KALION CHEMICAL CO. V. THE IROQUOIS.
lay, or endeavors to get a speedy berth. Deducting one Sunday, there .remain nine days, for which demurrage should be allowed. If the .amount is not agreed on,it may be ascertained by a reference. The libelants and the cross-libelants are each entitled to decrees .accordingly upon their respective claims.
KALIO.N: CHEMICAL Co. V. THE IROQUOIB. 1
(District Court, S. D. New YO'I'k. March 1, 1889.)
C.UUUERS-DELIVERY OF GooDs-DELAy-DAMAGE.
Owing to a quarrel between the master of a ca;nal·boat and stevedores em· ployed on a ship, caused by the improper of iron ore into the c.anal· boat from the ship, two days were lost in the discharge of the ore. By tlle lou of this time all the ore could not be forwarded on canal-boats before the canalcJosed, and, this action was brought against the, owner of the vessel by the OWner of the ore to recover the extra freight paid. , Held, that the ship wll.s liable for the misconduct of the stevedore's men, asits agents, in the improper discharge; ,and the libelant was also at fault· through the delay of the boatman; its agent, in securing a proper adjustment 'of the difficulty: that the libelani, 'therefore, should recover half its damage. each side looking for fur· ther indemnity to the respective agents employed.'
In Admiralty. Action against the ship Iroquois for improper discharge of libelant's iron ore, whereby libelant was compelled to pay extra charges. Wm. McMichael, for libelant. Henry D. Hotchkiss, for claimant.
BROW.N:, J;o. Ido not feel warranted in finding any lack of diligence on the part of the shipin the discharge of her cargo up to the 13th of :December, when notice 'was given that a boat should be sent to receive the libelant's ore fromaldng-side. Mr. Laing, on the part of the ship, :understood thaHhe ore was designed to be transported to Philadelphia by way of the Delaware & Raritan-canal, which, accordirigto official notice, was to close at midnight on the 19th December. Proper measures were taken by him for the delivery of the ore in time; and I have no doubt it would have been delivered but for a quarrel that arose between the stevedore's men on the ship and the men on the canal-boat, in respect to the dumping of the ore by letting it fall a considerable distance, so as to endanger the boat. On the arrival of the captain of the boat, about 8 o:clock on the morning of the 14th, when some 5 or 6 tons had been taken on board, he found the boat leaking and injured, through the fall of the ore from the end of the chute, a distance of from 15 to 20 feet. The ore was chrome ore, more or less in lumps, some of which weighed 50 pounds each. Such a mode of loading the canal-boat
by Edward G. Benedict, Esq., of the New York bar.
was manifestly dangerous and unjustifiable, and the stevedore's men were grossly in the wrong in undertaking to load the boat in that way. I have no doubt of the general truth of the captain's statement that when he protested against this he was met with jeers and insults. What happened afterwards is beset with contradiction. It is quite possible that as the boat had already leaked abeve the lining, through the injuries done by the falling ore, the owner of the boat, who came there at about 12 o'clock, hesitated to continue the loading. He denies this, however, and testifies that he offered to go on with the loading if the steamer would lower the Qre in tu hs, as customary. The head stevedore came there at about the same time. He testifies that he did offer to lower the are in the usual way. but that the owner refused, because he had not previously understood that this was the kind of ore he was expected to take, and because he did not consider the boat fit for the job. Two days were thus lost, during which the ship discharged nothing. On the morning of the third day the boat was again brought ltlong-side, the ore was put on board in a proper manner, and her loading completed that day. I am satisfied that it was on account of this two days' loss of time in loading this first boat that .the rest of the ore was not loaded in time to go through the canal, in consequence of which the libelant was obliged to pay $218 additional freight. Who is respon;sible for that two days' loss of time? The principals on both sides, it is quite clear, acted in entire good faith; and I do not find any personal want of diligence on their part. The cause of the trouble was this difference between the stevedore's men and the boatmen,-a difference which ought to have been settled in an hour. For this difference both the parties immediately involved ought to. be held equally responsible; the stevedore, for the misconduct of his men in dum ping ore of that kind such a distance, insteadoflowering it in buckets, and the owner of the boat for his delay in determining what he would do, and for not at once sp.eking his principal and securing an adjustment, which it is evident would have been speedily effected. As the boatman was legally the agent of the libelant, and the stevedore the agent of the ship, in making the discharge, the libelant can recover but half his damages from the ship, with costs; and each side must look for further indemnity to their respective agents employed.
