,.THE EXCELSIOR.
195
wise, and I doubt not she would have done so ha.dany a.ttention been paid to the scow. O'Neilv. Seara,, 2 Spr. 52; The Petrel, 6 McLean, 491; The Lady Franklin, 2 Low. 220. No explanation is given of the alleged backward motion of her engines, because this backing is denied. Nor does any reason a.ppear why she did not move what further in shore, as she might and naturally would have done if the danger was noticed, having at least 10 feet space to do so. Had she observed the course of the Acme, as she was bound to do, and given signals of warning, as she also should have done if she could not get further out of the way, or was not intending to proceed to the dock, as it was supposed she would do, it must be presumed that the other vessels, one or both of them, would have understood that she could not do anything more to get out of the way, and would have been more diligent in using their own means of avoiding her. Instead of doing so, she appears to have attended solely to her own maneuvers, and either failed to observe the Acme at all, or relied exclusively on the other tug and tow to keep out of the way, precisely as the Thompson relied on the Skeer to keep out of their way. The rule which requires all parties to use with diligence all the means at their command to avoid accidents, thus applies, though in different ways, to all the three vessels. The libellant is therefore entitled to judgment for half his damages and costs.
THE EXOELSIOR.
(Diatrict (Jourf,8. D. New York.
April 25, 1882.)
1.
COLLISION-INSUFFICIENT LoOKOUT.
A schooner sailing in the Hudson river at night with a free wind, with no other lookout than the captain remaiIiing abaft of the Wheel, Mld, no proper and sufficient lookout. 2. BAME-STEAMER WITH Tow-HEAD ON-FAILlffiE TO ExnmIT TORCH-LIGHT.
A schooner approaching a steam-tug with a tow nearly head on, must be held in fault in not exhibiting a torch-light, according to section 4234 of the Revised Statutes, unless it be clear that exhibiting a torch-light would convey no additional information as to her course and position, which cannot be assumed' Where, as in this case, there is reason to believe that the schooner's red .light was obscured by her jibs. 8. SAME-CONFLICTING TESTIMONy-IMPROBABILITIES.
Where there is irreconcilable conflict of testimony as to the J?ositiona and courses of two colliding vessels, the account p;iven from .the vessel having no lookout properly stationed, being in part improbable in itself, is discredited.
196
FEDERAL REPORTER.
4. SAME-FA.ULT BY CHANGE OF COURSE.
Where orders are given for a change of course by a schooner just prior to a collision, in the excitement occasioned by the sudden discovery of a steamer near at hand, from the want of a previous proper lookout, and the change of course contributes to the collision, tbe ftcbooner must be held in fault. 5. 8.ufE-NOTICE OF EXCEPTIONAL :MOVEMENTS. Where the steam.tug A.., with the barge E. in tow upon a hawser, was pro-
ceeding up the Hudson river, and saw the schooner's green light about a point on her starboard bow, which, instead of· broadening further to starboard as they approached, constantly made up more towards the stem of the steam-tug, that is, to Windward, but no red light was seen, held, sufficieut notice to the steam.tug of something exceptional about the schooner's course or lights, with the probability that she was constant(y yaWing to windward and was newrly head on, with her. red light either extinguished or obscured, and that the tug was bound to give her, therefore, a wide berth. The steam·tug, instead of doing so, having kept on her course unchanged, nearly head on, until, when the green light was a little off the starboard bow, the schooner ported and ran across the steamer's course, reSUlting in a collision with the barge, from which the schooner was sunk, held, that the steam-tug was liable for not keeping further out of the way, and that the damages should be apportioned. 6. OBSCURATION OF LIGHTS.
The captain of the barge, though having some steerage way, is not primarily answerable for her navigation, and not beld with the same strictness to keeping watch of lights ahead; and not on which side of the steam-tug the schooner, whose lights he had seen ahead, would pass, held, that he was not answerable for negligence in not noticing the schooner's lights for two orthree seconds as she passed to port, and before they were enveloped and obscured by a cloud of steam, and not liable for not at that tiD1P immediately porting his helm.
