FEDERAL REPORTER. THE EXCELSIOR. 1 BRYANT
(DiBtrict (Jourt, E. D. New York. December 81. 1887.)
COLLISION BETWEEN STEAMAl'm SAIL-FAILURE TO KEEP COURSE-LIGHTS.
On a.clear night a schooner, on a course of N. by E., bound into the port of New Y9rt, was run into by '" bound to 9n suit brought against the stea.mer for the damage, the eVIdence showed that the schooner had not held 'her course; tha.t there was no green light on 'her as she approached the steamer, and ,that schooner, w,h<> was on deck. had with him a white light, which was seen on the steamer, and gave rise to the belief that the schooner was going in, the same direction as the steamer. He/il,. that the steamer was without faultj: and that the libel should be dismissed. VesselsulI,vigating the waters below the New York ,Narrows are governed by the international rules of ,
YORK-BELOW T.ElIl NARROWS.
In Adnliralty. Libel for d$mages by collision. Libel by Ivanhoe C. Bryant against the Excelsior; to recover damages sustained' by-reason of a collision; of libelant's schooner :with the steamship alleged toh8.vebeen occasioned by the negligent navigationof ,,' , Goodrich, Deady & .Goodrich,' 'for libela.nt·.' " Olw,rla and R. D'1!enedict, for claimant. BENEDICT,J. After a careful examination 'oCthe testimony in this caSe to see how theJi1;>elant can recover. ,The pQints in controversy are: '(1) Whether the schooner, coming up the bay of New York, on a 'cqurse north by held her colirse: approaching the steamer,llsthe'libelant or whether she, changed her coUrse to westward, (2) whether the schooner's sldelightwasburiiing a$ sheapproach:ed the steainer;,(3) .whetherthe steamer · was in fault' fornot seeing she did; (4) whether the schooner displayed a white light .to the steamer a,s she approached; (5) whether the steamer stopped her speed 8.S800n 8.S: she should have done. : ' J ' : " ' . ' , . , !" U pohthe questi.on first ,stated; respecting a change of course on the part of the schooner, it seemstobe proven by thelookout, as well as by of. sar 'they apprdac,hed}he dlsplaymg. her red bght, until the ves'selswere'ulo'se together,and .t1l,at the green hght was only seen when the bow of the schooner passed'the, bow of tbesteamer, then aboqt to strike , on theschooqe;r's starboardsiM. This testimOny' the sChooJ;ler is In harmon? the' testimonY,froIU the steamer, and shows that, at the time or thecoUision, the' schooner was on a course from east to west across the 'tf'this be so, there must have been a change of Course'on the part of schooner.
by Eifwiard G. BenediCt, 'Esq·· of the N
As to the second of the .q'uestions above stated, viz., whether the schooner's green light was burning as she approached the steamer, it is to be noticed that, inasmuch as the witnesses from the schooner agree in saying that immediately after the collision the green light was not burning, the question presented by the libelant is, when did the light go out? There are, in the testimony, some curious facts about the schooner's lanterns, that in the minds of some would raise the question whether the lantern was in the starboard light-box at the time of the collision. The doubt on this point is, to some extent, confirmed by the fact that at least one witness from the steamer says that before the vessels separated he saw the starboard light-box to be without a lantern; and the further fact, of more significance, that one of the schooner's crew, well situated to know the fact, is unwilling to say that there was a green light-differing in this respect from others who say they saw the green light burning just before the collision. But considering the issue to be .that 'presented by the libelant, viz., when the green light went out, the weight of the testimony goes to show that there was no green .light burning on the schooner as she approached the steamer. As to the third question above stated, viz., whether the steamship saw the schooner as soon as was possible,-although the testimony of the witness Long has not passed unnoticed,-it seems that little need be said, inasmuch as want of lookout is not charged in the libel, and the libelant conceues in terms that "it is apparent that the