THE ISAAC H·.TILLYER 11. THE. T. J. SCHUYLER.
ruled. Liens of that sort will be recognized as of equal dignity with liens for like claims contracted in foreign ports. As above explained, such is the tendency of the later decisions on the subject, and this court will adopt that view.
THE T. J. SCHUYLER. I
(District Court, B. D. PennB1/l'f)ania. June 22, 1888.)
TOWAGE-NEGLIGENCE OF TUG-DEGREE OF CARE REQUIRED.
The Tillyer, a three-masted schooner. 140 feet and 85 feet Wide, Wall being towed up the Schuylkill river to Pine street wliarf, by the respondent. In order to get there it was necessary to pass through the draw of the B. & O. R. R. bridge. The channel required a change of course two or three hundredrards below the bridge. .The water was low at the time. and between tbe pIers was an obstruction. The tug passed so close to the eastward pier that the schooner, following upon, or nearly upon, her course, ran upon the ,. obstruction, and was damaged. The tug claImed that the accident would not have occurred had the schooner been properly handled. The schooner's master lisserted that the low state of the water prevented her obeying her wheel. Held, that the course of the channel, the state of the water and the obstruction called for more than ordinary care in passing throug-h the draw; and that the tug, having failed to exercise that degree of care, was responsible in damages. .
Flanders & Pugh, for libelant. Driver & Coulston, for respondent.
BUTLER, J. The Tillyer, a three-masted schooner, 140 feet long, &" feet wide, having a cargo of 869 tons of ice, anchored off the Schuylkill July 2, 1886, about 1 o'clock A. M., consigned to the Knickerbocker Ice COmpany, of this city. About 9 o'clock of the same morning she was taken in tow by the tug Schuyler, to be conveyed up the Schuylkill to Pine street wharf. She was towed astern by cross-hawsers of 25 to 30 fathoms length. . A few hundred yards below the Baltimore & Ohio niHroad bridge the channel requires a change of course, first to the east, and then to the west, before entering the draw of that bridge. While there is no serious difficulty in entering and passing through the draw with safety, the character of the channel, the set of the tide, and an obstruction between· the piers, call for more than the usual care ordinarily required in towing on this river. The obstruction is at the eastern side of the draw, and extends out six or seven feet from the pier, and is invisible. The tug passed this obstruction safely. How far westward of it she ran is uncertain. The respondent's witnesses disagree respecting it. The schooner approached the draw some feet eastward of the tug's course, encountered the obstruction, and sustained serious injury. The libelant charges the tug with 'negligently when the water was
·JBeported by C. Berkeley Taylor, Esq., ofthePb.iladelphia bar.
too lew, and entering the draw too far eastward. The respondent' charges the'schooner with negligence in failing to follow the t u g . ' , i: The last thus presented:may properly be considered first; for if it is determined against the respondent the others will beeon'te iunim.' portant. The conclusion in such case, that the respondent was in hlUit, cannot be avoided. Whether this fault consisted in startin:; at an improper state of the tide, or in failing to enter the draw further westward, or in something else, is immaterial., It :was her duty to know the channel, to be familiar with any obstruction threah'ning danger, to understand the tide at which ,the tow should start, and all other things necessary to it successful discharge of the duty which she undertook. The only obligation resting on the schooner was'to use her best endeavors' ti!foUowthetug. That her steering capacity was good is clearly shown, !loud ,riot questiorled. In view of the character of the channel, theuecessitydor repeated changes of COUl,:se, and: the state and set of the tide at below the bridge, it is quite plain that she could not constantly folthe of the tug. In westwl\.rdafter passing the rock, (described by the witnesses,) and thus approaching the draw, the tide, and 3,1so probably ,the effect of the tOWing hawsers, tended to thro'X her upon acourse eastward of the tug's. Did she, however, use her best endeavors \ to follow? Her: master was at the wheel. He testifies that he made all practicable efforts to keep upon the tug's course; that the only (Ircler he received after starting, was to starboard his wheel, when running eastwardly near the rock; that he had previously observed the tug's change westward, and had immediately starboarded, for the purpose of following, but that he was so near the bottom the schooner' would not obl:lY; that kept his wheel in this position until he reached the draw, but that Jin of the state of the water and set of the tide his course was, slightly eastward of the tug's. If this testimony is it. settles the question. .I see nothing to justify dispelieving it. It is true, the tug's master says the schooner approached the draw on a port wheel. is plain, however, that he simply inferred this from the course of the veest,ll. The .inference would not be unreasonable if the vessel was obediept tq her helm. The master of the schooner does not depend upon ferences for his statement. He knows the situation of his wheel; and he says it was starboarded, and that the vessel would not obey, t.ht,l inference stated by the tug's master should not cast any doubt upon his truthfulness or accuracy. The mate of the schooner, who was sta,., tioned forward for the purpose of transmitting orders from the tug, says the schooner's wheel was ported below the bridge (how far below he does not make clear) until she was brought upon. the tug's course, and then was "steadied." The wheel was to port properly, and necessarily fore passing the rock. It hardly seems probable, however, that this is the time to which the mate refers. If it is not, then his statement also UlUst be attributed to inference from the schooner's course. His business alone was. to transmit the tug's orders. The ,master of the tug says none were given except the one to starboard, before referred to. The master <)f the schooner saJ's he heard no oth.e:r order... cannot 'Pebelieved,
THE ISAACH. TILLYER V. THE T. J. SCHUYLER.