HiS. CO. V. THE QUAKER CITY AND THE ISABELLA E. WILBUR.
PHENIX INS. Co. v. THE QUAKER CITY
THE ISABELLA E. WILBUR.
(Circuit Court, B. D. New York. March 22, 1889.)
COLLISION-MuTUAL FAULT-TuG SHIFTING
Tow. Though a vessel engaged in shifting her tow is entitled to the undisturbed use of a sufficient area of the water to execute her movement!!, yet. if she moves voluntarily while a navigating vessel is dangerously near, keeping no lookout, and giving no signals, thus contributing to the ensuing collision, she is in fault, and liable for damages.
In Admiralty. Libel for damages. On appeal from district court. The Phenix Insurance Company of Brooklyn libeled the steam-tugs 1. E. Wilbur and Quaker City for a collision in which the canal-boat H. M. Burruss, towed by the former, was sunk at the loss of libelant. The opinion of the district court is as follows:
"BROWN, J. In the afternoon of November 5,1885, the steam-tug 1. E. Wilbur, with two loaded canal-boats lashed on her port side, left the stakes at Jersey City, about opposite pier 1, North river, bound for Adams street, Brooklyn. In the strong ebb-tide she crossed the North river, always heading somewhat up the river, so as to make an actual course near!)' directly across, blft dropping a little tothe southward, and ran into the slacker water to the southward of pier A, whither she went for the purpose of transferring one of the canal-boats from the port side to the starboard side before going up the East river. While shifting this boat the steam-tug Quaker City, with seven boats in tow, two of them being lashed on her starboard side, came out of the East river, bound for the Communipaw coal-docks, a quarter of a mile below the stakes, and running arou nd the Battery within some 200 feet of the barge-office, and following along the shore in the slack water before heading across. The starboard boat of the front line of the tow carne in collision with the starboard quarter of the Wilbur when nearly abreast of Castle Garden, whereby the boat was sunk, and her cargo of iron became a total loss. The libelant, haVing paid the loss, sued both tugs to recover the amonnt paid. "There is considerable conflict in the evidence as to the distance from the ghore of the place where the collision occurred, and as to the heading of the two at the time. In such a conflict very considerable weight ought to be given to the course that is ordinarily pursued by experienced and competent pilots, like these, in the management of the vessels and tows under their -charge in pursuing their undoubted objects. This consideration is specially .applicable to both of these tugs. In this view. and considering also the respective opportunities of the witnesses for obsening and of judging, and the matters which engaged their attention at the time, I find the following as the most probable facts: "1. '£hat the Wilbur came' within the slack water to the southward of pier A, and to the eastward of the outer line of that piel', and rounded to somewhat, so as to be heading a little up towards pier A; that she thereupon 'Stopped her engine, cast off the line of the boat to be shifted, suffered it to run ahead, and afterwards pulled the stern of this boat around her -own bows. preparatory to getting along-side of it; that in these maneuvers the Wilbur twice backed her engines, with some intervals of stopping between, .and probably carne within 300 or 400 feet of Castle Garden wall; that her pilot, while thus engaged, paid no attention to other vessels comirigaround the Battery, considering himself sUdicientlyout of their way. and that be
