the bond to the marshal does not necessarily and in effect afford any security to other creditors, and the vessel is thereupon discharged, and as no legal notice was published affecting anybody, I doubt whether the doctrine of quasi parties or privies, as to a cause in rem, could be properly applied to the insurers in this case, who were not actual parties to the former record. In Gelston v. Hoyt,3 Wheat. 246, 271, a stipulation for value was given. It is not denied, however, that the insurers had full, actual notice of the former suit. There can be little doubt that they were virtually represented in it, so far as they' desired to be repre'sented. An additional bond was voluntarily given by the vessel for 63,000 when additional claims for personal effects and new parties were brought in; and there is no reason to suppose a like additional bond would not have been given for the insurers, had they desired to have their claim secured in the same suit. Their abstention from joining in ,the cause, in a formal manner, for nearly six years, ought therefore to ,be regarded as a voluntary one, as stated in the former decision. This, without reference to the other points, ougbt, I think, for the reasons in that respect stated in the former decision, to debar the insurers in ad'miralty, after so long a period, and after the close of the former litigation" from any revival of the same litigation de novo. The other points raised seem to me immaterial, or to have been pre'viously considered. The new matter is therefore held. insufficient to sustain the libel.
tI. THE MONMOUTH
HOWARD 'U. SAME.
Court, S. D. New York. January 9,1891.)
CoLLI8ION-NEGLIGENCE-D.uu,GE FROM STEAMER'S BWELLS-LIABILl'rY.
A steamer which passes other boats at high speed, so near as to damage them by her displacement waves, is liable for such damage. The steamer M" a passenger-boat plying in the harbor of New York, whose usual speed was 20 miles an hour, passed within 1,000 feet of a fleet of about 30 canalboats in tow of tugs. The displacement waves of the M. caused the boats of the tow ,to strike against each other, whereby one was sunk and another damaged. The steamer on this occasion did not notice the tow, and did not slacken her speed. The evidence indicated that the M. was accustomed, in passing near small boats or tows, to slacken speed or sheer away. It also appeared that the present accident was probably due to inattention on the part of the officers of the steamer to tb'e tow. or to an erroneous estimate of its distance. The tugs were unable to turn the tow so as to take the waves stern on in the short time that elapsed after the M. Wa,s Been coming. No regulation required the tugs to signal, and so large a tow in broad day was a conspicuous object. Beld, that the steamer was solely liable; for the damage.
SAME-FAST STEAMER-DuTY IN PASSING OTIlER'CRAFT.
Reported by 'Edward G. Benedict, Esq., of the New York bar.
Suits fordamages occasioned folihelants'vesse1s by swells of the steatner Monmouth. . :,B1Ji.k:r, k Httbb(wd, (Mr. Oromwell, of counsel,) for the Doran. . Qy1(l,'f!.d, .& Zabriskie, fat: the Sarah. Forest and Mr. for the Monmouth. ; Bright, BidcllJ6k Ward, for the tugs.
: J. The above libels were filed to recover for damages sustained"bY<the canal-brnj,t- Wllliam Doran and the canal-boat Sarah, caused wjtveacfrom the steam-boat Monmouth in the fore1890, while she. was making her trip from Sandy Hook ,pjer::N"O'. 8,Northri",er·.. The canal-boats were part of a fleet of about ,3Q P03ts,.in tiers of 4 each, lasbed together in the uSllal way, and com;l,l;p, ;theJ>ay from to New York in tow of the otherbelpers, upon hawsers about 500 feet long. The were the il1sideboats of the third tier. .The tow was its way slowly against the fhst .of the .ebb..tide, at. the rate of not or amilean,dahalfanhourj and at the time of the acci..Jit.tle ,tothewestw!\.rd. of the Bell or black buoy, and about 'three-fourths of a mile to the southward of Fort William, heading fQr,thEl Nof;tP.river. Tl;UlMonmouth.isone of three large and swift passen,Quilt for to make close,connections with the railroad trains at Sandy Hook in the transportation of pas:3engers to .and from New York. Each steamer makes three round trips daily. The passengers in 1890 were about 400,000; anincrense of. 110,000 above the number for 1889, due to the better service and quicker time. The displacement waves of these steamers, which make their trips of about 20 miles in a few minutes over an hour, is well known to 'be dangerous to small boats, if the steamers pass near them and at full speed. Their usual practice has been to slowwhen .near small craft, & tows 'of this character, or to sheer away from thom, if they lie too near their course. On this trip, the tow was not by any of the officers or seamen of the Monmouth, and they testified that any tow near enough to be likely to suffer damage would, been noticed.. The other