Benedict, Taft ti: Benedict and S. H. Valentine, for libellants. James McKeen, for steam-tug Atlas. Butler, Stillman ti: Hubbard and W. Mynderse, for barge Excelsior. BROWN, D. J. This is an action for 'damages for the loss of the schooner Warren Gates through a collision with the steam-tug Atlas and barge Excelsior, about 11 o'clock on the night of September 26, 1878, on the Hudson river, at a point about two miles north of Yonkers, whereby the schooner was immediately sunk. The Warren Gates was a small schooner of about 73 tons measurement, 68 feet in length, and 24 feet beam. She was deeply laden with a cargo of about 425 tons of coal, having 25 tons on deck, on a voyage from Rondout, New York, to Niantic, Connecticut. She was coming down about the middle ofthe river, the wind a strong breeze from N. N. W., on her starboard quarter, with foresail and mainsail well out, both jibs set, and making from six to seven miles an hour. The tide was the last of the flood. The Atlas, a steam·tug of 68 feet in length and 17 feet beam, was going up about the middle of the river, with the barge Excelsior in tow,
THE EXCELSIOR.
197
on a hawser 55 fathoms in length. The barge was 143 feet long by 28 feet wide, and was about half loaded, drawing four feet of water. All the vessels had the regulation lights properly set and burning. The tug passed the schooner to the right, but, as the libellants claim, struck her a somewhat severe glancing blow upon the port bow of the schooner, though this is denied by those on board the tug. ' The main-boom of the schooner, about 50 feet long, raked acrOS8 the tug, carried away the top of 'her pilot house, broke the steamwhistle, bent the smoke-stack, and, it is said, became somewhat entangled in her upper works. She soon cleared', however, and shortly after the barge struck the port bow of the schooner nearly head on, in consequence of which the schooner sank in about three minutes. Her 'captain was carried down with her,but was; rescued by the tug. The cook was drowned. The mate and one seaman, who were the only other persons on board the schooner, were afterwards rescued by another vessel. The night was dark but clear. Each claims to have seen the lights of the other from one and a half to two miles distant. Shortly before the collision the wheel of the schooner was put first nearly to starboard, and then hard a-port, when, as alleged in the libel, a collision seemed unavoidable from a sudden change of course in thesteamt· tug; and there is no doubt that as the tug passed her the schooner bore samewhat to westward; for, when raised a few days afterwards, she was found heading one or two points to the west of the line of the river. But, as to all the time prior to this change of the schooner's wheel, the testimony of the parties, both as to the situation ot the two vessels and their respective courses, iii in irreconcilable Upon the schooner the mate was 'at the wheel, and there was no other lookout than the captain, who had charge of the' navigation. He remained abaft the wheel, claiming that on account of the Bpta'y from the bows it was a better situation for a lookout that night. He testified that he first saw the vertical white lights of the Atlas when two miles off, as he stood by the rail on the starboard quarter, and that these white lights were then seen between the two masts beneath the fore boom on his port side. Shortly after, he says, he went to the rail on the port quarter, and presently saw the red light of the Atlas about on a line with the port rail of the schooner; that it was three or four minutes after having se/iln the white lights that he first saw the red light of the Atlas about a point on his port bow, and that he kept watching it from that time on ; that a short time after -two minutes, more or less-he 'SIlW the green light still on his port
FEDERAL
bow; that he then apprehended a collision, and ordered the wheel put hard a-starboard, but that before there was time to starboard the wheel the steamer's red light came again suddenly in view, when he ordered hard a-port, and took hold of the wbeel to help, and that he had hardly time to give the order hard a.port before the collision. On his cross-examination he says that he first saw the colored light when he was standing on the lee side, and saw the red light parallel with the lee rail, and that when he saw the green light he was in the same place, and saw it in the same direction; that up to the time of seeing the green light his course was not changed, but that they came dqwn the middle of the river as straight as the schooner could be steered. The mate, who was at the wheel, testified that he first saw the white lights on his port bow twelve or fifteen minutes before the collision; that three or four minutes afterwards he saw the steamer's redJight about one point off his port bow, which remained in sight may be seven or eight minutes; that up to that time he had made no change at all in the course of the vessel, but sailed straight down the middle of the river; that she would yaw about three-quarters of a point upon either. side; that he next saw the green light when three or· four lengths of the schooner (about 250 feet) distant from the steamer, and that this green light bore a little on his port bow, when he got the order hard a-starboard, and before it was hard up he got the order, "The red light in sight again; hard a-port;" that he saw the red light himself the second time; that there was no interval to speak of be.tween the order to starboard and the order hard a-port, and between the order hard a-port and the collision was a very short time-about half a minute, or a minute at the most. The seaman who was below, off duty, was attracted on deok by hearing the oaptain sing out, "A light on the1ee bow." He threw away his pipe, came on deck and went forward, and says he saw the red light from a point to a point and a quarter on the Ice (port) bow; that it remained in view about five minutes; that ho then saw both lights, and in two or three seconds sawthe green light, when the tug was about five lengths of the schooner away (350 feet) and pretty near that he next saw the tug's red light; that the collision was so soon after that he had to "fly out of the bows;" that the tug hit the schooner on the port bow, a pretty heavy glancing blow, and that the barge struck less than half a minute afterwards, square on. From all the surviving witnesses of the schooner, therefore, the testimony is uniform that the lights of the tug and tow were ata11
