,Q.Tha.t at the making of said contract of insurance, and from thence CQntlnu.ally ,thereafter. until the ,said steam-boat .was' ,lost, as aforesaid, libelant walil interested in the said steam-boat as owner thereof to the full amo1Jalt insured 'by the respondent, and all other insurers, to-wit, $20,000. ' 10. That, if respondent is the facts of this case, for the full amount of the policy herein sued on, the said respondent is entitled to a reduction therefrom on, account Of premium note unpaid, partial heJ!etQfore ,paid, and proceeds Of sale of cabin and outfit, ill the sum ()f $.1,462.64, leaving due ou the said policy $5,537,.36, as shown by the commissioner's report in the record of this:case, which report is notcolltested. That proofs of loss under the policy were duly made and presented to the respondentonthe.22d of and the amount oflolisbecame dueaud payable March 23, 1889.
C()NCLUSIONS OF LAW.
isiiable to the libelant for the full amount Of the policy by the said company on the steam-boat infavor of libell;lI;lt,subject to the deduction mentioned in the lastfiilding of fact,' witbjnierest thereon from March 23, 1889, at 5 per cent. per annum until Haid. ' " , 2. ,That libelant should haYea,decree against the respondent company fOJ: ,with interest at 5 clllnt. from March 23, 188\:) paid, and for alJcosts oC suit.
1.', That the
BOYER'll. THE CoNNECTICUT.
New YOT1c. January 21,1891.)
., MARITTME TORTs.-DAMAGE, Jl'ROM STEAMER'II
Ontha'26th of Itl89, libelant's lighter, while lying at a pier at tbe foot of South Third street" in the East river,' 'loaded with sugar), was' Up!l6t, and her cargo lost, lItnd thil\ suit was in consequence broll:ght,against tne steam-boJlt Connecticut, libelant alleging that by the latter's nilgligent navigation, in passing too near the piers. at a high rate of speed, she created'a swell, which caused the accident. , The main defense was that the,swell which did ,the damage sued for was not made by tbeConnecticut. On the evidence it held that the careening of the lighter was callsed "by 'an extraordinary and dangerous swell made by the passing of the ConneC(ticut too, near the piers, ,at, high sp,eed, and that that vessel was in consequence liable for the dal;ll.age. . "
. . .. i '
InAdmiralty."Suit fbr:damage caul\ed by the upsetting of the lighter Vigil. ;. ' , . ,.' , Onrpenter'&M08Mr' and'B.'D.' Benedict, for the, libelant. 'Miller,' Peckha1n} &:DiXerh l for the Connecticnt.'
by ,1l:dwardG. Benedict. :Eaq./ot the
TfIE . CONNECTICUT.
. BENEDICT, J. . This to.rllCoVer of the steam-boat Corinecti- , cut on the 26,th of June, 1889, of the lighter Vigil, lying outside.tbe at the lower side of South Third street pier, in the East river,Joa.qedwitbsugar, whereby the deck-load of the .lighter was thrown into the water, causing a loss of some $20,.000. The libelant his loss to negligent navigation Connooticut,in that she passed too near to the pier, and at anjmproper rate. of speed, and thereby created; extraordinary d/lngerous swell,which caused this lighter to dump The answer sets up various grounds of defense, some of which, involving li.ttle difficulty, will be first disposed Among other things thA answer alleges thatthe the lightE'f lay was exposed and dangerous.:J3utthe,evidence shows that the lighter .lay at a plaoewhere lightel;'S with similar h/ld for ,many years lain without receiving any dalpa,ge from the· of the Sound bQa,ts,. which paSs the place twice a day. The answer, further alleges· that .t])& lighter was insufficiently fastened along-side:thesteamerSardon,ian:; but it is proved withoutcontradiotion that. well.fastenedbynew lines. It is !luther charged. that the lighter 1\fa,snegligEl nt in having no one. on board of ber on watch·. But i$ that the mate was on board, and duly attentive.T4e ans\y,er. furtheraUeges that the lighter was oyerloaded. But the, prO,Oi is that this lighter had carried before; that she had hl*ln loaded to the draft of 13 feet of water ,withsafetYi and that ,drawing only ,12 feet.. It is lI.lso charged that the cargo of the ljghtill'Wali po11properly that she had a greawr load upon deck The prom: ,shows that she was about 25 email@example.com hold was filled with ..of the beaviest purt of her cargo; .that the deck-load was stowe,d way; that she had ,taken this very cargo On ,poarq at Hamiltoa ·ifel'fY" and been towed thence to 80Qth Third street in safety;' ,ud that she had lain with that load aboard at South Thirq, street piel' from the rooming of the 25th of Jt;lne to the aftemoonof the 26th ofJune. dUring which time the:Sound boats had UP and ,down twice, without doing any damage or causing apprehension to those incbarge of the lighter. The