consequently did not heed or hear any whistles from the Quaker City until she was only about 100 feet distant, though previous whistles had been given by her. "2. I think the Wilbur did undoubtedly back in the water during the man· euvers above referred to, and that by tuis backing she caused l1er stern to lap somewhat the Quaker City's bow, as she came near to her, though shortly before she was a little on the latter's starboard bow. The testimony of the Quaker City in this respect is entitled to superior credit, because it was peculiarly within the line of her observation; and because the attention of the Wilbur was not specially directed to this point; because actual backing of the boat, and not merely of the engines. Was quite natural, and was a common act in pUlling another boat around, and was necessary, unless there was sufficient head way of the tow previously to dispense with such backing; and because Mr. Johnson, who thinks his boat did not move back in the water, did not llave equal means of observingasto this fact. "3. The Quaker City did not ptirSllea direct course from the barge-office to the Communipawcoal-docks, but kept up in the slack water for the purpose of avoiding the strong tide further out before crossing. She had timely means of observing the work in which the Wilbur was engaged before reaching her; and when got no answers to her previous whistles she was bound to have gone out intothe stream futther, or have given to the Wilbur a larger margin fOr ,her maneuvers in shifting her tow, and was in fault, therefore, for shaping her course so near to a tug eVidel,ltly engaged in that business. "4. I find that it was a common practice for tugs intending to cross to Je1'Bey City in the strong ebb to move uIl towards pier A in the slack water before entering the strong ebb; that this practice was well known to the pifot of the Wilbur, and that, in view ont, be was bound to attend to the signals of vessels pursuing this customary 01'. frequent course; that he should have observed that. the line of the QuakerOity's approach with her tow was too near to admit' of his backing with safety, and that he should therefore, before backing, have given her cautionary signals of his intention to do so; and that, had he observed her previously, and waited a few minutes before the last backing of! his engine, prior to the collision, as he might have done, and d,oubtless would have done had theaj>proach of the Quaker City been observed, the collision would have been avoided. . "5. It is urged against the Wilbur that the final cause of the collision was per going ahead at full speed at the last moment, when the Quaker City had approached within 50 or 100 feet of her, and that by the swing thus given to ,her stern, and by that only. the colliSIon was precipitated, which might otherwise have been avoided. The Wilbur's witnesses, on the other hand, contend that a worse collision would have happened had her engines not been put full speed ahead. It is impossible for me to reach anicertafn conclusion as regards what was best after they had l!-pproachedso near to each other. That is a condition in extremis, in which considerable latitude is allowed to the judgment of each boat at the time, without attribllti'ng to either legal fault. even if the measure adopted under the pressure of the circumstances was not best. The faults chiefly regarded by the law are those:which have brought the vessels into such close quarters. It is upon these prior faults that I must regard both tugs to blame, and direct the damages to be diVided."
Fratnk D. Sturges, for the Quaker City, cited: The Wilson, 7 Ben. 367; The Faidta, 8 Ben. 11; Packer. 28 Fed. Rep. 160; The St. Johns, 34 Fed. Rep. 763; The Johnson, 9 WaH. 146; The Cambusdoon,30 Fed. 710; The Free State, 91U. S. 200; 'the (JaWeo, 24 :Fed. Rep. 386; The Servia, 30 Fed. Rep. 502; l'he Maria Luigia, 28 Fed. ReP. 247; The Fairbanks, 9 Wall. 420; The Dexter, 23 Wall. 69; ''l.'he Excelsior, 12 Fed.
co. v. TH]jQUAKER CITY
AND THE :u!ABELLA E. WILBUR.
Rep. 195;' The'Wesle1/Seym6ur, 7 Ben. 539; TM'8tate of Tewas, 20 Fed. 'Rep. 254; Mars. CoIl. (2dEd.)311; The Pecliforton Oastle, L. R. 3 Prob. Div,ll; The Seaton, L. R. 9 Prob. Div. 1.
E. D. McCarthy, for the Isabella E. Wilbur, cited:
The Maryland, 19 Ped. Rep. 555; McNally v. Meyer. 5 Ben. 240; The America, 29 Fed. Rep. 304; The J. T. Easton, 27 Fed. Hep. 464; I'he White Fawn, 20 Fed. Rep. 649; The Wm. H. Payne, Id. 650; The City of Chester, 24 Fed. Rep. 91.