witnesses, while they differ considerably in the estimates or the data they asto the the Mdnmouth passed them to the westward,Dlostly 'estimate 'lier as not more than 600 or 700 feet distant; the extremes varying from one-half to twice !that distance. There is no doubt that the '.When passing the tdw, was going at least at her usual speed ,o/about 2Qmiles an hour, and that ber displacement waves, which ran at an lftngle of about lOur points, were such as to cause "the forward. tier of the tow, attached by four hawsers to the tugs, to "break 1908& from the rest of the tow to which they were lashed. The ;boatS were described by:,the witnesses 8sjumping up on each other, and :pouhdiiig:each other, lVP\!e the forward tier was submerged by, the first "wave. ,The Doran was hroken in· 'her bow, and receivedsomeinjuries astern, causing her to sink in a few minutes. The Sarah was also damaged. Another distance ahead of this, also received sqme
According to the defendants' evidence, the swells of various I steamers at the dock at the Narrows were found upon measurement to be' ofthe following height: Of the Monmouth, passing three-eighths of a mile; distant, 17 inches; (If the Sandy Hook, three-eighths mile distant, 18 inches; of a German steamer, one-half mile distani" 24 inches; of an English steamer, the same. This, however, was in very deep water. For the steamer, it is contended that she was pursuing her usual course, heading for pier 1, North river, and going a little nearer to the Statue of Lib-, erty than to the Bell buoy. This would make her to have passed more than 2,000 feet distant from the tow, if the latter was within 500 feet of the Bell buoy, as the witnesses allege. n has been urged with great ability and force by the counsel in this case, as well as in the case of The Majestic, post, 813, that such a distance' from tows or other small craft is sufficient, and more than sufficient, to' answer all the legal obligations of steamers in passing other boats; thllt' though the rivers and harbors are a common highway for all, all have an equal right, yet this very equality of privilege excludes such" methods of making up and navigating tows as impose unreasonable r&., strictions or obstades in the way of passenger trausportation; that in the', increase of commerce, the growth of population,and the needs of pas-' senger service, quick dispatch, such as the Sandy Hook boata oBer, is an; indispensable necessity; that the waves of those steamers, 1,000 'feet' from the steamers, are no greater than those made by ordinary gales;; that tows likt> the present could not bear such ordinary waves storms, and would be deemed unseaworthy to encounter them; 'that sometimes two of such tows in succession, as in this case, str£1ch over nearly half a mile, and proceed at so slow a pace as to become um'easonable obstructions; and that it is unreasonable that such a. raft 'of boats, unseaworthy in their character and in, their make-up as a mass,' should be held entitled to snch privileges as to preclude a fast passen-' ger service, and thus virtually to monopolize the use of a common high':'; way of commerce, and to prevent its beneficial enjoyment by the public' in a rapid passenger traffic; that, if such tows also serve the public good in the form of cheaper transportation of some of the necessaries of.dailyi life, they may be, al1d should be, modified in their make-up, in the character of the boats used, and in the power and speed of the tugs that haul them, so as to become reasonably compatible with the other gen.; eral needs of the public. . Whatever force there may be in these views, I do not think, upon thefacts as they appear in this case, that there has yet arisen any such act-' ual conflict of rights or incompatibility in the mutual claims of these op-' posiug interests as calls for any new application of familiar rules. The. evidence shows that though at least eight of these fleets of tows usually: i pass daily up and down the bay, and eighteen trips are pet- \ formed daily by these fast Sandy Hook steamers, or passing such· tows under every variety of circumstances, only two accidents like this ha ye -bel;lu previously reported during the three years that fast steamers have been running; and that accidents have been avoided·'
