(District Court, S. D. New
TOWAGE-NEGLIGENCE OJ!' TUG-PRESUMPTION.
Though a tug is not an insurer of her tow, if the tow is run against a wharf 11 clear weather, negligence in the tug is leglLlly presumed.
The libelant's coal-box was' one of a tow of seven boats in charge of the tug B. J. W., bound around the Battery and up the East river. The tow was unwieldy, and moved throtlgh the at the rate of only about one mile an hour, and was car· ried with the tide against the end of pier 45; about a half a mile above the Brooklyn 'bridge. ,The excuse of the tug was that a schooner sailing past them, on the right, prevented the tug fromgping as nearthe Brooklyn shore, a little below the as was necessary in order to avoid the effects the cross-tide towards the New York shore. The pilot testifled, that .the schooner, ,with a ferry-boat coming in the opposite, direction a little later, threw him from four to six hundred feet to the westward of the usual course, and that the collision was thereby unavoidable. Held, that the circumstances showed that the pilot's estimate was,a gross exa$ger.' ationhand that there would have be!m no diffiCUlty in keeping the tow from pler45, had t e tng ported sufficiently in time. " The estimates of witnesses, and statements as to the effects of tide, though uncontradicted, go for,nothing, when contI'ary to laws of nature and to weU-known facts of navigation otherwise,appearing in the testimony. ' " '
Carpenter &- Mosher, for libelant. Wilcox, ,Ada'/1l.8 <fe'Macklin, for claimant.
Qame in contact with the corner oipier 45, East aJ?d was so injured thereby as to sink shortly anQ, with the cargo, become a total The libelant, as insurer of the cargo, having paid the loss, brought thatthecollision was 'by negligence this suit for ofthe tug. The box was' oQe of seven taken in tow by the Weed at J(:lrsey City,bound through the East river to ports on Long' Island As the weather was fair, the presumption is that the tug was negligent in the tow to Qome in contadt with the The defense is thatthe master of the tug was and his proper course, whenjust below ,which came 'up with the flood-tide, sailing wing and wing, and ran' betweep. the tow and the Brooklyn shore, so as to prevent his getting as near to · the Brook.lyn shore as was necessary; 8econd, by a ferry-boat, which, immediately after the schooner had passed the tug, came down the river from under the bridge, and, instead of going on the New York side of the tug, crossed the tug's bow, towards the Brooklyn side, and so continued to force the tug towards the New York shore. The tide from Buttermilk channel sets from the Brooklyn shore towards the New York shore all the way up to and above pier 45; and it is said that by the above-named obstruction the tug was so prevented from getting near Jewell's wharf, and so carried by the set of the tide towards the New York shore, that, despite anything the tug eould do from that time, the
, BROWN, J. box k,nown as"N. E. T.No. 54," loaded, with coal, wW1e in to'Y, of the steam-tug ,Sarah J. W'eed,
WESTERN ,ASSUR. 00. ,. THE SARAH
box in qqestion was unavoidably carried over against pier 45.. It is claimed that ,the tow was driven out of her proper course, by these ob.. structions, from 400 to 600 feet towllrds the New York shore, and so forced to pass under the bridge on the New York side of the river, instead of going 600 feet nearer to the Brooklyn shore; and that, from that position, in the strong flood, collision with the pier 45 was unavoidable. I have no doubt, from the evidence, that the tug was a boat of sufficient power, in ordinary navigation, to handle the tow, cumbersome and wieldy as the tow was; and, if the above contention is fairly sustained, the tug should be absolved from blame. But I find ipmpossible -to accept the theory of the defense. . As respects the the evidence is that,the pilot of the tug nrst no,ticed her right ahead, coming