THE OOE F. YOUNG.
which shall be ascertained to be due to the Shubert for damages will be subject to the deduction of such sums as maybe paid to the Shubert by the Einar and the Ivanhoe, under the decree of the district court of th.eastern district of Pennsylvania.
THE COE !RONs
Court, S. D. New York. January 17, 1891.)
COLLISION-STEAM AND SAIIr-DUTY Oll' SAJL.VESSEIr-BEATING OUT TAOK.
A sailing vessel, beating ip. a channel, is not obliged to run out her tacks to her disadvantage in the tide, provided she does not mislead or embarrass other vassels that are bound to keep out of her way.
The tug C. F. Y. was going up the North river on a clear day. A small sloop was beating up-stream ahead of her. The tug had no lookout except the master at the wheel. The sloop changed her tack when some 1,000 feet from the New York shore, in order to keep in the flood-tide. The river there is about 8,000 feet wide. The tug When the sloop went about was more than 150 feetdistantfrom the sloop. The tug collided with and sank the sloop, and was M14 solely liable for the collision in failing to keep a proper lookout. .
In Admiralty. Suits for damage by collision; the first suit being for loss of the vessel, the second for personal injuries, and the third for loss of personal effects. Hyland & Zabriskie, for libelants. E. G. Benedict, for claimants.
BROWN, J. In the forenoon of April 19, 1890, as the steam.ltugCoe F. Young was going up the Hudson river with the last of the flood-tide, when opposite Twenty·Sixth or Twenty-Seventh street she came in collision with the sloop Mary, which was: beating up.river against a north· erly wind, and cut her in two, damaging also the personal effects of two of the libelants, and injuring the libelant Osborn, who was thrown into the waierby the blow. Very shortly before collision the sloop had tacked on the New York side, and had filled away on her starboard tack, heading, as her witnesses allege, about four points above a line straight across the river. There is considerable conflict in the testimony in regard to the direction of the wind; whether the sloop's long tack was her starboard tack or her port tack; as to the distance of the poiht of collision from the New York shore; and whether the sloop, as the defendants allege, came about very suddenly, and almost directly under the bows of the tug, without running out her port tack,so as to render collision unavoidable. The last point is most important, the others being mate-
JReported by Edward G. Benedict, Esq., of the New York bar,
on each side,
Taking all the evidence together, froID the end of the New York docks. That the distance is ,much greater than that stated by a number ofthe libelants' witnesses is to be inferred, not merely from the testimony of disinterested witnesses for the defendants, and the probabilities of the case, but from the testimony also of the libelants' witness Sands, who. though eviqently mistaken in some parts of his testimony, is not likely to be much mistaken as to the considerable distance he had to row in a 13mall boat, stated as about 800 feet, in picking up the first debri8 the wreck. ' The libelants' witnesses mostly testify that the sloop did not tack until she had run within 150 feet of the New York docks. Several ,of the qe(endants' witnesses say that she tacked far away from the docks, and 'near to the tug. The captain of the tug says thatwhen he first noticed the sloop she was on his starboard hand ofLFourt.eenthstreet \Ipon her tack to the eae;tward, and from 100 to 150 feet eastward of his coursejand that when she came about oft' or Twenty-Eighth street she was about, the same distance eastward of him, having twice in the interval come up into the wind, an,fl.1illed aWay The'captain is evidently mistaken in his testimony. The sloop, with the wind,/l.Sit was, copra not h'ave 90me up river from Fourteenth street to Twenty-Seventh street in the way he states. It was doubtless off Twenty-Third street, instead of Fourteenth street, that he first saw this SChO<,lller" the answer,*lleges, Ibhe was then 100 or 150 feet away, more, than that distance 'away from' him when she tacked.' AD agree that at the time cif collision she had come ahout pletely, and that her sails were full. It is not material in this case whether the sloop ran as near the New,Xortr shore as she might have done, or not. There was more of the flood-tide out in the stream than :Y The,aloQp had· the right to avail herself of this advan,alungthe in by shortening hertacka" provided she did not ""Qr ,embarrass other to keep out of her way. I tjlipk tp.e :tug did have abunda,nt time and space to have kept out ,Qf the way gf the sloop fro.m the time she tacked, had any proper watch ,be,en kept ,up9P h.er movements. There, was no lookout, Qn tpe pilot alone; and. there is that hl jum,poo to, the w:heel colliIlion ; in other words, was not watchsloop?s movements. The tug was uninCUl;nbl3;red, she could be :yer,y handled, apd she could be n1aneuvered certl!-inly as easily ,8li!she excee\led her Whether tiW sloop ran out heLtack l!-s; izumaterialin case, becallse cause <,>fthe real cause was the failure a proper 100kout.iHad this been done, I am,sat,isfied the col,,»,si<m, woulqhava, be,ellavoided., , "' "r allow thEj libelant Osborn $545 ,qamages for personal injuries apd effects, with costs. A reference may be taken, to compute the damages in the other cases. '
ri;J only as they affedtthat. 1'heriv'er there, from the ends df the docks
is about' 3 ;000 feet
rdilrii·, 'sltisfied that'thelcdllision took! :place about 1,000 feet
SU'l'TON '11·. HOUSATO.NIC B.'
