TH:& jl:&ORGE A. HOYT.
(District (Jourt,8. D. New York. January, 1881.)
ADMIRALTY - COLLISION MENT OF LIBEL. NEGLIGENCE STEAM-BoATS WITH Tows-AMEND-
As the steam-boat S., with her tow of about 30 boats, was rounding West Point, on the west side of the Hudson river, on her way up, the day being clear, the steam-boat C., with her tow, being just ahead of the S., and heading across the river to Magazine point, on the east side, the river here taking a sharp turn to the west, there were disclosed to the pilot of the S. the steamer G. A. H., with her tow, coming down the river close to the west side,ascboonl'lr coming down, before a light west wind, and another heading up, and the C., with her tow, in the position stated. The C. was taking the usual course' in this narrow part of the river, the tide being strong flood, but the S., Which had been gaining on her, tried to pass her on the west, or her port. side; As she was lapping the S.'s tow the schooner got in her way, :wWle trying. tQ make her tack to the eastward, and the S. then w8scompelled, in order to schooner, to head still further to the' west, and then to stop' till; theschb6ner got out of the way, the effect of which was to bring her tow dangerously-near to the tow of the G. A. H. The end of the S.'s tow ho,ving taken. a W!l.flWMd swing with the tide, came in collision With the port boat, the schpoller, /"+-f'N,., on the first tier of the G. A. H.'s tow, thus causing the damage to the libellant's barge on the port side of theS.'s tow; the G.A. fl., on seeing theS. chaiige her course, having stopped, and slacked her starboard thus C8,using Ael' tow to swing into the west bank. .' . Held, that the libellant's claim that the G. A. H. was in motion at the of the colHsion and took a sudden sheer under the stern of the tow of the! B. after passing, thus causing the collision; is against the weight ofevideooe.,,;·; That such a movement was wholly uncalled fO;J:by the an.d apparent motive, and that the libellant's witnesses may have been deceived on this point by the effect of the movement of their own tow. That the collision was wholly due to reckless n,avigation of the,Sim keeping on at full speed in a narrow part of the river, and trying to, pass the river was so obstructed that the attempt could not be safely made :without serious risk of collision with one or another of the vessels she was approaching. Also held, that, the proof being that the S. did not keep anywhere ,near the eastern bank of the river, the libellant's motion to amend in that regard be denied. ;
W. R. Beebe, for libellant. R. D. Benedict, for claimant. CHOATE, D. J. This is a suit brought to recover damages for injury to the libellants' barge Washington through a collision with the schooner Jane L. Newton, which was at the time of the collision in tow of the George A. Hoyt. The collision took place on the fourth of June, 1875, in the Hudson river, just above West Point. The Washington was in tow of the steam-boat Syracuse, and was one of a tow of abouk 30 boats, being the outside boat on the last tier but one on the port ahead of her was the barge Tompkins" and astern side.'
of her the barge St. Nicholas. The Syracuse, with her tow, was going up the river. The George A.Hoyt, with her tow, was coming down. The day was fine and clear. The wind was light and westerly. The collision was about 11 o'clock in the forenoon. The libel is brought against the George A. Hoyt, the Syracuse, and the Jane L. Newton, but is only prosecuted against the George A. Hoyt. It charges her with too great speed, with not keeping well over on the west side of the river, and with taking a sudden and unnecessary sheer across the stern of the Syracuse tow after passing it, so as to bring the hawser under the bottoms of the boats in tow of the Syracuse, thereby bringing the schooner Jane L. Newton, which was on the port side of the first tier in the tow of the George A. Hoyt, into collision, first with the Tompkins, then with the Washington, doing her great injury, and then with the St. Nicholas. ,J'he libelaHeges that the tide was ebb. The answer avers that it was strong flood. There is no doubt upon the evidence,however, that 'the"flood·tide had been running for an hour or two. The libellants George A. Hoyt was not over on the west side of the riyer; but on tbis point, also, the testimony is clearly with the steam'boat.:' :·Shehad been coming down, keepiDg as, close as was prudent to the west bank, proceeding very slowly against a head-tide, and and her tow came round the lamp at West Point the Hoyt and her tow were at that part of the called Moore's Folly; headiJ?gidown towards the government dock, and as close to the west side of the channel as it is usual for tugs with tows to be. The libel alleges that the Syracuse, with her tow, hugged the u'estth,e' rivet after turning the point. Upon the trial this was claWed by libellants' proctors to be a clerical error, and it was claimed ,that the intention was to allege that she was hugging the eastern side of the river. ' The libellants' application to amend was reserved till the cause should be heard, with leave then to ask for the amendment if the proofs should warrant it. The testimony shows that the Syracuse, with her tow, was followinganother, steam-boat, thl3'Ceres, also with a tow, and was rapidly 'overtaking her.' The Ceres first turned the point at the lamp, and when the Syracuse turned the point as she did, well over towards the westerhside of the river, and opened this reach of the river, which therethrns nearly west, she had in sight the George A. Hoyt with her'tow, .stretching along the west bank by Moore's Folly, the Ceres and her tow, heading up for Magazine point, on the opposite bank of the river, a schooner coming down before the wind, and another
'IRE GEORGE A.. HOYT.