THE EXCELSIOR' '
times upon the schooner's port bow, and that the ·tug's"l'oo?Nght;:n.ndi not her green light, was visible until withiu three or four lengt1l:a l06 the schooner, when, by a sudden change, the· green light was seen, threatening an immediate collision, when: the schooner's helm was changed as a maneuver in extremis to ease the blow· . The testimony'of the pilot and captain of the·steamer is directly to the contrary: The pilot testifies that he-1l.rstsaw the lights of the schooner about two miles off, 80 little on his starboard bow, but could not at first m.ake out which lights they were; that her Murse was zigzag till about one mile distant, when she showed a green light only on his starboard bow; that she kept on' that course till her green light was about two' points off on his starboard bow, when he could see her sails plainly at a distance of 400' or 500 feet, more Or less, when she changed her couree, shutting in her green light and showing her red light only; that at that time the schooner was so far upon' his starboard bow that he could see the easterly shor8 of the river abaft 'the schdoner; that if she had not changed the steamer would have passed some 500 feet· to the west of her; and that upon her porting ber helm he' 'put his ownbelm hard a-port to avoid her; tbat the hull of the ttig did not strike the schooner, and that he dropped down as the main boom raked over the tug, and on getting up found her beaded right on to the easterly shore; that prior to porting his helm he 'was heading about one point to the westward of the line of the river; that he did not previously change his course at all after first making the schooner's lights, and that he was threequarters over towards the easterly shore; that there was no other person on deck excepting the captain, who was lying down in the pilot-house when the lights were first seen, and got up almost imme. diately thereafter; and that ttiepilot-house was 15 feet from the stem of the tug. The captain testified that the tug was going up the middle of the river, as near one side as the other, and heading straight up the river; that he first saw the schooner's green light, from one to one and a of a mile away; that half points off his starboard bow, the green light remained in view about three or four minutes, when it was shut off and the red light visible· wheh about 300 feet off from the tug; that had the schooner kept on without this change she would have passed 100 feet clear to sta;rboard ; that at the time of this change he could hardly see the hull of the schooner; but could see her sails ; that the tug's heIrn was immediately put .hard a.-port, arid that the hull of the tug did not strike the schooner. On
100
FEDEBAL REPORTER.
he repeatedly stated that the green light, after being first seen on the starboard bow, did not oft more to sta.rboard, but approached the stem; and that the red light, when first seen, wa.snearer the stem on the starboard bow than the green light when :6.rst seen. On the redirect he stated that the schooner "seemed to be coming for us 0.11 the time;" but he afterwards said that the green light, after being first seen, did broaden off on the starboard bow, and that no flash.light was shown by the schooner. Both the captain and the m.ate testifieu that the captain of the schooner, when he got aboard the tug, stated to them that he ordered his wheelsman to put the wheel to starboard, hut that the mate, instead, put it the wrong way, hard a-port. This ,was denied by the captain of the schooner. The tug and tow were going with the tide at the rate of about seven knots, and the schooner at about an equal speed, so that they were appr.oaching each other at the rate of about 14 miles per hour, or a mile.in a little over four minutes, or about 1,250 feet per minute, and 20 feet per second. rt is impossible tha.t these two of the positions and courses oi. the respective vessels can both be correct. If the schooner's green ,light was seen, as stated, upon the steamer's starboard bow only, up to within a minute of the collision, it is impossible that the steamer's red light should have been seen at all, up to that time, by those on board the schooner, much less upon the schooner's port bow, as sworn to by those on board the schooner. Neither vessel had any proper lookout, properly stationed. That a master in charge of the navigation, standiug abaft of the wheel, is not a proper lookout, has been often adjudged. St. John v. Paine, 10 How. 585; '1'he Ottawa, 3 Wall. 268; The Nabob, 1 Brown, Adm. 115; The Genessee Chief, 12 How. 462-3. Testimony to that effect was given upon the trial; and the statement of the captain, that the spray thrown up by the vessel forward rendered the after-part of the vessel a better place for observation, cannot be accepted. The seaman who came up and went forward just before the collision, in my judgment did not come on deck at the time he said he did, some five minutes before the col. lision, but, as the master testified, only shortly before, when the shouts caused by the impending danger attracted his attention. He came up, not on duty, but for his own safety, and too late to be of (my service in the navigation of the schooner. So the steamer, like. wise, ha·d only the pilot and the captain in the pilot-house, and these have been repeatedly held not to constitute a proper lookout.
