lng, and that this, under the regulations of the cU,stom-house, is narily from 8 to 10 hours per day only. The usual stipulations in charters on this subject are made in either of three forms, viz.· by running days, by working days, or by working hours. The respondents contend that the latter form excludes holidals, the ordinary hours of rest, bad weather that disables from working, and any general disability, such as strikes. Only one witness was examined on each side in regard to the meaning of this phrase. The libelants' contention would give no effect to the word "working," and would be equivalent to striking that word out of the clause. This is not admissible in the construction of written instruments. In the absence of special proof of some different meaning, the words of the contract must be construed in their ordinary sense. Twenty-four working hours in this view would mean thpse hours during which work was ordinarily done about the business to which the clause relates. If, for instance, it was the usual practice in this port to work day and night consecutively, during good weather, the words would be construed to .mean hours during such weather. Holidays would be admitted or exclUded, according as by usage they were deemed, or were not deemed, a ship's working hours in port. The burden of proof is upon the libelants to establish the fact that "working hours" in this port means consecutive hours day and night; because, without that construction, the damage in this case, and the repairs on the ship, did not prevent the working of the steamer for so many as 24 working hours. I cannot find that the libelants have established this by any preponderance of evidence, and I am thereJore constrained to dismiss the libel on this ground. without considering the effect of the subsequent cancellation ' of the charter.
THE BELLE. 1 THE NORWICH. CLARK 'V. THE BELLE AND THE NORWICH.
(District Oourt, B. D. New York. March 24, 1888.)
CoLLISION-BETWEEN Tows-NARROW CHANNEL-UPPER HUDSON NAVIGATION·
.A, collision occurred at night in the upper Hudson, a little below Four-Mile PoUlt, some 80 miles below Albany. where a shoal divides the river into two channels, the westerly channel ordinarily used by tows. At the lower end, where the channels meet, the ebb-tide, coming out of the easterly channel, causes the current to set. towards the west shore. The steam-boat B. and her tow were approaching the entrance to the west channel, going up stream, and were moving so slowly that the set of the ebb-tide towards the west shore swung the tail of her tow somewhat to the westward. The steam-·boat N. and her tow came down the west channel, passing within 50 to 75 feet of the B., and the N. collided with libelant's canal-boat. on the port side of the end of the B. 's tow. Both steam-boats saw and signaled to each other at a considerby Edward G. Benedict. Esq., of the New York bar.
. 1 Reported
· .; 'abie distaiiqe; Held, that the B.·;perceiving: the delieeridllrg fl6tiIla, waaih ': lfault for occupying with her tow any portiol\ of :the ,,!estern side of knowing thewestwa.rd set of the cu.rrent,and the consequent probableswmg of the B:a ,tow to the west, was 1,11 fault for attempting to pass so near tothe B., such approach not being absolutely necessary. ,Both steam-b9&ts were therefqrQ held ill fault. '
for dafuages. Zabrwkie,for libelant. , ,()wen Jc for the Belle.'" ,', ' B. for the Norwich.
BROWN, J.Ata:bout 1 o'clock M. of the night of August 14, while the libelant's canal-boat Governor Dix was up the North in 'tow of the steam-tug Belle, and being river with a. fleet of the boat on the, port side in the third tier from the end of the tow, she, wl;i,srun into by the steamer Norwich, which was coming down the river, and received damages for which this suit was brought., The libelant',s boat was without fault. 'rhe litigation is behreenthe Belle and Norwich. The collision was about 30 miles below Albany, a little above Four-Mile Point, on the, western shore. Ahout 1,500 feet above the lighthouse, which is situated on the point, is It buoy ,placed at the lower end of the flats known as the "Middle Ground," whicndivides the river into two channels, called the easterly and' westerly channels. The deeper and the better water il3 in the westerly channel, which is the generally used by'tows. ' Immediately above the point the west channel and shore from the easterly chanbend somewhat to the westward, and nel causes the current to set somewhat towards the point and the shore for several hundred yards to the southward. This naturally inclines the ends of tows somewhat towards the westerly shore, unless sufficient precautions are taken against it. Owing to this westerly set of the ebb-tide, and the narrowness of the entrance to the westerly channel, it is unsafe for tugs with tows to meet and attempt; to pass each other at the southerly entrance of the westerly channel. The usage, when they are likely to meet at that place on the ebb-tide, is for the up-going tug either to wait at a little distancl'l below the point, or keep so far, to the eastward below the buoy as not to interfere with the down-coming tug and tow, which on the ellb have the right of way. The evidence shows that the Belle and Norwich saw and whistled to each other at abundant distance; passthat the Belle was proceeding quite slowly, but did not ,ing t4e,p'oint, making about a mile an hour byland, (while her fires were being till she was within 100 or 200 feet of the buoy, where the Norwich passed her; and that she kept on with, out stopping at aU, notatthe time knowing of the eoll,ision. , The weight of the evidence is to the effect that the. Belle's tow was swung considera'bly to the westward, as it would naturally be from the effects of the current while the Belle was running so slowly,; ahd that the Norwich, 'which passed the Belle some 50 to 75 feet off" ran into .the end of the Belle's tow in consequence of its swing to the westward, instead of keeping in a straight line astern. The witnesses Of the Belle were not in a.
