THE JOHN S. SMITH.l MAYO t1. THE JOHN S. SMITH.
(Dz8zrict Oourt, E. D. New York.
April 6, 1886.)
CoLLteroN-TRtPPINe ANCHOR-DRtFT-NEGLIGENCE-NoTICE 011' INTENTION '1'0 DRIFT.
When the schooner W. tripped her anchor knowing that, as the wind and tide then were, she would drift rapidly, and across the course of vessels coming up the bay; and, having done so, drifted and collided with a tug, having the schooner A. In tow, which was within hailing distance when the anchor was tripped; and nothing showed that the tug had notice beforehand of the schooner's intention to drift, or could have avoided her after the drift had begun: lul(}" that the 8chooner W. was liable for the collision.
[n Admiralty. Wilcox, Adams 4 Macklin, for libelant, Elisha Mayo. Edward D. McCarthy, for the tug. Butler, Stillman Hubbard, for the schooner Frank Atwood, in tow of the tog.
BENEDICT, J. Situated as' the' schooner Phebe J. Woodruff was, and with the wind and tide as it was, it was a fault in the Woodruff to trip her anchor when she did. She knew that she would drift rapidly the momAnt her anchor broke ground, and that her drift would carry her across the course of vessels coming up the bay. It was her duty, before taking such a drift, to be sure that it would not endanger any vessel near. If she knew of the presence of the tug or tow when she tripped, it was a fault not to hold on by her anchor till the tow, then within hailing distance, had passed. If she was ignorant of the presence of the tug and tow, that ignorance was a fault. Whether the tug was not in fault is the remaining question. I do not think that the tug was chargeable with the knowledge of the schooner's intention to trip her anchor when she did. The spanker gave no such notice. It had been upfor some hours. The presence of the crew of the Woodruff at the windlass gave no such notice. They had been at work there for some time. The act of drifting first gave notice of the schooner's intention to drift, and the act, was observed by the tug as soon as it commenced. Want of look.ont on the tug, therefore, was no cause of the accident. Neither was it a fault on the part of the tug to keep going, notwithstanding the drift of the schooner. To stop would have been fatal. Her only way was to port or starboard. She did thl3 former, and I am not satisfied that it was an error so to do. But if it was an error, it was no fault. A mist'ake OIl the part 'of the tug in adopting a method of escape from an imminent peril, caused by the change of the schooner
by R. D. & Wyllys Benedict, Esqs., olthe New York bar.
THE CITY OF OHEs'rER.
from a vessel at anchor to a vessel drifting rapidly athwart her course, should not, in my opinion, be imputed to her as a. fault. The libel must be dismissed, with costs.
THE CITY OF CHESTER.
(Dunce Oourt, 8. D. New York.
CoLLISTON-DAMAGES-REPAIRS IN EXCESS-SURVEY.
When repairs of a general character, beyond the injuries inflicted by a col· lision, Rre made at the same time, and without separation of the items of the work as the repairs progress, the bills of repairs presented are no criterion of the damages, and the items of repairs claimed will be closely scrutinized to prevent exaggeration. The estimate of competent surveyors made immedi/Ltelyafter the injury may be used in evidence. The commissioner in this case having, upon a careful investigation, allowed much less than the estimate of the surveyors, the report was confirmed; though the repairs, as made, adopted different methods from those recommended by the surveyors, by allowing the expense of strengthening pieces, and disallowing the surveyors' estimate of permanent depreciation.
In Admiralty. E. D. McCarthy, for libelant. Wilcox, Adams &; Macklin, for claimants. BROWN, J. Notwithstanding the skillful and ingenious argument of counsel in behalf of the exceptions in the above case, I am satisfied, upon a careful consideration of the testimony, that no injustice is done to the claimants by the commissioner's report. 'I'he court, so far as in its power, will take equal care to prevent the exaggeration of claims, and to afford full reparation for the actual injury. Where repairing is delayed,and the repairs finally made are more extensive than the injury calls for, the closest scrutiny in separating the charges made is obligatory. The repairs are not in any case the necessary and sole criterion of the damages. The actual damage properly proved may be recovered though the boat never be repaired; or the repairs may be partial only, and recovery may be had for the partial repair, with an allowance for permanent depreciation. One of the chief objections in this case is to the expense attendant on putting in strengthening timbers. This mode of repair was adopted instead of that recommended upon the survey made shortly after the accident. But the survey, which was made by competent experts, while providing for certain repairs, gave a further estimated allowance of $2,000 for permanent damage. This last sum alone is much in excess of all the damage allowed by the commissioner. He has allowed the expense of the strengthening pieces in the place of certain other recommendations in the survey, but disallows all claims of permanent de-