state of the proofs .hllS .not permitted mucbstress to be laid upon: .any of these de'The main ground of defense .is that the swell which aid the damage sued for was notca.uBed. by the Connectic)lt, and over this defense the cont'roversy is IndispOl'ling of the question, whichappears to me also to be:tha:decisivequestiQn in this case,.namely, whether the swell which caused the <ilamage inquestiou was caused by the steamer Connecticut, I t4e followingfMts;The swell that careened$e libelant's lighter wascaulled by one of. th.e two large Sound steam-boats which passedthrpugh the ,EastriverQn the afternoon of June 2f)th·.. :No other vesllel capable of producing such a swell was ili the lQcality at the time of-the. accident. On the afternoon of that day the Con,necticut wasd,elayeo· at her pieri so that was the last of the bQatsto pass.rt:h.rought1:le East:!river· ,The accident occurred
after, and alinost immediately after, the Comiecticut passed the pier where the lighter layalong.:side the steamer Sardonian. On this after'; noon the Providence, contrary to the usual order which the. Sound boats follow, .passed through the East river next ahead of the Connecticut. In addition to these· facts, it is important to consider another fact proved in behalf of the Coimecticut by witnesses who made personal observatioIls, watch in hand, namely, that swells caused by the Sound boats when passing South Third street on the flood tide reach that pier in from one minute to one minute and eighteen seconds after the stern .of the boatc8using the swell passes the pier. This fact I recognize as of the 'utmost importance,for it seems to me to make futile the contention that has been made in behalf of the Connecticut, that the swell complained of was made, not by the Connecticut, but by the Providence; for not only is it proved by some eight witnesses who saw the accident that the Connecticut, at the time the swell came in, had just passed the pier at which the'lighter lay, but there is in the case conclusive evidence to shoW' that the Providence, when the Connecticut passed this pier, was so fa:r:ahead of the Connecticut that the swell of the Providence mnst ,have reached the pier, and been wholly spent before the Connecticut arrived. For many witnesses who saw the accident say that the Providence had passed this pier 20 minutes before the swell came in, and in order to have been the cause of this swell the Providence must have been, at the time of the accident, not to exceed 2,500 feet above the pier, where no witnesses in behalf of the Connecticut put her. At that time the great weight of evidence is that the Providence was much more than two minutes' run ahead of the Connecticut, and unless the Providence wall within that distance of the Connecticut, according to the evidence of the claimants, above alluded to, the swell that caused the accident could not have been caused by the Providence. Ihdeed, taking into·consideration the elements of time, distance and speed, as given in the testimony, I think the conclusion necessarily follows that at thetitn'e of the accident the Providence was as far above South Third street pier as Bushwick inlet, and that the swell that caused the lighter to careen was no swell of hers. Moreover, there is in the testimony of the witnesses called by the libelant a mass of direct evidence to the effect at the time of the accident the Connecticut passed South Third street, at a high speed, close by the piers, and caused the swell that careened the lighter. These witnesses (some from the Sa.rdonian, some from the shore) seem honest and intelligent, and five of them are wholly disinterested. They saw the Connecticut pass, and they saw that an , extraordinary swell followed her passinp;, and they saw its effect upon the lighter. Nor is it improbable that the Connecticut should have passed as these witnesses say she did on this occasion. The record shows more than one instance of a Sound boat passing close to the piers in this locality, and a reason for so doing is found in the fact that on a. flood tide a boat keeping close to the Brooklyn shore in this locality derives more advantage from the tide. Moreover, on this day the Connecticut had been delayed at her pier, so that she was behind instead
