THE -I. 'M. NORTH.
8. D. NtIUJ York. December,S1,1888.j
The tug N., in landin¥, a tow of nine canal-hoats at the dock at Port Ewen. North river, through mIscalculation and the kinking of the tow upon a slack canal-boat upon the corner of a gap in the dock. , hawser, ran the , bringing the 'boat to a dead stand, causing her damage. Though the boat , was old, and not very strong about the bows, the blow being much more vio, :lent ,tban, the brdlnary contacts 'of navigation, held. that she was not unseaworthy, nor weak 8S to require notice of weakness to the tug; that not,ice, if given. could uot nave affected her handling; and 'that she was therefore entitled to full damages. " ' ,
In Admiralty. Libel fol' damages. Libel 'by ,Kate 'O'Neil against the tug North for negligence in running a canal-boat against the cornel' of the dock at Port Ewen, on the North river, when landing e: tow of ' Hyland Zabriskie, for , 'Robert D. Ben'edict, for,claimants.: " BROWN,J. ' I am satisfied' that,the libelant's witnesses are mistaken in estimateofthespeedofthe,tow when near the dock at Port Ewen. Considering $11 the the most probable cause of the collision Of the libelant's boat with the corner of the gap in the dock is miscalculation on. the part of the capta.in'Of the tug in approllOhing too near the lilie of 'thedock,having refereilceto the fHct that there were four boats in thesecolldtieroPthe;tow, while there were only three boats in the front tier, and:that the second tier; with the libelant's boat on the port side, more than 'the captaIn of the tug had taken account of. The libelant's testimony 'seems to Confirm that of the, respondents, that the hawser was slack, arid thattherefdresome kinking of the tow, more or less,was unavoidable. Nothing is shown, however, iIi the circumstances, of an unusual or unexpectedcharactl'r. The liability of the tow to sheer and' kink either way was' fully known. 'The tug was boutid, therefore, to make all necessary allowance for this liability in approaching the dock ani!: slack hawserj and, Rsthe was 110t in fault, the responsibility'forthe' bl6w rests on the tug. ' , ' The canal-boilt was 14 years old. The evidence; shows clearly that the wood-work about her bow was not very strong. 'Theclaimants lind some of their testify, that she was not fit for the ordinary contactsofnRvigatioI1j others ortheir witnesses hesitate on that point. I am not entirely satisfied in that respectjan'd:, looking at the other circumstances,'! give the!libehmtthe benefi:t of the doubtj for the blow mlist have' been 'a very trying'one, from its place n'ear the sten') of the square-headed boat. Striking the corner of the gap in that way, she could not turn to the right or left, but was necessarily brought to a dead stop. The lines of the other boats were broken; and with nearly 200 tons of coal on board, and other boats pushing up from behind, even
JnllY p,ot hp.ve beeu Ill,ore ,tha.n' onemi1e aubo'll,r;tbe l;>low was not one of tbose ordinary contacts that: boatEl expected to enCQ'qnter without injury. The fact thl!otshe did not sink at:once, and was only so little broken that it could be wedged up so as to enable her to complete the voyage, make strongly against the contention that her beams were as wellk as some of the claimants' witnesses suppose. Coosidering that she wa,sso heavily loaded when brought to a dead stand against such a corner, !lind that the lines attached to her were parted, there seems to me little ,doubt that boats. in the ordj,nm;y condition of, those usually towed in this business would have been injured substantially the same as tQis one, and so as to require substantially the same repairs; and that thiEj boat was notsonep.t:1y in an unseawortpy condition, or so speciaUy liable.to injury .by'the ordinary contacts of naviglittion, aato Ipake it incumbent 00 to give notice, of her wellkness, so as to demand speciljtl pare by tug in handling; and, if such notice had .been given, the p.,()es not indicate that that woqlqhave made any difthe tow· Thecasl'sofT,he, SyraC1f8e,.18 Fed. ference in the Rep, 828; The Re,ha-, 22 Fed. Rep. 546; and The N. IJ.Sf,arbuck, 29 Rep. 7,97" not, therefore, applicable here; but rather thosfl of '.fhe Granite StPfA,B Wall. 310; ,The !3altimore, 8 Wall. 3S6;. aniJ.TheHoward, 30 Fed. Rep. ,280. As in the case last cited,however, damagell can only be allowed, .for in a mannercorrespon(ijng with the preyiousconditionof the boat;, not the cost of building a new stem and new bow, . ,since the evidence shows that that. was not necessary. , The. libelant. at the time offered to take $12.5. rhedaimllintsexpected to repair her:for a, much less sum; but it !1Ppeared tbat,tpis not in,elude the, repair of the stem, which 1 thinktqe,boat was entitled to., Nor ,does itapp,ea,r that the claimants had taken into account any allowance for Which the libelant would have been enti"for the few tled to conmepsation/iftherewas for the boat at that time. I think tl25 ia probably all that tpe libelant is entitled to; but, as the testimony ontqat subject was not fully gone into at the trial, either aide can take respect to if desired, paying the costs of it obtains a less favorable result than that sum.
THE THOMAS MELVILLE.
(CU'eut't OO'Utrl, .8. D. New York.
December 81. 1888.)
AD:MffiALTY-APPEAL-REVmW-WEIGHT OF EVIDENCE.
Although on appeal in admiralty to the circuit court a new trial fe to ba had, yet in reviewing testimony brought up from below every possible test is to be used in determining its weight; the effect which the manner and ap· pearance of a witness produced upon the judge below is proper to be con· sidered; and, where there is no decided preponderance of the evidence either way, the district jUdge will be followed.