down under the bridge nearly end on, just after the schooner had passed the tug abreast of. Martin's $tores; that no signal was given to the ferry-boat by the tug, and that she passed on the Brooklyn side, contrary to tpeexpectation ofihe pllot of the tug. It is enough to say that" if it had. been necessary to the safety.of the that the ferry-boat should go on the New: Yoric side ,of the tug; ther.e .wa& special reason, in addition to the general obligation imposed by the supervising inspectors' rules, why the appropriate f3houlq hlj.veqlllilU given· by the.tug. Hail such a signal.been given, itcann,ot .be suppoSed that the ferJ:y-bQat would not have observed it, Ilnd acted .accordingly. So far as the course of the ferry-boat affe!Jted the n,avigatioD, Qf the tug,. the .latter is to blame for not having given the necessary signal. 'IThe Connecticut,l03 U. S. 710, 712; The C. H. Seuff, 3,2 :F,ed.:Ete,p.23l. . . It is \lrged, however, that the change in the tow's p0sitiQn Caused, by the schooner lYas of itself sufficient to make it imp()ssible for the ,tug to ,the tovrclear of pier 45. This is. founded, howeveJ,'.. is a, very great overestimate by the, pilot of the tug of the deviation ,capsed by the schooner, viz., about 400 feet; and, even iCtheschooner had crowded the tow so much out of the way, I am satisfied there was no difficulty in overcoming it by timely porting. .' . . The evidence leaves no doubt that the usual and proper course oftug$ with such tows on the flood-tide. is to proceed up the East river, steering for Stores, so as to pass within about 200 feet of J eweWswharf, (about three or four hundred (eet below Brooklyn bridge,) a.nd from that point to steel' towards pier 50, near Corlear's h()()k. Thes,e courses, it is .stated,woul,d bring the flood.tide on the starboard side of thlil tow bep.oiilt, tQ fore reaching Jewell's wharf, and on the p.ort side, Corlear's hook. A line from a point 200 feet off Jewep's 50.is shown by the chart to form an. angle of not two points with the New York shore above the bridge; and, as this course brimis the flood-tide on the port side, it is evident that the ;flood-tide runs. prqsswis6 tqwards piers 45 and 50,hy an angle qf than two points. As the schooner,moreover, acqo,rding to the testiIllony, nloying. through the water about five times as .fast /lS the tow, /lnd at' tlJ..erate of ab\>ut aye or miles hour, and as· the wh,ole line Qf the tugapd, .tOwloVllS 437 tug did D:0t'haql ;toport:until
[; : ",
6nhe it follow$ that three-qtiartets of 'ii, niinute in, passing the the schooner tug, nor was, the tug ha,ulingto portinOl'e than that time 7' Theschooner diq, notthreater the tow, but the tug only, and tlieonlyeffect of the tow'spottirig was tq -let thetow "the tide towards the New York shore;, and;irthe angle 'of the tide,across thativer were fully two points; towards:the New Yotkshoi'e during this (reckoning the tide at two anda)alf knots,) must have been only about 40 feet, instead ,of Qy the' nliisier of the tug. The tug did not pull tnetow towards the New York shore, because the schooner only forced the tug toport,enough to "about straight up river." From Martin's,stores, it is'morethan a half a mile to pier 45; and if the tllg, had fdllowed 'the usual course, 130tts to have run; If unobstructed, wlthm 200 feet of Jewell's wharf, and if, frOm tha:tpoint, she could safely ,Steer directtowaI'ds pier 50 OQ the New York shore, as thtdestimonysMw"s she could, thereby actually crossing 1htltid:e somewhitt'towards the New. York shore, it is manifest thitt the Weed, by headinlrmoreto starboard,could, in going a half a mue,hav"" overcome;' not Ii. displacement of 40 feet, but many displacement.', ,, ' , ' , .' " ,Again, the:line of ithEHlsual ,course. from off Jewell's wharf to pier 50 runs apelist 600 feet distant from pIer 45; and,' as the flood-tide, acto the testimoriy', strikes boats, while on that course, upon the