the mate gave an order to port, above the rock, and saw it obeyed. His master says he could see the tug's changes of course, and needed no orders. The mate says, as we have observed, that the last change was "to steady thewheel." The signification of this term is furnished by the master of the tug, who says it means "putting the wheel amidship," which, in this instance, would be to hold the schooner on the tug's course. I repeat, I feel no hesitation in accepting the testimony of the schooner's master respecting the state of the wheel. He alone knows, and there is nothing whatever in the testimony to justify belief that he is either mistaken or untruthful. Again, the respondent's testimony shows pretty plainly that the schooner followed as closely as could well be 'The of the tug says the schooner's course was some feet eastward of his. While this would not be very extraordinary, under the circumstances, Mr. Smith put the distance at three to four feet, and the engineer of the tug put it at eight. If Mr. Smith is" ,right, the schooner, f",Howed much more accurately, than "she beeu expected to do; if the engineer is correct, Bhefollowed quite could reallonablyhave been eitl;ler of these witnesses (Smith and the engineer) is as likely to be ;accurate as the master. While! it' is unnecessary to go further, I feel little hesita.tion inaaying that the accident resulted from starting at an improper time," and in failing to run the tug further westward. The testimony iSt'1nUSlll1.lly conflicting, even for a case in admiralty. But that the water was low is an imisistible inference from the fact that the schooner did not prop'erlyrespondto her wheel. That she did not, I have determined by accepting the testimony of her master; That the tug did not enter the draw as far to the westward as she should, seems plain from the respondent's own testimony. These witnesses say she entered in the center. In view of the obstruction on the east side, and the tendency of the current to set the schooner over in that direction; this, eVeD ,if true, was wrong. She could have gone considerably further west, with perfect safety in'that direction, and thus have avoided the danger which .her course encountered. I believe, however, she entered considembly east of the center. The ,master of the tug says his vessel pa.sse,d at least 20 feet 'westward of the eastern pier. It is not probable that he. has understated the distance. Allowing 7 feet for the obstrnqtion, this leaves a space of 13 feet between it and the tug, whichwa8' 16 feet in width. Supposing the schooner to have been exactly upon, the tug's course, and allowing for her greater width, (35 feet across} this WQuid reduce the space 9! feet, leaving but 3! behveen the schooner and the obstruction.. It is thus seen that with the tug passing where her master says shedid,and with the ·current setting eastward, the accident which the schooner .encountered was almost, if not quite, inevitable. The tegtimonyofSamuelSmith, "a licensed pilot," who wason the tug, t Ils a very different story, however, from the master's. It is true, herasaU the other. of respondent's witnesses, says they passed through the center Dfthe draw. interrogated, h6w6ver, he says it
was somethil)gmore than eight feet, he ,is sure, from the eastern pieri that it was from "five to six feet,"he thinJrs, from the obstruction. It is plain that if ,this witness' statement is accurate, the schooner, following exactly on the tug's course, would necessarily encounter the obstruction. A decree must be entered for the libelal)t.
THE MARY N. HOGAN. HOOPER
THE MARY N. HOGAN.
(Oircuit Oourt, E; D. NetlJ York. June 80, 1888.)
TOWAGB-STRANDING TOW-OBIBTltUOTION8 WELL' KNOWN TO NAVIGATOBIl.
. On additional evidence adducild in thi8 court, sho:wing that the rock upon which libelant's boat struck whefi in tow of the Mary N. Hogan was an obstruction well known to navigators, held, that the tug was liable for IUch stranding. Reversing 80 Fed. Rep. 927. .
In Admiralty. On appeal, from district court. GoodrWh, Deady &: ,Goodrich, for appellant. Cb.ryenter Mosher, for appellee. .
30 Fed. Rep. 927.
BLATCHFORD, Justice. In this case I find the following facts: On July 11,1885, about half-past 5 o'clock in the morning, the three-masted schooner Mabel Hooper, laden with coal, while being towed from Ho,boken, New Jersey, to Hart's island, by the steam-propeller Mary N. Hogan, for hire, was run aground below North Brother's island, and between Woolsey's dock and the Sunken MeadOW, on a part of a ledge of .rocks called the "Middle Ground." The propeller had the Hooper on her starboard side, and another loaded schooner on her port side. The Hooper was drawing 16l feet of water, and the m\lSter of the propeller had notice of that fact. The tide was two hours flood. The place where the Hooper struck was a part of a ledge of rocks' which was well known to navigators, and was and is about 300 yards long between the lines of three fathoms. From the gov(jrnment charts. and published sailing di, rections,:' existing for several years before this occurrence, it appeared that the buoy was so placed on the middle of the, ledge that, by giving it a berth of 100 yards to either the eastward or the westward, vessels would pass safely in from 12 to 15 fathoms at low water. The locality was well known to navigators to be dangerous water. The propeller was .not proceeding in accordance with such charts and sailing directions, but negligently took the Hooper too close to the buoy, and thus caused the accident. I t is not true; as alleged in the answer of the claimant, that the propeller was navigated with all due care, skill, and caution, and that the Hooper suddenly struck some obstacle on the bottom, unknown to navigation., The Hooper was seriously injured by the accident. On