THE TUG SEARS.
(District Court, N. D. New York.
when the tow of a steam-boat was mainly broken up, and the boats comprising the tow were comparatively helpless, awaiting tugs to carry them off. Those on lJoard the tug, though having ample opportunity to notice this condition 01 affairs, proceeded in the direction of the tow, without shortening the 200 feet of hawser with which she was towing hcr scows. The tug passed without colliding, but the first of her two scows struck the libellant's boat, inflicting serious injury. Held, that the tug was in fault in this: that, in lack of sea-room, she did not shorten her hawser and get her tow under control; if there was searoom, for colliding at all. 2. SAME-SAME-REv. ST. § 4289. A vessel employed in navigation upon the Hudson river, and not elsewhere, is Dot within the class excepted by the provisions of section 4289 of the Revised Statutes, limiting the liability of the owners of vessels used in river or inland navigation.
Tracey was without fault. There must be a decree for the libellant, with costs, and it is referred to a master, to be appointed by the court, (unless the parties agree upon the person,) to take proofs as to the libellant's damages, and report, with his opinion thereon, to the court. As to the steam-boat Connecticut, as to which the libel was dismissed upon the hearing of the cause, I think she was censurable, though not legally in fault, and is not entitled to costs. Upon the trial of the <lause a motion was made, upon the petition of one of the owners of the Sears, to limit the liability of the owners, which, by understanding between counsel for the parties, ;was to be .considered in connection with the proofs taken upon the trial of the cause, and decided if the main question should be found against the Sears. It appears from the proofs, and there are no allegations in the'petition inconsistent with the fact, that the Sears was employed ih river navigation upon the Hudson river, and not elsewhere. The provisions of the statutes for limiting t,he liability of the owners of vessseis do not appy to the owners of any vessel used in rivers or inland navigation. Rev. St. § 4289. It was held by Judge Drum'mond (,l'he War Eagle, 6 Biss. 364) that a vessel employed on the upper Mississippi was within the' excepted class; and, while much m.ightbe said in favor of the position· that section 4289 refers only to such rivers as are inland, as distinguished from public navigable waters, that decision must be. recognized as controlling here, both because its reasoning is satisfactory and as an authority it is entitled to high i·espect. The , prayei' of the petition must , be denied. .
THE JULIA SHERWOOD.
Wist1'ict Court, E. D. New York.
July 25, 1881,)
ExCEPTtoNs TO LIBEL-LIEN UNDEIt THE LAWS OI;' NEW YORK. Exceptions being filed to a libel claiming a lie!! upon a :vcssel for repairs and supplies in the port of New York, under the statute of the state, alleging that tio facti were stated sufficient to constitute a cause of lIction, that no lien existed, and that the eanse of action was not one of admiralty and maritime jurisdiction: Held, that the exceptions were not well taken; that the filing of specifications w.as not a necessary averment where it appeared that the vessel had not left the port; and the statement oilhe Fbel that the work was dime on a domestic' vessel, in her home port, at the request of -the owner, and .'tlie.:Clai.m wassollght to be enforced within a month. were sufficient to create a the sta.tute of the state of New York which may be enforced in the ailmirahy.