Sl1ld like articles otherwise than by hand a practical art, and the re-issued patent No. 7,985 is valid. There must be a decree for the plaintiff, for an account of profits and an ascertainment of damages, with costs. ,
STEAM-TUG WM. MURTAGH.
(Diatrict OOU1't, E. D. New York. February 14,1881.)
TOW-WRECKED CANAL-BoAT-SUBSEQUENT LIABILITY OF TUG.
Where a canal-boat in tow of a tug sunk in a channel-way, and was abandoned by the tug, and two days' after another vessel ran on the sunken wreck, which was not buoyed, and sustained damage, for which she brought suit against the tug, held, that the tug was not liable for such damage, it appearing that the canal-boat had her master on board and in charge at the time of sinking; that the tug did all she could to save her, and was justified in leaving her when she did.
In Admiralty. F. A. Wilcox, for libellant. E.D. McCarthy, for claimant. BENEDICT, D. J. This is a proceeding in rem to enforce a lien against the tug William Murtagh for the amount of the damage caused to the sloop Boli'tar for running upon a sunken canal-boat named the Anna Marillo' which ,at the time lay under water near the mouth of Gowanus creek, in the harbor of New York. The evidence shows that the Anna Maria, on the sixth day of April, had been taken in tow by the William Murtagh to be towed from Elizabethport to New York with several other boats. While prosecuting that voyage this boat was found to be sinking. Effort was at once made by the tug to get her into a place of safety, but before she could be got upon the flats she sunk in the channel-way. After the Anna Maria had gone to the bottom the tug proceeded on her voyage with the other boats. On the eighth day of April the sloop Bolivar,. while navigating the channel in question, ignorant of the presence of the canal-boat in the channel,-
WORTH V. BTEAM-TUGWM. MURTAGH.
the same being under water, without a buoy orotliet means of' indicating her presence,-ran upon the wreck and sus. ta.ined damages, to recover,' which she brings thisaciion against'the tug which had the canal-boat in tow at the she sank. The evidence shows that theoanal-boat had. a master on board and in command of her during the voyage described; that when the canal-boat went down. the tug left and paid no further attention to :her, and that she was wards raised by her owners. On the part of the libellant i., isoontended that the evidence also shows the canal-boat to have been unseaworthy at the time she was taken in tow by the tug; and it is insisted that it was afalllt on the part of the tug to attempt to tow such a boat across the harbor of, New York; that the sinking of the boat must be attributed· to the fault of the tug in attempting to take an unsea'worthy: boat across the bay, and that cons'equantly the tug, became: subject to an obligation to remove the wreck, or so buoy Has to n8tify other vessels navigating the channel of· the existence' of this hidden danger. In disposing of this case I assume that the sinking olthe' boat arose from her unseaworthy condition; and I also as. sume-without intending so to decide on the present: occa. sion-that it was negligence on the part of the tug to attempt to tow'such a boat across the harbor of New York, and that such negligenoe was one cause of the boat's sinking. I con" sider the case as turning upon the quefltion, whether, with these assumptions, the tug has been shown to have been under the obligation to remove the wreck, or so buoy it as to give notice of its presence. Upon this question my opinion is adverse to the libellant. The evidence shows beyond dispute that the canal-boat went down in spite of all reasonable exertions on the part of the tug to get the canal·boat to:a place where she could sink and be out of the channel; that after the canal·boat sunk the tug proceeded on her way with the remainder of the tOW,,: without any objection on the part'of the master of the canalboat. The damage sued for occurred on the eighth of April, after all connection between the tug and the canal-boat had v.6,no.2-13
' At, that time, as I Qonceive the'law to be, the tug was under no obligation whatever in respect to the wreck. InWhitev. Crisp, 10 Ex. 312, it was held that in order to make Otlt ,thl'!. of an oblightion on the part of a defendant to maintl,\in a buoy upon a wreck, it is not enough to show that tl1e of the defendant caused the sinking, but it tnust also appear. that at the time the damage !l>rose the defendl;l.nt was in and control afthe wreck, and able to remove or, to buoy it. ' In this -case, sometime, prior to the damage in all: connection between the tug and the canal.boat had been terminated, under circumstances justifying stIch action on the partiofthe tug. Because her connection had been so terminatedunder such circumstances, I am of the opinion that at, the time of the damage to the Bolivar the tug was under no obligation to prevent the canal·boat from being a cause of, damage to other vessels navigating the channel wherein she was sunk, and consequently is not liable for the injuries sus· tained by the Bolivar. It is said that if such be the rule an, indueement is to tugs to abandon their tows at the earliest moment, in all cases of disaster, in order to escape further responsibility; but it is not seen that such a conse· quence will follow from a case like the present, where it is proved that the tug was justified in terminating her connec· tion with the canal-boat, because every reasonable effort had. been made on her part to get the canal·boat to a place of safety before she sunk, and no requirement was made by the master of the canal-boat for any further effort in his behalf. The tug, having done all that it was possible for her to do to aid the canal-boat in its distress, had the right to terminate her connection with the canal·boat, there being a master of the canal.boat there present; and, having so terminated her relation with the canal.boat .under circumstances justifying such action, all obligation in regard thereto ceased and was at an end. The libel must therefore be dismissed, and with costs.
THE STEAM-BOAT DELAWARE.
THE STEAM-BoAT DELAWARE.
(Dist1ict Oourt, S.
1 AnMIRALTY- OOLLtSION-F'ERRY-BoAT Al'PROAClnNG SLIP-Tow..1.
NEGLIGENCE-NrNE'fEJl<NTH RULE OF NAVIGATION...;.LrGHT8.
WhQre a steam-tug, with S, tow on her starboard side, waslmoving slowly down the Hudson river on the Jersey side, a short distance above the Pavonia ferry,' about 8 o'clock A. the night being cI!iat and the weather fine, with lights indicating that she had a tow, and before reaching the ferJ::Y noticed the steam ferry-boat D., while on her trip from New York to Jersey City, heading diagonally across and up the river and across the stern of the tow, and not yet having reached that point in her course at which sheturned in towards the ferry-slip, whereupon the tug blew one whistle to the ferry-boat to indicate that she would pass to the right of the D" across her bowsl which signal the ferry-boat did not observe or respond to, but tinued on her course at full speed, and turned towards the ferry slip as if to cross the bow of the tug, which was then closely approaching the mouth of the ferry slip, whereupon the tug, observing p.er ments, immediately reversed a'nd backed at full speed, and when the ferry-boat was abOut 600 feet from the mouth of the slip she gave to' the tug a signal of two whistles, which the tug did not reply to, but continued to back, and the ferry-boat, continuing on her course i;o.to the slip without slowing or backing for the tug, but slowing a!1d backing to prevent her striking too violently against the ferry racks, and as she passed the tug came in collision with and injured the canal-boat in tow of the tug::, Held, that the D. was in fault in not noticing and responding to the signal of the tug, in not keeping a good lookout and observing that the tug was proceeding down the river, and in not keeping out of the way of the tug after she brought the tug and tow on her starboard hand. Held, immaterial that the tug was at the time moving very slowly, her movement being such that it could have been observed from the ferry-boat, and her lights showing that she had a tow., ' The Narragansett, 4 FED. REP. 244. Held, also, immaterial that the tug and tow were moving down very, near the ends of the piers. Also held, that even if the tug was in fault, and if such fault con-' tributed to the collision, the owner of the canal-boat could recover his full damages against the ferry-boat. The Atlas, 93 U. S. 302.
In Admiralty. W. R. Beebe, for libellant. S. Hanford, for claimant.