of ahead of the Providence, her usual place, and she may,.withQut much difficulty, be supposed to have been desirous to make up lost time. Furthermore, the log of the Connecticut shows that on this afternoon she actually made the distance from her pier in the East river to Hell Gate in fast time. Her log shows that on this afternoon she ran to Hell Gate in 30 minutes. On only one other trip, according to. the log, did she make this distance in so short a time, and that was a westward trip, on July 18th, when she also made it in 30 minutes. 'fhe testimony given by numerous witnesses who saw the accident, coupled with the facts already alluded to, afford, as it seems to me, convincing proof that the cause of the swell complained of was the passing of the Connecticut close to the. piers at high speed. As against these considerations, and the testimony that has been 'alluded to, the claimants produce the master, pilots, and wheelsmen of the Connecticut, who testified that on the afternoon of June 26th the Connecticut, when she passed South Third street, was on the New York side of the channel; that she was under a slow bell from the time of passing Grand-Street ferry until she passed South Third street pier; that she stopped below Grand street, and it was not possible, therefore, for her to have been at full speed when she passed South Third street, as she could not regain her full speed in that distance. This testimony is in direct opposition to the testimony of the libelant's witnesses, who say they saw the Connecticut pass close to the Brooklyn side, and at high speed. One way in which to reconcile these conflicting statements is to suppose that the master and crew of the Connecticut have mistaken the trip, and speak of what occurred on some trip other than that of June 26th. Such a supposition is easily maintainable from the fact that the Connecticut made daily trips through the East river; that the accident to the Vigil was unknown to anyone on board the Connecticut until some days, and probably a week or more, after it happened; and that such occurrences as the witnesses from the Connecticut speak of are likely to occur on any day. Under such circ1llmstances the coufoundingof one trip with another is entirely possible. It can be said with entire justice that testimony concerning occurrences, such as happen on many trips, when given by witnesses whose attention was not called to the matter until several trips had intervened, is by itself of little weight compared with testimony of witnesses having no connection with the controversy, to whom the occurrences of which they speak were not in the ordinary routine 'of their business, and whose attention was directed to the facts of which they testify at the time of their occurrence. But in confirmation of the testimony of those in charge of the navigation of the Connecticut, that the Connecticut on the afternoon on June 26th stopped below Grand street, and, .therefore could not have· been at full speed when passing South Third street, the pilot, Vanderwater, and a deck hand, Crawford, of the ferry-boat Idaho, which left Brooklyn at 6 :50 P. 11. on June 26th, are produced, and testify that while on that trip they saw the Oonnecticutstop below But while the testimony of these issi1tlicie.nt to prO\le that on some. day. while the
was passing from Brooklyn to New York, the Connecticut stopped below Grand street, an examination: of their statements makes it plain that they have no actual knowledge that the stoppage which they speak of occurred on June 26th. 1'0 supply this defect Mr. Chappel, the superintendent of the ferry, is called, who produces an entry made by him in. his memorandum book, as follows: "Vanderwater made Connecticut stop 7 P. M., June 26th, 1889. Want him in office to-morrow." But Mr. Chappel had no personal knowledge of the fact that the Connecticut stopped on June 26th, and I.do not understand him to swear that he madethef:Jotryabove quoted on June 26th. The entry reads as if made on a day subsequent 'to the 26th, and its language, as well as its position in Mr. Chappel's memorandum book, leads to the belief that the date stated in it was furnished to Mr. Chappel after a claim was made upon the owners of the Connecticut for damage done on June 26th. As further strengthening that the trip of the Connecticut on which the accident occurred was a different trip from that spoken of by the witnesses from the Idaho, it is. to be noticed that the trips described,d,or not agree in their incidents. One difference, among others, may,be'Jmentioned. The master and pilot of the Connecticut, giving So reason fortht' stoppage, which they testify to, say that they stopped to allow the passage ahead of the Connecticut of a tow, consisting of a tug, with a,sand-boat along-side and a schooner astern on a hawser, and the evidence of the wheehnandf the Connecticut greatly confirms this description oUhe tow which caused the Connecticut to stop, for he says that he saw the tow, and, thinking the schooner on the hawser was from his place of residence, he went to the rail to see