BALL V. BDRWIND.1 LUOKENBACK
E.]). New York. May 27, 1886.)
CoLLISION-SWKEN AND,AJJANDONED WRECK-LIAJJILITY OF FORllER OWNElt.
The canal-boat Eureka No.5, owned by defendants, was sunk in NewY,ork harbor: through no fault of 'her owners, and was abandoned. Libelants' boats thlueafter were damaged, by, running upon the wreck. Held, on suit brought the former of the wreck. that tJ:ey were not liable, !'1though theyhll.d afterwards removed the wreck, on bemgnotified by the pllot commissioDers to do so.
N. Y. 1860. CR. 522. Chapter 522 of the Laws of New York of 1860 provides that, after notification
AND'WATER-COURSES-DUTY OF OWNER TO REMOVE WRECK.....LAWS
from the pilot commissioners to the former owner of a wreck to remove it, if the owner fails to do so, he shall-be liable to pay to the county any sum that the pilot commissioners may have expended in their removal of the wreck; but the law does not create a duty on the part of the owner to remove the wreck.
In Admiralty. Butler, Stillman re Hubbard, for libelants. Beebe re Wilcox, for defendants.
BENEDIOT, J. These actions are brought to recover from the defendants the damage caused to the vessels of the libelants by running upon the ,wreck of the, Eureka No.5, a vessel which, while owned ,by 'the defendants, and through no fault of theirs, had been Bunken in the harbor of New York, and thereupon abandoned by tllem. In,view of the adjudged cases, (King Watts, 2 Esp. 675; White v; Crisp, 10 Exch. 812; Brown v. Mallet,t, 5 C. B. 599; Hancock v. York, N. O. et B. R. 00.,10 C. B. 348;, Taylor v. Atlantic Mut. Ins. Co., 37 N. Y. 279; Winpenny v. Philadelphia, 65 Pa. St. 135; Philadelphia W. re B. R. 00. v. Philadelphia ct H. de G. St. Tow.boat 00.,23 How. 209,) the only ,question that seems open for discussion in this case is whether the statute of the state of New York (Laws 1860, c. 522) created a dut;yupon the part of the defendants to reo move the. Bunken canal.boat from the channel, which duty they failed to discharge, and thereby caused the injury of which libellJ.nt.complains. Upon this question my opinion is with the defendants. The defendants did not obstruct or interrupt the navigation of the port. for the boat was not sunk by any fault or neglect of theirs. When. through. fault of theirs, their boat was sunk, and thereby rendered of no value, they had the right to abandon the possession and contr.ol right they had exercised, and in this way they had their responsibility for the boat before the injury oom-
by R. D.&Wyllys Behedict, Esqs" of the' New York bar.
plained of occurred. It is indeed true that after the inJury com· plained of, and after thElY,'AAAbeen Jlotified by the board of pilot commissioners to remove the wreck, they did so, at the loss of some hundreds of dollars. :l3ut l,do, n,pt perceive how this action on their part, taken after the injury in question. can affect the question of their responsibility. at the time of, the inj ury sued for· If any duty at all on their part arose out of the statute in question, it was only remove within three days after being notified that the wiedkhadbeen adjudged by the pilot commissioners to constitute an obstruction to navigation. and that time 'had not elapsed when the .injury in occurred. every sUliken vessel is to be raised. nor does the statute say that the owner of any sunken' boat found to be an obstruction to navigation shall remove it. Allthe statute says is that wl;1en. after being notified by the pilot commissioners to reo move an obstruction, the owner fails to do so, he shall be liable to pay to county any sum .that the pilot commissioners may have expended in their removal of it. The libel must be dismissed, and with costs.
and another. 1
(DiBtrict Oourt, D. Oonnecticut. December 31, 1886.) ,
ADMIRALTY-NEW TRIAL-MoTION-FAOTS NOT OBIGmALLY PRESENTED.
A motion for Ii new trial will b'erefused if the conclusion originally reached is, after the presentation of new facts, still adhered to.
In Admiralty. Motion for Dew trial. E. L. Barney, for the motioD. Samuel Park, against the motion.
Reported 27 Fed. Rep. 113.
SHIPMAN, J. This is a motion for a new trial in the above-entitled cause. The facts were stated opinion of the court. 27 Fed. Rep. 113. The strong and vigorous argument of the counsel for the libelants ,endeavored to establish the position that on October 4, 1884, the voyage was not turned into uJ;ld did not become a whaling but that, by reason of the detention of 20 or 25 days in the ice in July, 1884, and the delay in September, on account of the services to the Isabella's crew, the proposed whaling voyagewasfrustrateu; and that the stop to whale for 20 days on the return from Cumberland inlet was a mere incident, 'which did not cause the freighting to .come to an end. This particular phase of the case was not presented upon the trial as vigorously as it was'upon the motion, but I cannot see that the conclusions to which T ()aiDe originally are incorrect.
by Theodore M. Etting. Esq.· of the Philadelphia bar.