. THE ADDIE
THFi J. J.
(Dl.sWWt C01./I1't, E. D. New York. July 16,1811O.)
A ;vadht was lying at anchor; when a gale arose,. and the yacht became in danger of gOlng alOhUre. To. render h4;n' a salvage service, a tug took hold of the yacht to tow her off shore. The anchor of the yacht remained down, which fact was known to the master of the tug, but no effort was made to have the line taken in, the anchor being allo",ed to·drag, until it cllought in the anchor of libelant's yacht, whi!lhwas thereby torn from her moorings, arid subsequently went ashore. Hew., that it ·W8S the fault afthe tug. .. .
In Admiralty. . SuiUor damages caused by stranding. A. VanDe Water, for libelant. HylmndJc Zabriskie, for claimant.
BENEDICT, J. This action was commenced by Henry B. Abrams, then the owner of a small vessel called the "Addie B.," to recover of the steam-tug J. J. Driscoll for damages done to the Addie B. by stranding, under the circumstances hereafter stated. Abrams having died quent to the. commencement of this action, it is now prosecuted by his daughter as executrix. In September, 1889, at 10 A. M., the Addie B. was lying off Whitestone, made fast to a mooring-stone, when a dangerous wind blew up from the north-east. Her owner, to make her secure, put out two ,more lines to anchors, and then left her, thus safely moored in a proper plaoe. The yacht Amaranth lay near the Addie B., and, being in danger of being driven on shore, the tug J. J. Driscoll, for the purpose of rendering a salvllge service to the Amaranth, went to her assistance, took hold of her by a line from her bow, and commenced to tow her off the shore. At the time the Driscoll began to tow the Amaranth the Amaranth had anchor down, and this the captaIn of the Driscoll knew, as he himself says. This anchor was being allowed to drag when the Amaranth passed the Addie B. in tow of the Driscoll. The dragging anchor of the Amaranth caught the anchor of the Addie B., and in this way the Addie B. was tornfrolllher mooring, and she was towed by the tug' for some distance by. her anchor lines, when, the anchor lines· parting, the Addie B., being thus freed from tpe Driscoll, brought up on her line, that was still fast to ..the The storm was heavy, and, the mooring-stoneproving insufficient to hold the Addie B., she. was driven ashore, sustaining the injuries for which this action is brought. The first point made in defense of the tng is that was no negligeoce of hers that the AUlaranth's anchor was down, and so caught
'Reported by Edward G. Benediot, Esq., of the New YOl'k-bar.
J'EDERAL REPORTER, .vol.
B., but negligence of the Amaranth; and that the action should have been brought against the Amaranth instead of against the tug. The case of The J(J,ck Jewett, 23 Fed. Rep. 927, is cited as authority for this position. But the present case differs from The Jack Jewett in that the J. J. Driscoll was engaged in performing a salvage service to the Amaranth. She had no contract with the Amaranth, but took charge Jf her in the capacity of salvor, for the sake of the salvage reward to which she would be entitled. She is accordingly responsible for Rny damage done by the Amaranth while so in her charge. It was in her power to get up the Amaranth's anchor. She knew it was down, and, having undertaken to tow lier with the anchor down, is responsible for the damage that ensued. The next position taken is that there was no fault in the navigation oCthe J. J. Driscoll, because she was ignorant of the position of the anchors of the Addie B., and, under the circumstances, was unable to pass further from the Addie B. than she did. The evidence shows that the anchors of the Addie B. were not out any unusual distance. The position of the Addie B. was notice to the tug that shehad anchors out. It was her duty' to avoid the anchors of the Addie B. Upon the evidence shecould have taken the Amaranth further away from the Addie B., so have avoided all danger of fouling. The third and prh'wipal defense is that the Addie B. remained where she brought up after being dropped by the Driscoll for a space of three hours, during which time the Driscoll, according to some witnesses, on three, and, according to others, on four, occasions offered to her owner, Abrams, then on board of her, to take her to a place of safety, which offers were declined. The making of these offers is denied by the libelant. Abrams is dead, and three or four witnesses are called at the trial to prove this defense. These witnesses swear positively to the making of these offers,but in my opinion their testimony, positive as it is, must be held to be overthrown by the testimony of the witness Webster, called by the ·libelant. This witness, who has no interest whatever in the controversy, Was asked by Abrams, Of the Addie B., after she had 1;>een dragged from her mooring by the Driscoll, to take him out to her, and he did He was then requested to take a line from the Addie B. to another',vessel near by, and he' left the AddieB. for this purpose inhis boat, but the vesselrefused to take the line, and then Webater was blown off by the storm, and unable to regain the Addie B. Thus Abrams was left on the Addie B. alone, without a boat, in a dangerous storm:. Bewas an oldman, in poor health, and of feeble voice. That, under such circumstances, the. cild man should have refused any offers of the . tug to put him in seems to me to be highly improbable. The facts proved show conclusively that he knew his vessel was in danger of dragging ashore, and no reason can be assigned why he should refuse to accept from theI>riscoll an offer torel>air the injury that had been done him by tearing his vessel from her mo'orings. In the next place it is difficult to believe that this feeble old man could have made himself heard on board the tug in such a storm as the witnesses say he did when
THE ADDIE B.
