THE KING KALAKAU. 1
NEW YORK LIGHTERAGE & TRANSP. CO.
Court. E. D. New York. July 24, 1890.)
'ruG AND Tow-FAULTY LOADING-NEGLIGBNCE OJ!' TUG-REMOTE CAUSE.
A tug took in tow libelant'8 barge; whioh was loaded with a deck-load of rails, and with bnrlaps below. The tug left tbe barge at a stake-boat, where, during the night, she rolled 80 heavily as to lose her deck-load overboard, and received damage herself. For the 10S8 she sued the tug. Held, that the immediate cause of the loss was the top-heavy condition of. th4il barge, and the act ofthetQg in leaving tbe barge at the stake.boat was but a remote cause of the damage, and did not render the 'tug liable.
In Admiralty. Action for alleged breach of towing contract. Carpenter jX for the libelants. Robt'nsan-, Bright, Biddle jX Ward, for the claimfl,nts. 'BENEDICT, J. On 01' about April 1, 1887, the Pennsylvania Railroad Company contracted with the libelant to tow the barge King Kalakau, loaded with old rails and burlaps, from Brooklyn to a dock at South Am boy, N. J. That barge, in tow of the tug Amboy, started from Brooklyn; and about 3 ,o'clock P. M. of the same day reached South Amboy. : On arriving at South Amboy the barge was placed at the stake-hoatthere. The 'wind was high at the time,and a snow-storm pre.vailing. About 12 o'Clock that night the respondent's tug went to the barge, still .lying' at' the stake-boat, for the purpose of taking the' barge into the dock, but all on board the asleep;. and, getting, no' response to various hails, the tug departed without the barge. At about 1 o'clock the barge rolled heavily enough to dump her deckload of rails overboard, the boat herself receiving some damage thereby. These losses the libelant seeks to recover of the Pennsylvania Railroad Company. The argument in behalf of the libelant is that it was a breach of the towing contract to leave the barge at the stake-boat, and that this of the contract was the immediate cause of the subs&quent loss of the iron. Reference is made to the following cases: TM W. E. Cheney, 6 Ben. 178; Ookeley v. The Snap, 24 Fed. Rep. 504; Phillips v. The Sarah, 38 Fed. Rep. 252; The Bordentown, 40 Fed. Rep. 682. the question whether it was a breach of the contract to leave the barge at the stake-boat, and passing, also, the question whether the barge wall not at her own risk while lying at the stake-boat subsequent to the time when the respondent's tug went to her, to tow her to the dock, and failed because unable to rouse from sleep those in charge of the barge, I am of the opinion that the immediate cause of the loss was the top-heavy condition of the barge, loaded as she was, with rails on deck, and burlaps below. It is evident that the accident was wholly
by Edward G. Benedict, Esq., of the New York bar.
·.' THE BOLIVIA.
unexpected by anyone. No one doubted the ability of the barge to lie in safety at the stake-boat, and it is plain that she would have encountered no loss if loaded in a different manner. It was, therefore, without contemplation of either party that leaving the barge at the stake-boat would put her in danger of losing her deck load. The aot of the respondents in leaving the barge at the stake-boat-a remote cause, perhaps-was not the immediate cause of the loss that ensued, and did not render the respondent liable for the loss. For this conclusion the decision of the supreme court of the United States in Railroad Co. v. Reeves, 10 Wall. 176, is authority. The libel must be dismissed, with costs.
THE' BOLIVIA. l
et al. v. THE BOLIVIA.
SIPILA v. SAME.
(District Oourt, E. D. New York. April 25, 1890.)
COLLISION-STEAM AND SAIL-FOG-HoRN.
When collision occurred in a dense fog between a steamer and a schooner, and the proof showed that the steamer was navig'ating cautiously i that the schooner was seen as asit was possible that she could be seen, when It was too late to avoid . collision, and her signals were not heard before she was seen j and. that ,the schooner was using an ordinary 'not the mechanical horn provided for by statute,-it was held, that the schooner's failure to comply with the statute was the cause of the collision, and her libel against the steamer was therefore dismissed.
In Admiralty. Actions to recover damages caused by collision. Owen, Gray &- Sturges, for the libelants, Adams and Sipila. Wing, Shoudy &- Putnam, for. the Bolivia.. BENEDICT, J. These actions ll,l'e to recover damages caused by the sinking ofthe schooner Eva I. Smith by the steamt;hip Bolivia. The accident occurred on the Qpen sea in a dense fog. The proof shows that all possible precaution was taken on board the steamer to hear any fog signal that might be blown from a;lother vessel. No fog signal was hear<!''frotft this schooner until she was seen, then close at hand, on a course: crossing the steamer's bow, sailing free. The steamer at once ported to go under the schooner's stern, and reversed her engines; but the vessels Clime violently in contact, and the schooner shortly sunk. The witnesses from the schooner l3aythat they heard the fog-whistle of the steamer, and blew their own fog-horn; that the steamer was known to be approaching, but could not be seen until right upon them. The fog-horn blown by: the sqbooner WIlS, an ordinary tin horn. No mechanical horn, as' required by the statute, was used by the schooner; nor did she ,have any such hom on board. On the part of the schooner the contention is, first, that
by Edward U.Benedict, Esq., of the New York bar·. , .'