her, but on looking discovered that it was a different schooner. But the tow which the witnessesfrom the Idaho say made the Connecticut stop a Pennsylvania on one side and two on the boat, with five'<:anal-boats other..The discrepancy seems to point strongly to a confusion of trips. It is noticeable jnthiscomiection that while the answer alleges that a ferry-boatw8s ,crossing from New Yorkto Brooklyn when the Connecticut stopped,. no witness from any' such Jerry-boat is produced, but witnesses from the Idaho are produced,:to the presence of which ferry-boat noallusionismadein theanswer.';StillJtuther, as bearing'ontha question whether Connecticut spQken of by the. witnesses from the Idaho was the 'trip on which the acoident occurred, it is to be observed that thewitneaseafrom'thelqaho say that the Connecticut stopped below Grand street when the' fervy..boat was on the 6:50 trip from Brooklyn. But by the, log-book of theConnectieut, put in evidence by the claimants; it appears tbaton the trip of June 26.th the Connecticut was at Hallett's point at 7p. M., and to cover the distance from Grand-Street ferry to Hallett's point between 6:<50 and 7 o'clock would compel her to move at the rate of 30· miles an hour. Clearly; then,ilihe Connecticut was at Hallett's poip,tat7 P. M·.Qn J1.lcne.26ithplS her log-book shows, it .could not b",on: rthattrip that she was seen to, .below Grand street at 6:50 P·. M. by, the witnesses from the Idahol! .Still ft:l'rther, as bearing on ,the 26th, the Connecticut stopped question whether Qn the afternoon 'Of
below Grand street, notice must be taken of the engineer's log, kept by the engineer of the Connecticllt on that trip.; In this log there is no entry of stopping the engines on that trip. According to the engineer's log, as explained by him"o,n tq.p!!,(Jwle 26th the engines of the Connecticut were not stopped at all; an were slowed for only one or two minutes before reaching Providence river. In this stateof the testimony it can hardly be doubted that !the weight of the e"iClCence is that lighter was upset by a swell caused by the Connecticut. But it is said the Connecticut, and now proauced,afl'o'rdli the ship's log kept on positive and indisputable evidence thatthe,Connectic\1t was stopped below Grand street on July This lQg'contains an entry made by the pilot, Penn, in the log of the voyage o'f:,July 26th, as follows: "6:51 P. M. Slowed at Point Hook and stoppedat'Grand street." ,On the part of the libelant it is insisted that the cqatacter of this and other entries made by Penn, as they appear in the log, and the effect of certain alterations of figures which appear in the engineer's log, show that the logs have been tampered with in order to support the statement of those navigating the Connecticut, that on June 26th she stopped below Grand street. After a scrutinY6f the entries as they :standintbe ship's log, and the alterations of figures that appear in the engineer's log, I am forced to the altered. Noexplanaconclusion tllat these logs tion of the corrections of these logs by testimony has been attempted, but the suggestion is made that the lUtetations of figures in the engineer's log are simply corrections of mistakes, and that as to the entry in the ship's log there is no evidence whatever to contradict the statement of Penn that he made the entry in the form it now has on June 27th, in the regular course of business, confirmed by the master that when he signed the log it was in its present condition. While I am not prepared to say that there is sufficient in the character of the entries on the ship's logs by themselves to justify ll. conclusion that these entries were not made when Penn says they were, yet, coupled with the evident alterations that appear in the engineer's log, indiCating design, there is enough in the character of the entries to excite grave suspicion; Absence of motive is relied on to overthrow this suspicion. But all fa!Jliliar with litigation of this character know that mere desire for the success of their ship in a litigation affords motive sufficient to induce seamen, not only to make false statements under oath, but sometimes to falsify the log. Perhaps all that it is necessary to say in regard to this branch of the case is that the log does not, in my opinion, strengthen the case of the claimant. My conclusion from the whole case, therefore, is that it satisfactorily appears that the damage sued for was caused by an extraordinaryaIiddangerous swell made by the passing of the Connecticut too near the piers, athigh speed. A d6(lree must accordingly be entered in favor of the libelant, with an order of reference to ascertain the amount of.the loss.