he refused their offers. Furthermore, the offers of assistance are said to have been made to the old man at intervals of about an hour and a half, and to have continued up to about 3 o'clock in the afternoon, when she went ashore. But Webster's evidence shows plainly that the Addie B. did not hold on for any considerable time after she was dropped from the tug, but went ashore in a short time. This witness watched her after he had been driven away from her, and says that he saw no approach to her by the Driscoll, as the witnesses from the Driscoll describe, and his evidence pl'Oves to my satisfaction that the Addie B. went ashore a considerable time before 3 o'clock. The witness saw the Addie B. go ashore, and himself rendered assistance to the old man at the time she came ashore, and before he went to his dinner. After that he went to his dinner, and at about 1 o'clock. The testimony of this witness is therefore entirely inconsistent with the testimony from the tug that on three or four occasions, extending up to 3 o'clock, they offered assistance to the old man. In this state of the evidence I am not convinced that proffers were made to Abrams to remove him to a place of safety. Furthermore, such offers, if made, in order to constitute a defense must appear to have been offers to take the Addie B. from the place of danger where she was left by the tug free of charge. There is no evidence to show that offers of that character were made. The offers, described by the witnesses for the tug, were simply to tow the Addie B. to a place of safety, presumably for salvage compensation, as in the cases of the other vessels which the tug did take out that morning. An offer by the tug to become a salvor to the Addie B. after she had been placed in a position of danger by the tug constitutes no defense to this action. But, as has been already said, the evidence has failed to satisfy me that any offers of any kind were made to the Addie B. by the tug. Let a decree be entered in favor of the libelant, with an order of reference.
; ·. PORNEU,
Oourt, E. D. We:w
York. JUly 21,1890.)
lipq, \Il<¥>ntraot aUtlleboat& of the Delaware & HU'dsoD Olirial Company·. While, towing one of their boats, it was run into and :,!l1,ih,k,',b,Y,' 8' :fer,rY-boat.The, ca,n,aleotnpan,y, olaimedthat, the libelant was, liable to them for the damage., Libelants: denied this, notwithstanding which the oanal , ,oom'panydeducted the amount of the damages from their next payment to libelants. ":: ': Libelants:tefUsed to recognizetbeir 'right to make this deduction, but the money ,,',' wlth)J,ellii until the statute of limitations was about to tun in fMor of the col. "Udirig ferry-boat, when the,hbelants assented to the deduction, and brought this , action in their own name against the fllrrY-boat. On exception to the libel on the ,ground that.itshowed no cause of ,action in favor of the libelants, held that, under the cil;cuInstances, libelantS were subrogated to the rights of the canal oompany, ; and the exception should be overruled·
.,1 In Admiralty.
On exception to libel.
Robert D. Benedict, for libelants. .RobinBOn, Bright, Biddle '&: Ward,. for claimants.
BENEDIC'J.'I, J ... This action is brought by the ,owners of the tug-boat Genl.Sheddan, to recover of ii-he ferry-boat Jersey City the damages done to the coal-boat No. 3,O.%ljand her cargo of coal, while being towed by the Genl. Sheridan, in a collision between that boat and the ferry..b6at, Jersey City· The libel avers that the collision was caused by .the sole negligence of the ferry..boat; that the libelants have paid to the Delaware & Hudson Cana1JCotnpany, the owners of the coal-boat No. 3,059, the damages so caused; and that by reason thereof they have been subrogated to the rightsof the Delaware & Hudson Canal Com pany to recover said damages of the ferry-boat. ,Wherefore they pray to recover of the said ferry-boat the sum they have so paid the Delaware & Hudson Canal Company. To this lIbel the exception is taken that it . sets forth no cause of action, because the libelants' payment of the Delaware & Hudson Canal Company's claim, as owners of boat No. 3,059, and cargo, for damages sustained while in charge of the libelants' tug, Genl. Sheridan, confers no right of subrogation upon the libelants. It appears by the evidence that the libelants had a contract with the l)elaware & Hudson Canal Company to tow all their boats at certain prices, for which they were to be paid on the 10th day of each month. . This towing they agreed to do in a skillful, judicious, careful, and effective manner, and they also agreed to pay all damages and losses that the Delaware & Hudson Canal Company might sustain by reason of the omission of the libelants so to do such towing. Upon the happening of the collision in question, the Delaware & Hudson Canal Company set up the claim that the libelants were liable to them for the damages done the coal-boat. This the libelants denied, notwithstanding which
'Reported by Edward G. Benedict, Esq., of the New York bar.