from the late ar1'iv:al of the gllano whic1;l was brought by this ship, their damages canQot.be the subject of a set-off in this proceediJ% but be sued for in another proceeding, if sued for at all. Set-off lsa' statu· tory right, unknown to except as a credit on the particular transaction which is the subjeot of the libel.
THE NANNIE LA:MB1l:RTON.
NEI4loN ". ",';.
MAJESTIC . , THE NANNIE LAMBERTON. . . . AND ,',
, .(Otr,euttoourlco! AS/peatB, Second C'£rcUit. DE'cember 14, 18111.)
1. SBIPl'IN...::hroRYBl' SWEt.LJ'ROM ST£AH"SHIP.
An passing up New York bay, ",hen near 13edlQe's island overtook ana JlBBsed a tug with a heavilY laden Oanal"boat lashed on eithe1'8ide. A dia. placement wave produoedby the steam"ship, three feet or more high, struck the threw her with such forC,e against one of her tows as to break in the side of the tow. The steam-ship'. oflicers tE>sti1led that she passed the tup; half a mile to the weatward, and that her speed had been 11 or 12 knots an hour, but was reducet'l; to, 7 knots at a point below Bedloe's island. The weather was fine, and the bay'sInooth, 'and there was nothing to render navigation of the bay by the tug and her tOW's on that day imprudent. Beld, that the steam"ship was liable for the int0l"', apd that it was no defense that her displacement waves did not render navlgatlOn 1n the bay more perilous for tugs and tows than would a high , Wind, nor tl:iat she was navigating at a speed customarily adopted by vessels of her , class. 44, Fed. Rep. 813, aflirmed in part. The tug was not in fault for failure to turn the stern of her tows directly to the the WiW&, .she being the overtaken vessel,and her master haVing the right to as. Bume that the would take proper steps to avoid diSaster; and this, the master saw the wave some little time before it struck, as he might reasonably espeeta decrease in the wave before it would reaoh 11ia vessel «Fed. Rep. 813, reversed in part.
.. &ME-DoTIEs ,Oil' OVERTAKEN' Toa-ToWAGE. '
In Admil'a1ty. Appeal from the circuit court of the Uniterl States for the southern district of, :Ne:w York. Libel against the steam-ship Majestic and the steam·tug :Narinie Lamberton for .to thtl canal-boat Emma while in tow of the tug. Decree against the claimants o(both vessels. Both appeal. Decree. affirmed as to the Majestic, but reversed as to the Nan· nie LambertoIl. . ' Ge(Yf'ge De Fcrrest Lord, for the Majestic. Edward}). ;McCarthy, fpr the Nannie Lamberton. Josiah A. Hyland, for libelant. ' Before WALLACE and LACOMBE, Circuit Judges. LACOMBE, Circuit Judge. By the decree of the district court for the southern district of New York, damages were awarded in favor of the libelants against both .claimants, for injuries sustained by the canal·boat
Emma, on June 4, 1890. In the afternoon of that day the Emma was navigating the waters of the upper bay of New York, bound from the Erie Basin, Brooklyn, to Hoboken,N. J. She was lashed to the starboard side of the tug Nannie Lamberton; another boat, the Mildred, being lashed to the tug's port side. The Emma was loaded with a full cargo of grain. She was a good, stanch river boat,and, so far asappears; entirely fit to navigate the upper bay in ordinary weather. It was a clear, pleasant day, with but little wind, and the waters smooth. There was nothing in the situation when her voyage began to call for any, different method of towing, as by a hawser, or to render it imprudent' for such a craft to venture forth. The tug and tows had reached a point beyond the northerly line of Buttermilk channel, a little to the north-east of the bell-buoy, off Governor's island, when they were struck by a displacement wave from the steamer Majestic. The wave was encounterf'd broad-side, or nearly 80. It threw the tug against the 'side of the Emma with such force that the side of the latter, a little aft of comamid-ships, was broken in, and she thereby sustained the plained of. The Majestic is 582 feet long, 57 feet beam, drawing on this occallion 20 feet forward, and 22 to 23 feet aft. She has twin screws, and is one of the fastest boats that travel on the ocean. She was bound in from sea for pier 39, North river, and passed the tuganrl tows to the westward. The witnesses for the libelant and the tug testified that she passed them at a distance of 700 to 800 feet. The officers of the Majestic fix the distance at half a mile, or more, but this is an inference from their recollection as to· the steamer's usual course. None ofthem saw the tug and tows either before, at, or immediately after collision. The witnesses for the libelant and the tug estimate the speed of the steamer at from 12 to 15 miles an hour. The officers of the Majestic testified that her speed from quarantine up was 11 to 12 knots, until at a point below Bedloe's or Liberty island it was reduced to 7 knots. The swells which struck the tug and tow were three 1eet or more high. The first of them rolled on to the deck of the Emma, which was that distance above the waWr. It was, according to the master of the tug, who has navigated the upper bay for four years, a bigger swell than is usually thrown out by steamers; a fact he attributes to the effect of a double screw, though the steamer's officers say there is no difference between the waves generated by double and by single screws. The captain of the Majestic testified that, at the lower rate of speed, her displacement wave would have no effect whatever at the distance of 1,000 feet. The fact that the tug and tows were in shallow water no doubt increased the swells, but it seems probable that the wave which did the damage was thrown off while at the higher rate of speed, and that the steamer passed considerably nearer than half a mile. Be that as it may, however, it is plain, upon the proof, that a wave was thrown up by the steamer, which made navigation unsafe for the canal-boat, although she was, so far as appears, a proper craft to navigate the waters of the upper bay, and was attached to her tug in a proper way for towiug with the natural conditions of wind and waves, such as they were that day. If, when moving