schooner beating up against the wind. The river at that place is narrow and the flood-tide strong, setting over towards the west bank·· The usual and proper course of a tow going up on a flood-tide is, after· passing the point close to the west bank, to head across for' Magazine point, on the other side, and this course the Ceres was taking. The Syracuse, notwithstanding that the George A. Hoyt and her tow and the two schooners were in the river, and might interfere with her accomplishing her purpose successfully, undertook to pass the Ceres and her tow to the west, or on their port hand. Instead of heading up for the Magazine point, on the east side of the river, she took a course more westerly than the Ceres and about. the middle of the river, and was coming up to and lapping the tow of the Ceres, when it became evident to her pilot that the schooner beating up the river was: in her way. This schooner was tacking on the west side in order to stand over to the eastward, and, from losing the wind, or for some other reason, was longer in making the riranoeuverthan the pilot of the Syracuse calculated upon, and he was compelled, first, to f:1heer still further to the westward, and then to stop, in order to avoid the schooner and pass to the westward of her, and' give her time to get out of the way on her eastward tack. This brought the Syracuse and her tow in dangerous proximity to the George A. Hoyt and her tow. schooner finally stood to the eastward the Syracuse passed When her, the forward barge in her tow on the starboard side just grazing against the schooner. As the Syracuse passed the schooner she sheered again sharply to the eastward, for the purpose, it may be presumed, of drawing her tow out of the way of that of the George A. Hoyt; but her tow had already taken a swing to the westward, the effec.t of her stopping and of the tide. When the pilot of the George A. Hoyt saw the Syracuse change her course he stopped his boat and slacked his· starboa:rd hawser, thus letting the boats in his tow swing into the bank; and they had no headway at the time of the collision. The end of the tow of the Syracuse, however, kept on with this swing to the .west. ward, and the Tompkins, Washington, and St. Nicholas came incol1tact with the schooner Jane L. Newton, which was on the port side of the first tier in the tow of the George. A. Hoyt. Several witnesses from the Syracuse and her tow testified that the George A. Hoyt was in motion at the time of the collision, and took a sudden sheer under the stern of the St. Nicholas after passing her, thus bringing the schooner down on the port side of the tow of the Syracuse, as alleged il). the libel, but the weight of the testimony clearly is that the G(orge
BOYD V. CLARK.
Adm'r, etc., v.
(Circuit Court, E. D. Michigan.
Where a statute gives a right unknown to the common law, and limits the time within which an action shall be brought to assert such right, such limitation will be enforced by the courts of any state wherein the plaintiff may sue. Hence, where a statute of the province of Ontario gave compensation for death, caused by the wrongful act of another, and further provided that action should be brought within 12 months after such death, it was held that this limitation was also applicable to actions brought in the state of Michigan under this statute.
On Demurrer to Declaration.
This is an action, based upon a statute of the province of Ontario, recover damages for the death of plaintiff's intestate by reason of alleged neglL gence of the defendants. The declaration sets forth that plaintiff's intestate (his son) wasiJi the employment of defendants as a deck hand upon the steam-boat Alaska, owned by defendants and engaged iIi navigation as a common carrier between Detroit and Sandusky; that by reason of negligence and want of proper care on the part of the owners in regard to the construction and equipment of the steamer, and in permitting her to race with another vessel, the boiler exploded, while the steamer was in the waters of said province, and plaintiff's son was thrown into the lake and drowned. The declaration then sets forth the statute relied upon, the material portions of which read as rollows: " Sec. 2 Whenever the death of a person has been caused by such wrongful act, neglect, or default as would, if death had not ensued, have entitled the party injured to maintain an action to recover damage in respect thereof, in such case the person who would have been liable if death had not ensued, shall be liable to an action for damages, etc. "Sec. 3. Every such action shall be for the benefit of the wife, husband, parent, 3I\d children of person whose death has been so caused. and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the judge or jury may give such damages as they think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action has been brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided among the before-mentioned parties, in such shares as the judge or jury by their verdict find and direct. Sec. 5. Not more than one action shall'he for and in respect of the same subject-matter of complaint, and every such action shall be commenced within 12 months after the death of the deceased person." Here follow the. usual averments to the next of kin, and the appointment of complainant as administrator. To this declaration defendants demurred, mainly upon the ground that the action was not begun within the year, as reqUired by section 5 of the statutes.