N. D.Ne'Jl'Yw7c. Marcb,1891.)
AotCong.Jline 29, 1888, "to prevent in tbe barbor and adjacent waterBof' New York oity, 11 declares that "tbe placing, discbarging, or depos.iting . ** .«)1' of any kind, * * * in the tidal watllrs of the harbor of New York or It.S adjacent or tributary waters, or in those'of Long Island sound, 'within the iimiti:l whioh shall be prescribed by the su p6i'yis<lr of the harbor, is; hereby strictly The s,upervisor ma,de an order ,that tne depositing,of such refuse, etc., .tll)ust take place east of meridian 78° 55' 56" W.(which passes thi'bugh the Scotland light-ship) and south of parallel 40° 31' N." ,Beld, that the c>J,'der lqust be 80 oonstrued as to allow dumping at all points east oftha named meridian, or south of the named parallel, and not to oonfine it to points that are both east of the mel'idian and south of the paralleL
'In A'dmiraTty. These are libels filed by the United States, under the act of June 29, 1888, (25 St,'at Large; '209,) to recover penalties for <:lumping mud, dredgings, etc., into the waters of the Hudson river.. 'l'he first section of the act prqvides "that the placing, discharging qrdepositing, by any process or hI any manner,of refuse, dirt, ashes, cinders, mud, sand, dredgings,sludge, acid, Or any' otnermatter of any kind, other than that flowing from streets, sewers, and passing therefrom, in a liquid state, iIi the tidal waters of the har90r of New York, or its adjacent or tributary or, in thoseof Long)sland sound, within the limits which shall be prescribed by the supervisor of the harbor, is hereby strictly forbidden." .Violations of this section are made misdemeanors punishable by imprisopment,or a Jine of not less than $250 or more than $2,500.. The supervisor of the' harbor appointed' under this act issued the following order purslluntto the provisions of the first section: "Tile deposit; of refuse, 4irt·. ashes, cinders, mud, sand, dredgings, slndge; acid, or matter 9f any kind, other than' tha.t flowing from streets or and passing therefrom in aliqujd state, must take place east of meridian 78" 55' 56'1 W., (which passes through the Scotland light-ship,) and south of parallel 40° 31' :&." . . ,.
The point where the parallel and the meridian intersect is some three miles south of Ooney.islandand five miles east of Sandy Hook. In the summer of 1890 the tugs,in question were engaged in towing mud scows loaded with dredgings, taken from the channel of the Hudson river, to a point near Stone House dock, which is opposite New Baltimore and a few miles south of Albany. The point where the scows discharged their loads was about 8 miles east of meridian 73°55' 56" W., and about 125 miles north of parallel 40° 31' N. The work was done nnder the auspices of the state of New York, with the design of improving the navigation of the river. The mud taken from the channel was deposited in