at seven knots an hour, and the distance of half a mile;, the Majestic produce.ssU'ch.resqlts, then there is in her size or build which watchful of craft they pass at makes it 'necessary for her officers to that distance, as well as of those in the immediate vicinity, and to regulate her motions accordingly. It will not do to say that the swell she throws is no higher than such as are produced by a high wind in these waters. A high wind had not, on this particular day, rendered the bay unsafe for river craft. They were entitled to navigate there, and the proposition cannot be maintained that harbor waters may be put at all all seasons in. as perilous. a condition for smaller craft, by times and; the rapid,mQvements of large OCean steamers, as they are occasionally by. the of a .gal,e ()f wind. Such waters are not to be appropriated to. theexcl\li\ive uSepf anyone clai\s of vessels. We do not mean to hold· tb;tt ocean steamers are to accommodate their movements to craft the bay, either from inherent weakness, or unfit ·to ing, or improper handling, or which are carelessly navigated. But of none of these is there any proof here, anq, in the absence of such proof, we do hold that craft such as the libelant's have the right to navigate without of anyab.normal dangerouf'} condition, produced solely. by th fl wish of the owners of exceptionally large craft to run them at such a rate of speed as will insure the quickest passage. To hold otherwise would be virtually to exclude smaller vessels, engaged in a legitimate CI;>Jnmerce, ,from navigating the same waters. Nor will it do to say thllHhe Majestic was navigating in the way and at the speed customarily, adopted by vessels of her class. If such way and speed cause injury[ toa seaworthy craft ora kind properly in these waters, and properly hand;led, the custOIrl will have to be modified, or the privilege there anything in the suggestion that the swells of the paid for. been safely met, end on., and therefore were not dangerous, for she.was an overtaking vessel, and threw her swells upon the tug and tows from a quarter whence they.were not bound to look for danger. court held. the tug also in fault because she did not tum the tow'sste.rn directly to the, wave.. I.nthi s opinion We cannot concur. She was not .bound to. look out for danger from an over.taking vessel. As the overtaken vessel, she was to keep her course. No regulation required signals. from her. It was .broad daylight, she was plainly visible. Hermas.ter did,in fact, see the Majestic some time before she carne abreast of the tow, l;lUt he was entitled to assume that she would take proper: measureS to avoid disaster; and, though he saw the wave some little time before it struck, he might reasonably have anticipated that it wpulddecreasein traversing the space it had to travel. We are unwilling to lay itdown as.a ruleof navigation that tugs, to\Ving in harbars,' must always turn the sterns of their tows to the swells cast byover' .. ' . . . taking steamers.- . The decree is reversed, and the case remanded, with instructions to enter a against. and her stipull}tors for the libelant, for the full amount . of. her damages,wit4 interest from. the date pf the
report ofthe commissioner in the district court, and for her costs in the district (jOurt, and for the owner of the Nannie Lamberton lor costs of this' court.
J ORANNB. 1
LORENTZEN 11. THE JOHANNE.
(DfBt1ict Court, S. D. New
November 50, 1891.)
C.lBBIEBS-NEGLIGENT STOWAGE-CASES OJ' HOUSEHOLD GOODS.
Cases of under abill,of which contained the ex· ception, "not accountable for damage and breakage," were stowed in the lower we!-"e delivered damaged by water taken on by the ship in hold of the, heavy weather; 'The brig was old, and her construction was Buch as to necessitate more than usual care in the stowage of merchandise liable to be damaged by water. The master had notice that the cas,es contained, household goods. ,Held, that it was : 'negli'g'ence to stow such, goods ,near the bilge in the hold of a vessel of such con, struotlon and age, and the ship was liable for the damage.
,T. P. Kirlin, for libelant.
Suit to recover for damage to cargo.
Wing, Slurudy & Putnam, for claimallts.
B'IlOWN,'J. Sixteen cases qfbousehold goods, shipped at Bremen on the brig Johanne, were found, on discharge at New York, to have been damaged hy water. The bill of lading recited that the cases were receiveClin,good order and and, besides peril of the seas, contained ;the exception, "not accountable for damage or breltkagl;l." They were not broken, but had been ill water so much that permanent watermarks were left upon the,aidllS of some of the cases, and the contents, consisting of furniture and books, were The vessel was old, 'and her bottom, had not. been generally overhauled for four, yel¥'S. She encountered, two severestorr.l)s on the passage. Ipthe face of,the e,vidence,submitted, I Cttnnot find that she was generally unseawortllYi but she was certainly liable to incur more than usual lcakage,llnd:her great bteadth,of 35 feet, for her size, also required more than usual care in the 'stowage of any merchan<J,ise liable to .be damaged by water. The cases of furniture were: not stowed between-decks, butin the lower hold, on the starboard side of the ship, on top of about five feet of ore. Upon the the.officers, I must assume that thedamage to the. cases arosa frOIn accumulations ,ofwater in the hold heavy lea;kage of the ship in the storms which she encountered, and in the listwl;l,ieh she had while sailing for long periods on thA port tack, during which the cases were more or less in water. The bill of lading shows that the mastel" chad (notice that the contents of the cases were. household, goods. In. my judgJ;Uent" he was; not justiped in stowing such caslfs
by Edward lit Bllnl'l<1illt, ElIq., pfihe New Y9rk l:1ar.