Oourt. S. D. New York. FebruarvW, 1891.)
WHARlI'AGE-UNSAFE BERTH-VESSEL'sRIGHT TO REFUSE. The master of a vessel, Oli learning 'of obstruotions likely to
injure his vessel at her designated berth, is in refusing to, go to such berth until iUs IW¥ll' safe, and may hold the conSIgnee for the delay. ' '
S; DEMURRAGE ....CONSIGNEELuBLE.
. Und6l' a bill of lading which states that consignee is to :PAY the freight and.discharge Ilupject to the conditions of a bill of lading which prpvides for the. parment '01. dethurrage by the consignee, such Consignee, on' receiving the cargo without objeotipn,is liable for demurrage, though caused by a third party whom he has en. gaged to discharge. 8. 'SAlIlE-GUARANTY-DEPTlI OF WATER. . ., A slllpulation in a ,bill oflading guarantyhig a certain depth of water to the vessel at her discharging berth renders such consignee liable for the delay caused by. the lack of such depth.
In Admiralty. Suit to recover Hewry D. Hotchki88 and Mr. Maddo:c, for libelant. Daniel Davenport, for respondent.
BROWN, J. In actions brought against wharfingers for damages caused to vessels by obstructions in the slips and along the docks, it is a good defense,' wholly or in part, that the vessel had notice or the obstruction, and did not exercise reasonable care and diligence in avoiding it.' The Stroma, 42 Fed. Rep. 922; Christian v. Van 1'a88el, 12 Fed. Rep. 884. And see Cr088lln v. Wood, 44 Fed. Rep. 94; The CaUiope, L. R. 16 App. Cas. U. From this it followsthat when the master ofthe Ives, which drew 15 feet, ascertained that at the berth where the ship was directed to go there were stones iIi the mud within a less depth than her draught of water at low tide, he was justified in refusing to go to the berth until it was mnde safe. He was not bound to take the risk of running upon the stones, or of settling down upon them, and of thus testing whether the mud would yield so much and so easily as to do his vessel no harm. Mr. Olds was the agent of the defendant railroad company, the consignee of the coal, and also of the New England Terminal Company, which was the lessee of the wharf, and had the sole control of discharging vessels there. It was no doubt the duty of the latter to keep the slip free from injurious obstructions. The bill of lading shows that the cargo of coal was received by the defendant through Mr. Olds as their agent under this bill of lading, and that Mr. Olds.acted in their behalf in noting the time of arrival and of discharge by his indorsements thereon. The the coal into the defendant's bin, and the terminal evidence shows a detention of the vessel 10 days beyond the time pro. vided in the bill of lading. The cause of this delay was in part the removal of the obstructions from the slip, .which the captain demanded, a.nd in part the slow. fjl.te of discharge afterwards,said to have arisen from the fact that the vessel was not brought close up to the wharf. where
Reported by Edward G. Benedict, Esq., of the New York bar.