THE BRINTON. need be said. There was incompetency somewhere with respect to this work. It cannot otherwise be accounted for that so much time should have been consumed in raising the ship within a harbor and in Rmooth and shallow water. That incompetency, I think, rests with the master and owner, not upon the libelants. The latter were not engaged as wreckers, and were not in control of the work. They hired to the master their pumps, and operating service for one of them, at a per diem compensation. They were subject to discharge at any time at the will of the master. He, not they, controlled the operations. If the pumps were inefficient, or Leathem unreasonably prolonged the work, the master had the remedy in his own hands. He could put an end to the employment at will. Retaining the service, the claimant cannot refuse compensation, or claim abatement of the contract price. Starke v. Crille:y, 59 Wis. 203, 18 N. W. Rep. 6. I pronounce for the libelants upon the basis stated, with interest from the date of filing the libel, and for costs.
THE BRINTON. THE WILKESBARRE. ULRICH v. THE BRINTON AND THE WILKESBARRE.
(District Court, S. D. New York. May 4,1892.)
COLLJSION-NARROW CHANNEL-SWINGING Tow-FAILURE TO REVERSE IN TIME.
A tug and tow and a steamboat attempted to pass each other in the Kill von KUll, in a channel 1,000 to 1, 100 feet wide. and exchanged a signal of one whistle. The evidence showed that the tail of the tow, which was going with the tide, had swung at the time of collision nearly three fourths of the distance across the channel; also that the steamboat did not reverse, because not thought necessary, although the swinging of the tow was apparent. Bela, that the collision was due to the fault of both steamers. A boatman, who is not struck or thrown into the water hy the blow of a collision, but of his own volition remains aboard the disabled boat after collision, his health suffering in consequence of the exposure, cannot charge his personal injury as an item of the damages occasioned by the collision.
SAl\lE-DAMAGES-PERSONAL INJURy-NoT PROXIMATE RESULT.
In Admiralty. Libel by Napoleon B. Ulrich against the steamtug Brinton and the steamer Wilkesbarre for collision. Decree for libelant against both vessels. Hyland &: Zabriskie, for libelant. Robinson, Bright, Biddle &: Ward, for the Brinton. Wing, Shoudy &: Putnam, for the Wilkesbarre. BROWN, District Judge. On the 15th of December, 1891, about daybreak, as the steamtug Brinton was taking a tow of light canal boats, consisting of four tiers, with four boats in each tier, on a hawser of 20 fathoms, to the westward through the Kill von K'lll in a strong flood tide, the tail of the tow, when in the vicinity of the plaster workll at New
Brighton, came in c.olIieion with the "steamer Wilkesharre, loaded with 2,,,000 tons of (',oal,houod eastward ORt oHhe Kills. The libelimt's boat :WMfi(). much damaged aato be.come a., . i!tlw width' ofther qbannel' way. at tpe" point of collision was between 1;,00Q 1',100 ·feet.The witnesses for the Wilkesbarre testify that at she WRS close to the Staten island sbore, and as lila it was possible :£<ir her to .gO; while the witnesses for the Brinton teetifiVi thatthe' tug was,within 50 feet of the Bayonne oil dock opposite, 8;nd tbat the end of the., tow, did ndt extend more than 250 or 300 feet ,frolll ,the New Jersey'sbore.. ,If the latter contention were even approximately. co.rrect, the sole responsibility of the Wilkesbarre'would be clear; fol' the two boats exchanged a signal of one whistle when about 3,000 and'it was ,the duty ofeach to go to the right; .and there was natllliI1g to' pl'event the ,Wilkesbarre from keeping well on her own side o(thll Qhalloel. ., , 1. In the conflict of testimony on this point, not only the evidence of the libelant, a disinterested witness, but the drift of his boat after collision, satisfies me that the contention of the Wilkesbarre is substantially correct; and that she and the tail of the tow at the time of the collision were nearly three fourths of the distance towards the Staten island shore, and within 300 feet of it. For the libelant's boat, having been broken loose by the collision, ,drifted up with the flood tide so as to go not more than 100 or 200 feet off from the dock at Sailors Snug Harbor. A line was 'got 'out in order to make her tast there; but she drifted on beyond. The evidence shows that *e set of the flood tide there was nearly true, not setting inwards more than 50 feet between the place of collision and the Snug Harbor dock; so that the tail of the tow at colhave been aboHt three quarters of the distance towards the Staten iSliuidside. It is not contended that this was necessary for the navigation ot;the tow, au(iit manifestly was not. For this I must hold the Brinton in fault. 