position to see tawas well as the other witnesses; and the master in fact:;;a:id that he could not distinguish its exact position. From the Brevyeryoinpany's dock upwards for some 2,300 feet to the buoy. the. tow had. been. subject to the westward set of the tide, such as ,it was, more or less, during a period of from 20 to 25 minutes. The whole length of the tug an-d tow was about 1,200 feet, and at the very slow speed of a mile an hour, some effect from the westward set of the current This accords with the westward bend of the tail of the was tawas testified. to by the Norwich's witnesses. Captain Oliver of the Belle, though aman,oflargeexperience, did not remember to have met a descending. tow before at that point while going at so slow a rate of speed. .Some o[the witnesses for the Belle testify to her coming up to a point either directly south of the buoy, or a Httle to tqe eastward of it. The pilot oft1w :P<1>ntiac, the helper of the Belle, and on her port side.· says that when the .;Norwich passed the buoy, she was about 200 feet above the Belle, a little on her starboard bow; and that they usually go about 150 or 200 feet away from the buoy in going up on the ebb-tide. This testimony,. together with the fact that the Belle did not stop in her course, and extreme difficulty of passing the bllOy with a tow, if she had COme up directly south of it, within the space of 100 or 200 feet, as her witnesses stated, lead me to the conclusion that she was not all to the eastward of the line of the buoy, but probably a little to the westwal'd of it. In this position, with so slow a speed, and her tow swinging more or less to the I do not think the navigation of the Belle can be justified .as safe. or. prudent, having respect to descending tows in the night-time in thl\t narrow channel. There was nothing to prevent her stopping either. below the Brewer's Company's dock, or considerably further to the eastward, in mid-river, before reaching the buoy. Knowing that the tug and tow were coming down, she was bound to give them. plenty of.room,where, as in this case, there was nothing to prevent her doing so. Considering the heavy losses that are often sustained from collisions· through the calculation of narrow chances, no rule should be upheld by the court that does not enforce the obligations of prudentand safe navigation, as between different alternatives. I feel bound, therefore, in the of safe navigation, to hold, considering the. needs of a descendipg tow in the night-titne in that narrow passage, and the liability of the pescending tow to swing somewhat to the westward while passing Four-Mile Point, that the Belle should beheld to blame for occupyingwith her bending tow any portion of what properly belongs to that channel.' .. . In the case of Lartan v. The Oonqueror. Mar. Reg. July28, 1886, which was a case of collision very near the same point, the descending tow was held liable because she did not keep to the westward side of the channel; the ascending boat, the Conqueror, having grounded upon the middle ground. The tide in that case appears to have been the first of the ebb, but no mention was made of its westward set. That, doubtless, has an important bearing upon the proper course of the descending tug in refert'nce to the management of her tow. 'rhe chart of the region, how-
ever, shows that the trend of the westerly shore .to the westward above Four-Mile Point is but slight, and the bend at the point is a very gentle one. It cannot be absoh:ttely necessary, therefore, for a descending tug to occupy the whole channel-way, and from the evidence in the cause it would appea,r that different pilots of equal experience differ somewhat in their customary course in coming down. The usual course of the Norwich was to draw gradually to the eastward for some time before reaching the buoy. That she did so in this case, so as to pass very near the QUoy, is shown by the fact that she passed within 50 feet of the Belle. r cannot find, upon the evidence and an inspection of the chart, that so easterly a course was necessary. Having seen the Belle with her tow long before, and knowing that the Belle, instead of stopping, was continuing her approach with her tow, and seeing their positions as they drew near eachother, I think the Norwich was bound not to go so far to eastward, nor so near to the Belle and her tow, as she'did. As the ebbtide sets somewhat to the westward, she was bound to know that the tail of the Belle's tow must be swinging somewhat to the westward of the Belle, so as to render so near an approach to the Belle dangerous to the tow below. This near approach not being absolutely necessary, as I must hold, to her own safety, was therefore imprudent, and unjustifiable. There is reference in the testimony to a part of the Norwich's tow rubbing some boats at the docks on the western shore; but it also appears that one of the boats in her tow, there being only four abreast, rubbed along the leeward tier of the Belle's tow. As this must have been buta little only to the westward' of the line of the buoy, I am inclined to think that the rubbing of some of the' boats along the dock on' the western side took place afterwards, and as the result of some disarrangement of her tow after the Norwich had stopped. The circumstances are so obscurely stated that r camiot give this e,"idence any controlling weight. Had the Norwich approached more slowly towards the Belle, whose dangerous position she saw; had she gone, as she might have gone, further to the westward, I think her own tow would have come down safely and straight in a line with the current; and that she would have passed safely and without collision, astern of.thetow of the Belle. No further reference as to damages being desired, the damages are found to be $367.68, with interest from September 22d. This includes demurrage for nine days at the rate of $10 per day; which is a reasonable amount for the detention of the boat with the several men and horses attached. For that sum, with interest and costs, the libelant is entitled to a decree against both vessels in the usual form.