied that while the boats in question were being towed along-side the tug James Me- " Mahon, near Hell Gate, the steam·boat Cepheus, coming up from behind, ran into the James McMahon. None of the boats in the libels mentioned were injured by direct contact with the Cepheus, but some of the towing lines were broken by the collision, others were cast off by direction of the master of the James McMahon immediately after the blow, upon the cry of his engineer that his boat was sinking, and the tow thus bwken up. The tide being strong, as soon as the lines were cast off, the boats in the libels mentioned began to drift towards the shore, and were put in danger of destruction. They were saved by the exertions of other tugs, for which salvage has been awarded against them. The only question in this case is whether the peril in which the boats were put after the tow broke up was the natural and immedi;. ate result of the act of the Cepheus in running into the James McMahon, or whether it is to be attributed to unnecessary action on the part of the master of the James McMahon in casting off the lines, and to the neglect of the master of the James McMahon to pick up his boats when he might, after he discovered that his boat was not really injured. Upon the whole, considering the locality, the nature of the blow given, and its effects, I am of the opinion that all the damages in
Reported by R. D. & Wyllys Benedict, of the New York bar.