2. The Wilkesbarre if! in fault for not reversing as she might and ought to have done. The approach of the tow was seen in ample time. No circumstances arettieIitioned by the master that are sufficient to excuse thil;l omission. Thesteamer was perfectly manageable; and the only reason finally stated by her master for not reversing is, that until just before the rimmerit of collision he thought the tow would go clear without hie reversing. But it was palpable from the position and movement of the tow that the tow was on a swing through the effect of the wind, the tide, and the tug's port helm. The rules of navigation required the steamer to reverse; the master relied upon the calculation of a close shave, instead of obeying the rule, and he must abide by the consequences of his miscalculation. S.The clatm for personal injuries should, I think, be disallowed, as not resulting directlya.md naturally from the collision itself, but .from the libelllnt'sown volition, as anew agency, in remaining upon his boat some two hours or ,more after the collision. RaiJ:road Co. v. Reeves, 10. Wall.,176i RauroadOo. v. Kellogg, 94 U. S. 469. During this in-
terval he was more or less in water', moving.around upon his boat in Decemberweather; and, as he claims, he suffered considerable injury to his health in consequence. From the collision itself, the .libelant received no personal injury; that is, he was not touched by the blow, nor thrown into the water. The Queen,40 Fed. Rep. 694. ,He had the opportunity of going ashore, if he wished, in a small boat which came alongside. He remained on board his own boat, by his own choice. This-wasCor the purpose,nodoubt, of looking after his property; but it was none the less by his own volition, as a new agency,and hot by any constraint of the other vessels. His health suffered from his own voluntary exposure. Of the propriety of this exposure he alone had the means of judging. Whether this exposure was in fact more or less than that to which boatmen are accustomed, does not appear. It was his risk, and not the steamer's. While it is the duty of an owner to take reasonable care of his property to prevent its becoming a total loss, he is not uuder auy to endanger his.life or .health Jar that purpose. The evi· dence, moreover, does not show the particulars as to the extent of the exposure, or the necessity of it. . What the libelant did was apparently of no service to the boat. He might as weU have gone ashore at Sailors Snug Harbor, where he at first proposed to take the boat, but where he afterwards told the men to cast off thelines. Whatever he voluntarily did in this way, places him, I think, in no different relation to the steamers from that of any employe whom he might have obtained to render the same service. Each is the judge of what he may properly undertake; and if the result be unfortunate, he cannot go back to the original wrongdoer for indemnity. Such a consequence is too remote and uncertain, and is dependent upon too many intervening circumstances, to be regarded as the direct, or necessary, or natural result of the original wrong. Decree for the libelant against both vessels, with costs, with an order of reference to compute the damages, if not agreed upon.
THE JESSE SPAULDING.
(District Oowrt. E. D. Wisconsin.
May 16, 1892.)
A leading vessel is entitled to keep her course, and the overtaking vessel must keep out of the way until she has completely passed the other. Two tugs were proceeding abreast at full speed for a tow. Swinging to port to come alongside the tow they came in collision, the colliding tug changing the course of the. other, and driVing her into the tow. Held, the tug to starboard of the other, being the overtaking vessel, so remained until she had completely passed the other. and could safely cross her course, or safely intervene between her and the tow.