but it is more important for the ferry-boats in the East river to make their time, and most important for both, that no private understanding of their relative importance be allowed to create exceptions as to the rules of navigation established by law; My conclusion,.therefore, is that the collision in question was caused solely by. the fault of the Pequot. - :The libel of the Providence & Stonington Steam-Ship Company against the Alaska is therefore dismissed, with costs, and in the action of the Brooklyn & New York Ferry Company against the Pequot there must be a decree for the libelant, with a reference to ascertain the amount of the damages.
THE· ALFREDO. I THE
March 24, 1887.)
'(QiBtrriet(JO'Uf't,E: D. New York.
VESSELS;-VESBE!'HOVE To-Foa-SIGliALs. vessel,when hove to 111 a fog, should ring a bell, and not blow a -, . .'j .',
In Admiralty. ' Goodrich, Deady B'IJiler, Stillman
for Spraker and the Laura Belle. Hubbard, for Dodero and the
BENEDICT, J. The deoislonof these actions depends upon the questidn' whether tV collision' between, the bark Alfredo and the schooner Laura Belle'; which-occurred on the high seas, was caused by the fault of the bil.rk,.or<the fault of the SChooner, or by the fault of both, or of neither oftha-vessels." The collision happened in a dense fog. The starboard tack, making some three bark waseailing close hauled 011 miles an hour: The schooher was have to, with wheel lashed to starboard, the jib fast to the mast and aback, her mainsail trimmed to windward, and her foresail down. She was powerless to make any change of position. Aneffortw'as made in behalf(jf the schooner by calling the master a second time, at the last moment, to show the schooner to' be moving, but the effort failed. Five Or six of the schoonet's prove beyond the possibility of dispute that the schooner was-not going ahead. Her libel describes her as "laid to, waiting for an
by Edward G. Benedict, Esq., of the New York bar.
opportunity to fish.'· Her captain sa.ys: "We were not bound any. where; wewere already on the ground.'" "The vessel was hove to, making no headway at all." Being thus situated"she claims she was sounding a hom, two toots at a time, and thus the question'ispresented whether the schooner was complying with the law and was under way within the meaning of the international regulations of 1885. These reguiations, in article 12, require sailing vessels to be provided with an efficient foghorn, to be sounded by a bellows or other mechanical means, and also with an efficient bell; and, when under way, to sound the fog-horn at intervals of not more than two minutes,-one blast if on the starboard tack, two blasts if on the port tack, and three blasts with the wind abeam. These requirernents seem to me intended for a. vessel moving close.-hauled or free, not for a vessel without motion and powerless to change her position. In Marsden on Collisions, 348, it is stated without qualification that "a ship is under way within the meaning of this article, when she is not fast to the shore or to moorings, or held by her anchor." But this statement does not seem to be supported by the authorities cited. In the case of the collision between the steam-ship Pennsylvania and the bark Mary Noop, which collision was before the judicial committee of the privy council (3 Mar. Law Cas. 477,) and also before the supreme court of the UnitedStl1tes, (19 Wall. 125,) the obligation to sound a foghorn was held to attach to the sailing vessel, by 'reason of the fact there no sails aback, and was going through the water at proved that about a mile an hour. Sh(' was, as the supreme court says, constantly changing her position. Judging by the test applied in that case, the Laura Belle, although not fast to the shore, or to moorings, or held by an anchor, was not under way within the meaning of article 12 of the -international regulations of.1885 .. Here t11,e ,s.chooner had sails aback and was not moving. Sht;) is described by her erew to be "dead in the water." "Sails not drawing at all." The it seems to _me, are faulty indeed if they required thisschooner,pQwedess as she wsa,and unable to do anything whatever in time to avoid the bark, to give to the approaching bark the same signal that she would give if moving .and able to make some effort to .get out of the bark's way. As I read the rules, in the light of the decision of the supreme court in the case of Ths Pennaylvania, they required this schooner to be ringing a bell, and forbid her to be sounding a horn. The next question is whether this diso\)edience of the law by the schooner contributed to the collision that ensued. Here the law declared in'1the case of The'Penn8ylvania, already cited, is applicable, and it must be presumed that the failure to ring· a bell, and sounding a horn instead, was "contributing cause of the disaster." This presumption is conclusivein a case-like this where nothing appears to overthrow the presumption,. and compels a decision that the damages arising from the collision were caused by the fault of the schooner. Was the bark guilty of any fault which renders her also liable? I find none. It is insisted by the schooner that the bark had no proper
lookout, but the proofis that she had two lookouts, and that the schooner was seen as soon as possible. It is also said that the. bark sounded no horn, but the schooner's own witnesses prove that they heard her horn. And, lastly, it is said that the bark was in fault for not starboarding her helm. The bark did not starboard, but why should she? She was close-hauled on the starboard tack. She was notified by the schooner's horn that a vessel was approaching close-hauled on the port tack. The bark's duty, therefore, was to keep her course, and to assume that the schooner would keep out of her way. Certainly she was not bound to starboard. I find therefore no fault committed by the bark. The result is that any damage sustained by the bark may be recovered in her action against the Laura Belle, while the libel of the Laura Belle against the bark must be dismissed. Costs in each case to the successful party.
THE W. E. CHENEY. CAnPENTER v. THE CITY
AUGUSTA and another.
(Diatrict Court, B. D. New York. March 19, 1887.)
1. COLLISION-WHARVES AND SLIPs-BURDEN OF PROOF.
Where a 'V6$llel, .moving out of the Illip, injures another moored to the wharf, the burden of proof is upon the former to show that she was without fault. SAME-CA:SE STAtED-OLD VESSEL-SUSPIOIOUS CmCUMSTANCES-HALF DAMAGES.
While the steamer C. of A. was being towed out of the slip, the libelant's sloop, lying' along-the wharf, was injured by being jammed in conseque\lce, as was alleged, of tiJie steamer's bowline not being cast off in time. Held, on . a conflictofevidell;ce. that the sloop was jammed by the steamer; but the sloop being old, and previous notice given to the sloop to move away, and other circtulIstallces existing not satisfactorily explained, half damages only' were allowed. .
In Admiralty·. Hyland &- ZabriBkie, for libelant. John E. Ward,for the City of Augusta. BROWN, J. As the libelant's sloop Frances was lying along the northerly side of pier 35, taking in It cargo of iron, she was jammed somewhat, as I must find upon the evidence, by the steamer City of Augusta, as the latter was being towed out of the slip at high water, to be taken to the dry.dock. The great confidence with which most of the wHnesses for the City of Augusta testified that this was before dinner, when the time of tide shows that it must have been several hours after, detracts not a little from the confidence to be placed in the details of theirtes-