port side, tpe effect of, tHe, tide mutt to set a fow still, fu rther away fron;t the" pier than line runs, i. 6., niore than 600 feet from it, even w,ithout anybelp (rom a port , If,instead 'of following the usual course from off J ewelPs beMing two points towards the'New tWd;poi.nts towards the Brooklyn shOre, eveplf'she'wetemakmgdnly per hour through the water, iristead'oh 'm,ile 'or thre'e-quarters of a. mile, as 'the master elsewhere estima'tes;'iu1d as is morepr6bable, from the usual tiine to Norwalk, she must have gone 400, feet" more towards the Brooklyn shore than' the would feet from pier 45. ,As $OonasshegQt above if she was much out of her usual course, therewa(nothing to three, or even f6ur,pdints towards the'Brooklyn shore, uutilshe,had S!l'lned her usual placeip' tile river, which, she would have pier 45. E,\teri, therefore; had 'the tow beencfowded by the ,schooner 400'£eetout titplnCEl, inS,tead of about ,40 feet, would have been no difficulty ip.keeping well off tromP-iar had the tugportetl sufficiently in time. heidid, head towards the Brooklyn , sliln'e'allthat was didlill irihis power, etc.; but what he was general testimony) sta,tements,'also, tide cartses, or 'would cause, that "hat lIre inpa-rt:hypotheticll;l and i# ;Pilt,t contrary to of nature; fQr nqthing; a;gainst the llllfacts conceJ'ntng the naviglitio'n rivflr that appeal' in to the court'; ftom which: it is: plain that
ij'Jhe course was taken there CGuld have beenlloqW;lcu.lty. despite the acts of the schooner, in keeping clear of pier 45 a half a mile above, had seasonable Ineasures been taken to do SQ. The libelant is entitled to a decree,with costs." !j
EARNMOOR t1. CALIFORNIA
(Df8tnict;UCYlWt, S. D. New Y<Wk. .January6,1890.)
LlIABnqB IN8Ul\ANOB-AcTIOlII OlllPOLIcy-PAllTIESo,
Upon: a 'marine insurance policy issued to "A. E., lIpon account of whom it may concern, in case' of' loss; t.o 00 paid, to 'him or order," where the insurance was effor the QWJ;ler at the time, held, that, the W;loS , in the naweof the libelant, who was the maured .The !l*lIel ahould show, ports to ti\ke effect. .
at the time the policy pur.. '
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:It belng'eettled in thlsclrouit thateeaworthinessls presumed, a libel on a marine policy IJ.otalllWeseaworthiness. What need not be .proved,nee d notbe . ThisrUre'DrOmotessimpUcity as 'to real' tssue' intended to'bettred. ThepleBlbfl1nseaworthinesa,,if that issnels 'desired to be raised, comes more properly defell-se.
. :In ,Wing,
&: Putnam,. for
. . ,
'fJie ,lpsunng "Alfred Earnshaw, on account of whom It may concern, lD case of loss, to be paid to bim or order." Exceptions are taken that the libel does not allege (1) any order or transfer from Earnshaw; nor (2) that the libelant had any interest in the policy when issued; nor (3) that the vessel was seaworthy. 1. The libel alleges tbat the libelant, at all times hereinafter mentioned, was the owner of the ship, and that "said insurance was made for and on behalf of the libelant." As the policy is expressed to be isaued "on account of whom it may concern," the libelant, under that allegation of the libel, is the real party assured, if he was then the owner. Earnshaw is but the agent; and the action, in such case, may be brought in the name of the principal, without any written transfer, as was long since adjudged. Sargent v. Morris, 3 Barn. & Ald. 277, 280; Farraw v. , Insurance Co., 18 Pick. 53, and cases there cited. 1 Phil. Ins. 199. Subsequent provisions in this policy, moreover, expressly state that payments are to be made to the "assured;" and the assured, under a policy in this form, is the person for whom the insurance was effected, i. e., the person who is the real party in interest. The word "him," in the phrase "him or order," includes the "assured" as well as Earnshaw; and no written order or transfer is needed, except to enable some third party