steamer was warned of the proximity of the schooner, and knew of her presence when she was a mile away." Such being the fact, the collision cannot be attributed to want of lookout on the part of the steamer.. As to the fourth question stated, viz., whether the schooner as she prouched the steamer displayed a white light, it is. conceded that the mate of the schooner, who was at the top-gallant forecastle, overhauling the anchor and chains, had with him a lighted lantern. It is, at the same time, denied that this lantern was so placed as to be visible to the steamer. But numerous witnesses from the steamer say they saw the light, and the light was a matter of discussion on the steamer before this collision. In the face of the weight of testimony produced from the in regard to a white light seen on the' schooner as she approached, I see no way to decide that such a light was not exhibited by the schooner. The mate of the schooner, who was recalled to withdraw his previous statement that, previous. to the collision, he had a light at the forecastle, is contradicted by the pilot of the schooner, who agrees with the first statement of the mate that it was before the collision that the light was used forward. The exhibition of such a light on board the schooner would naturally mislead the steamer,and give rise to the belief that the vessel exhibiting it was going the same way as the steamer. Such was the belief of the master of the Rteamer, as he testified, and the existence of good ground forauch a belief absolves him from blame for not sooner stopping his In regard to the argument presented in the supplemental brief for the libelant, that the schooner, in exhibiting a white light, was complying
with the rule prescribed in section 4234 of the Revised Statutes,-an argument which abandons the contention that the mate's lantern was not visible,-I remark that, in my opinion, the waters below the New York Narrows are not to be deemed harbor waters, and so excepted from the effect of the international rules of 1885, by the second section of that act. As I construe the rules of 1885, vessels navigating those waters are governed by those rules. The remarks of Judge BROWN in the case of The Aurania, 29 Fed. Rep. 102, respecting the effect of the act of 1885, in the lower bay, are here in point. Moreover, in this instance, it is plain that the mate's lantern was not exhibited by him with a view of complying with the old rules, nor was it taken by the master of the steamer to be a light exhibited in compliance with those rules. It was exhibited by the mate through carelessness. That carelessness misled the steamer. and induced her to keep up her speed, which otherwise might have been slackened sooner than it
The.1ibelmust be dismissed, and with· costs.
THE ROCKY CITY. 1 THE ROCKY CITY". THREE HUNDRED AND FIFTY TONS OF IRON.
(District Court, E. D. Penn811Z'Dania. December 23, 1887.)
DEMURRAGE-DUTY 011' CONSIGNEE TO PROVIDE WHARF-NOTICE.
When the duty of providing a wharf, at which to unload, is upon the consignee, he is entitled to reasonable notice of the time when the vessel will be ready to unload, and, in the absence of such notice, demurrage will be allowed only after the lapse of a reasonable time after notice was actually given.
In Admiralty. John B. for libelant. Oharles GibbonB, Jr., for respondents.
BUTLER, J. An exception filed to the libel raised the question of respondents' obligation to provide a wharf. This question was decided adversely to the respondents. It need not be further considered. On the eleventh of May, the respondents, being informed of thelibl;llant's arrival, notified the libelant that he might discharge at any wharf he could obtain. He sought, unsuccessfully, for a wharf, and, on the fourteenth of May, notified respondents of the fact that he was then ready to unload cargo, and demanded a wharf at which to do it. Immediately the respondents replied that they had information a wharf might be had at Ellicott's. The libelant testifies that he went to Ellicott's, aud was told by the individual in charge that he could not have
lReported byC. Berkeley Taylor,
Esq., of the Philadelphia bar.
THE ROCKY CITY.