by slowing when passing tows too near for full speed, sometimes without previous danger signals from the tugs, and sometimes upon danger signals received from them, Under this usage, there have been no material delays upon the steamers' trips, no connections missed, no complaint of tardy arrivals, and no evidence of inconvenience to the public. On the so regular and efficient has been the rapid transit service that a very large and rapid increase has resulted in the public patronage. While these facts bear the highest testimony to the general sk,ill"care, and prudence of the officers in command of these steamers, they are equally conclusive that such care and skill are ordinarily sufficient to avoid injury to tows like these, which for at least 15 ye5TS past have been accustomed to navigate the harbor upon the same routes and by the same methods pursued in the present case, and that, with such ca,re, both may enjoy their common privileges without material injury or inconvenience to each other. The same facts make it probable, also, that the present accident was due to inattention to the tow, through some special causes, or to an erroneous estimate of its distance. The ste;tmer's witnesses are at a great disadvantage in testifying as to the distance, since they did not notice the tow at all that daY,and can only testify as to their usual course and practice. I do not find, however, that the u$ual course from buoy 18, off Bay Ridge, as stated by the quartermaster, viz., to head for pier 1, would, according to the chart, carry the steamer nearer to Liberty island than to the Bell buoy, but, on the contrary, about three-fourths of the way over towards the Bell buoy, or about 450 yards from it; so that, if the tow was from 300 to 600 feet west orthe buoy, the steamer would' have passed within 750 or 1,000 feet of the tow. This approaches the libelants' estimates quite as nearly as is to be expected in estimates of distances on the water. There had also been some fog in the lower bay that morning, hindering the steamer in reaching the starting point; and, although the quartermaster says that ,that caused him no delay at the start, no memorandum was kept of the time of departure, and the steamer arrived at pier 8 on time. The weight of testimony and of probability, upon all the evidence, is that the steamer, through some preoccupation of her men, or false estimate,of distance, went nearer than usual to the tow, and nearer than was safe at full speed, and that the accident arose from the failure to use the customary and requisite caution when going so near. She must therefore respond for the damage. The Morrisania, 13 Blatchf. 512; The Dr(!W, 22 Fed. Rep. 852, (affirmed, on appeal;) The Atalanta, 34 Fed. IWp. 918. If but asing-Ie boat among so many had been injured by the pitching, there would have been room' for the contention that her indue to her specially weak or rotten condition; but the violence of shock is attested by the breaking of all the lines that attached the tier to those behind, and this precludes that defense. I do nQt think the Raritan and the helper tugs in this case can be charged :witb.anylegal fault. They could not turn the tow in the short time after the Monmouth was seen coming, so that they might take the wave astern; as would have been their duty if that were practicable.
The Majestic, infra. A half hour, it is said, would be needed to turn such a/tow. She might, indeed, have signaled; but no regulation required signals, and in broad day so large a raft of boats in tow was a very conspicuous object. Its character was perfectly well known to the steamer, and the pilot of the tug had no reason to suppose any signal needed to the Sandy Hook boats for s,+ch a tow. Decrees for the libelants against the Monmouth, with costs, and for dismissal as to the Raritan, with costs, with an order of reference to compute the damages.
THE MAJESTIC.THE NANNIE LAMBERTON. NJWlON
THE MAJESTIC and THE NANNIE LAMBERTON.
(District Oourt, S. D. New York. January 9,1891.)
OOLLISION-NEGLIGENCE-DAMAGE FROM STEAMER'S SWELLS.
A steamer which passes other boats at high speed, so near as to damage them by her displacement waves, is liable for such damage. See The Monmouth, ante,
SAME-TOWAGE-DuTY OF Tow ON APPROACH OF STEAMER.
Where the pilot of a tug in charge of a tow sees a large vessel rapidly approaching. and knows· her displacement waves are dangerous, it is his duty to turn the tow so as to take the waves end on, and, failing to do so, the tug will also be held in fault.
In Admiralty. Suit for damage to libelant's boat, occasioned by displacement swells of the steam-ship Majestic. Hyla.nd &: Zabri8kie, for libelant. Lord, Day &: Lord,for the Majestic. McCarthy &: Berrier, for the Nannie Lamberton. BROWN,J. On June 4, 1890, as the steam-ship Majestic was coming in from sea, her displacement waves struck the tug Nannie Lamberton, which was towing two canal-boats from the Erie basin to Hoboken; one boat being lashed on each side of her. In the high swell, and in the surging of the boats, the tug tell so heavily upon the side of the plaintiff's boat, which was on her starboard Bide, as to break several of her streaks of pine and oak, for which damage the above libel was filed. This case, in its general aspects, is quite similar to that of The Mon"Irwuth, tried shortly after this; and I need not repeat here what has been said in the decision of that cause. Ante, 809. In some particulars this case differs from that of The Monmouth. The Majestic was golReported by Edward G. Benedict, Esq., of tile New York bar.