LACO:M:BE, J. No new proofs were taken in this court. The district judge held the Quaker City in fault because, seeking to take advantage of the slack water by hugging the shore while and after rounding the Battery, she shaped her course too near to the Wilbur, which she might have .seen was engaged in the business of shifting a part of her tow, instead of going further out into the stream. That decision is affirmed. The Wilbur was ,held in fault (a) because she had no one to observe the movements and attend to the signals of approaching vessels; (b) because she gave no signals announcing her intention to back; and (c) because she backed when she did. It is contended on behalf of the Wilbur that when engaged in the operation of shifting her tow she was not a navigatingvessel; and that her conduct as to giving signals, etc., is to be judged not by the rules for navigating vessels, but by those for vessels at anchor or berthed. "WJtatever force there may be in the contention that a vessel when so engaged is no longer a navigating vessel, and as such need not give the'signals, follow the courses. and make the movements prescribed for such vessels, she certainly is not actually in the same condition as one at anchor, or fast to a pier. She is not absolutely at rest, but changes her position from time to time by voluntary as well as by involuntary movements. It may be held that the water within which she is executing her maneuver must be left free for her by other vessels, but even within that area she should move forward or backward only after exercising ordinary foresight to see if it has been so lelt.. Because she may be helpless to take herself out of the way of collision with a vessel intruding into her water, it does not follow that she is equally helpless to refrain from'such voluntary movements within that water as will make a possible collision inevitable. That the Wilbur did actually move backward in the water, and did by this backing cause her stern to lap somewhat the bows of the Quaker City as the latter came near her, is found by the district judge on conflicting testimony. Although such backward movement was one "natural, common. and necessary" to the maneuver of shifting a tow, and may not have been continued beyond the area usually required for the execution of such 'maneuver, it is hardly possible that any person of reasonable prudence would have undertaken slIch movement if aware of the close proximity of the Quaker City, and of her evident intent to intrude within such area. Had anyone on board' the Wilbur given proper attention to the movements of approaching vessels, the Quaker City and her probable course would have been noticed, and
the backing which finally precipitated the collision would no doubt have been delayed until she passed. For these reasons the decision of the district judge is affirmed.
GREENWOOD ". THE WILLIAM FLETCHER AND THE GRAPESHOT.
(DiBflrict Oourt, S. D. New York.
March 1, 1889.)
COLLISION-BETWEEN TuGs-MUTUAL FAULT-INJURY TO BOAT AT PIER.
The tug F.lay in the North river, stern to the docks, drifting with the flood tide, and about to back into her slip when opposite it. The tug G., coming up stream, close to the docks, at a speed of at least four knots, observed the F., blew one whistle to show that she intended to pass inside of her, received no reply, and kept on .. The pilot of the F .. without looking astern of him, backed, collided with the G., and threw the latter against the boat H., which lay at the pier. Held, that both tugs were liable for the damage to the H.·the G., for maintaining ber speed. in her position, after observing that hel' signal was unanswered; the F., for backing without looking astern to see i.,f the way was clear.
In Admiralty. Hyland &; Zabriskie, for libelant. Wilcox, Adams &- Macklin, for the Fletcher. George W. Drase, for the Grapeshot.
J. The libelant's steam canal-boat Hebe, on the 15th Decem-
ber, 1888, while lying at the end of pier 41, North river, heading down, and taking on a cargo of iron, was run into about half-past 4 P. M. by the steam-propeller Grapeshot, which, with her stem, struck the Hebe's port bow a severe blow, doing damage 'to the Hebe and her cargo, for which this libel was filed. The Grapeshot was coming up river in the slack flood-tide, close by the line of the piers, looking for a job; and when between piers 40 and 41 she was struck on the port side, about abreast of the pilot-house, by the stern of the steam-tug Fletcher, which was then backing into that slip, and by that collision the Grapeshot was thrown out of her course, so as to make the latter unavoidably collide with the Hebe. The second collision being the direct consequence of the first, and the libelant's boat not being in fault, the question is simply which of the two defendant boats is in fault for their own collision. The W. J.' MeCaldin, 35 Fed. Rep. 333. The Fletcher had come there as usual, designing to lie up for the night, on the south side of pier 40; but, finding that berth occupied, she rounded head out into the river until about square across, opposite pier 40, and then waited a few minutes, slowly drifting up with the tide, purposing to back in along the northerly sid'" ofthat pier. There is great conflict in the evidence as to the distance the Fletcher went
lReported by Edward G. Benedict, Esq., of t"e New York bar.