a berth there. From day to day he complained of the failure to provide a berth, and presented bills for demurrage. On the twentieth of May, the respondents informed him that he could go to pier 35. On inquiring there, the next day, he learned that the covering of that pier had fallen, and was offered 34 instead. This was Saturday. On the following Tuesday, the 24th, he took the vessel into 34. A few hours later, she was removed to 39, and unloaded without further delay. Nine days' demurrage is claimed. In any proper view of the case, the claim is too high. It does not appear that the respondents were informed of t.he particular time when libelant would probably be ready to unload, previously to the 15th, nor that he had been unable to find a wharf; Thelibelant could have known, 48 hours in advance, when he would need the wharf, or could have approximated the time very closely. He should not, therefore, have waited until the wharf was immediately needed. He knew that, in the crowded condition of the port at the time, such accOJ;n.modations could not instantly be obtained. It was therefore unreasonable to delay giving the notice and seek to hold the respondents liable to demurrage from that date. Furthermore, it does not appear that respondents were informed of libelant's failure to find a berth, as requested, until the 14th. While it was true he was not required to find a berth, yet he sought for one at respondents' request, and, it may be presumed, they knew this, and expected him to succeed. The demurrage should not, therefore, commence before Monday, the 16th. Again, I do not see any justification for delaying to move until the twenty-fourth of May, in pursuance of the notice dated four days earlier. The delay to move on the 20th was excusable; but late on that day he was informed that he might go into another berth, adjoining No. 35. While it was then too late to move, and he could not be expected to do so on the following day, which was Sunday, he could have moved on the next, the 23d. The circumstance that he was finally required to take 39 is immaterial. Had he gone on Monday, he would have obtained this berth, as he did the next day, if the one promised was unavailable. For the failure to move On Monday, another day should be deducted. Thus, it is seen that the actual delay, resulting from respondents' failure of duty, covered but six days. The respondents contend that eVen this time was lost through libelant's fault; that they procured a wharf at Ellicott's on the 14th, at which he should have unloaded. The latter allegation is denied; and the burden of proof respecting it is on the respondents. It is not necessary to decide whether the end of berth 60 was a fit place for the. sel. It is certain that she would have been subject to interruption there, as Mr. Gillingham (secretary of the board of wardens) says; and would also have been subject to some risk of injury. That other velilsels as large or larger may have chosen to suffer the disadvantage, and incur the risk of this berth, is immaterial. I do not, however, propose to decide the question. The only evidence that the berth was procured is found in the testimony of Mr. Ellicott's clerk, who says the libelant caDed, and was informed by Mr. Ellicott that he could have it,-the end
,of 60, or the ope,!Uong-side. ,On the other hand, the libelant, Mr. Stangebye, that he went, to the wharf on receiving respondents' notice, anq :told by theindiyidual incharge that ,he, could not have a berth there., Mr. Ellicott Was not called to sustain his clerk, pre,sumably becausA he could not doH. No motive is libelant's refusal of a proper wharf there, if he could ha,ve ,obtained it. He appeared anxious to unload, and get Under the Qircumstances, we, cannot <:redit the clerk's testimony against libelant's; and the burden of proof being on the respondents, this disposes of the ,question. I have llotoverlooked the,fact of libelant's interest, and theapPa.rent disinterestedness ofthEi clerk. The latter, however; may have heard inaccurately, or his memQry be at fault.' If Mr. Ellicott gave permission to enter, he doubtless knows it, and his testimony would have removed all doubt. I will" therefQre, allows six days' demurrage, according to the terms of the charter, and for the freight. The question whether demand was made for the latter before suit iSllOt important. ,It related to costs only. The disp9sition made of the claim for demurrage settles this.
THE HARRY BUSCHMAN.' REEHoRSr
(Di8triet Court,S. D. New
Ja.nuary 16, 1888.)
:1. NEGLIGENCE-SEAMEN-INJURYof the bark B.. as the vessel waS running 'before ON DUTy-HEAVY SEA. " Libelant, whlle at the wheel
S!:SEAMEN-lNJURIES To-RIGHT TO HOSPITAL TREAT14:mNT-DuTY TO PUT ON SBORE. , ' " , ," '
a gale of wind, was thrown over the wheel through the effect of 8. heavy sea striking the rUdder: and. his wrist being thereby broken. he bronght suit for the injury, No faulty construction of the wheel being proved. or negligence on the of the ship established; held, that the vessel was'not liable.
Libelapt was in)uredwhile on a voyage from New York to Spain. , He testified that, on atrlval in a port of'Spain. he inSisted upon hospital treatment there, Which themastet tefllsad.; The master testified that libelant had preferred to return with the vessel·to Now York. His injury was a pecullar one; the·resqltQf the skillful treatment he received at the LOJ;lg Island hospital was so excellent as to render it doqbtful whether it would have been better for him to have been left in a SpanIsh hospital. Held, on the eVidence, that libelant CQuid ,not recover. "
In Admiralty. Libel by Charles Peter tel' Reehorst to recover dam:ages for persori8.liiljuries received as a seaman on board the Harry Buschman. ' . Shepard k' Oilborne, for'libelant; . . Wing, Shqudy &: Putnam, for c1l!imants.
BROWN, J.'; The libelant shipped as an able seaman On the bark Harry Buschman fotavoyage from New'York to Spain; .'fhe ship Sailed from
IB.ePQi'tAld by,lUdwW G. Benedict, Esq., of the.New York bar.