his
201
The Nabob, 1 Brown, Adm. 115, 124:; The Ottawa, 3 Wall. 268j The Catharine, 17 How. 177. The wapt of a proper lookout, it is true, is immaterial, if it in no way contributed to the accident, (The Farragut, 10 Wall. 334:; The Fannie, 11 Wall. 238, 243;) but the question here is whether the lights visible frQm the one vessel to the other were in factcorreetly. seen and noted; and whether the witnesses, in tlie accounts 'they give, did see what they now profess to have The presence 01' absenceof a propElt lookout, and the' position ofthe:",itnesse's, and import'ancEl', the probabilities of correct observation, are of the where the accountsgiveri are 'irreconcilable. ' , , ' , .: The the captain and pilot in the pilot.hollse iof' 'the steamer, within 1,5 or 20 feet of her bows, would be for the most' part as favorable for observation as the position of a lookout proptlrupbn the deck fo;rwardj yet it is not impossible red, the schooner, if hidden by her from the 'pilot-house;triight,i :lJ;t: some moments have been visible from the deck. 'But the positioifof the captain of thl{schoonerabaft of the wheel cannot De adinitteid for a' moment as a proper. position for: a; lookout, when sailing full and free with a stroI:!g wind, aJ;ldin case of a conflict observation reported from such a position must be d.eemed partial, interrupted, and incomplete, and entitled to far less weight than'Hi/it of a lookout pl'Operly stationed. The changes of the lights of the steamer. as he testifies they were seen from the schooner just before the collision, could not, in' my judgment. have been caused, as he alleges. from any corresponding chl!onges in the course of the' steamer during the very short period of time in which they are said to have occurred. He says the steamer changed from red to green, and back again from green to red, followed immediately by the collision, and all so quick that the two orders. first to starboard his wheel and hard a-port. could not be fully executed in the interval Of these changes. It is impossible that the steamer. encumbered by a tow, could have swung first one way and then the other, so much as to change these lights in so short a space of time. The changes are wholly denied by the captain and by the pilot of the steamer. who say that the only change they made was that of a port wheel after the schooner's last change, viz., putting her wheel hard a-port. and any such repeated changes by the stoomer as alleged by the captain of the schooner are in themselves highly improbable. The Wenona, 8 Blatchf. 499, 504. .
202
REPORTER.
The testimony of. Lutz, the relied on to confirm .that ·of the master, I do not accept, because I think he came up on deck and went forward .atthe timeqf ,the excitement occasioned by the apprehension of .an immediate collision. The lipellants' account, cannot, in my therefore, of wha.t preceded a.nd led to the judgment, be relied on. The testimony and circumstances, taken all together, lead to the conclusion that the vessels were approaching ea.ch other, from the first, nearly head 0ll; that the schooner was a little, to the eastward of the steamer in the riv;e;" upon, a general cqurse directed nearly straight downward, but yawing considerably on each side, but more to windward, and thus making up continually towar4s the stem of the steamer, as the captain of the latter testified; and that the steamer was heading very nearly directly upthe river. This is confirmed by the testimony of the oaptain of the barge, who' testifies that he saw both lights of the schooner directly ahead, haIfa 'mile distant, that she came down so nearly head on that he, could which side of the steamer ah'a would pass. The the ,Wlot of the steamer do not admit .seeing the two lights of the schooner at that distance, but only the green light, and it is suggested that the red by the schooner's jibs. The two lights of the light was steamer shQuld at the same time have been visiple, upon the schooner, and, in my judgment, would have been seen by, a lookout upon her bow. It is quite likely that the captain, as hetesti:fles, saw, while standing by ,his starboard-quarter rail, the steamer's vertical white lights a good deal upon his port side, when the schooner was yawing extremely to windward; and that, on account of the distance of the light to port, he. did not keep anY,subsequent watch upon it; that the steam.er's. lighti;l were Dlore less obscured by the schooner's sails, and tha.t it was not mltil. they were close upon her that either the steamer's red or green light was seen; that the sudden and unexpected appearance of these lights iti succession-first the red and then the green light-led to' the shouts of hurried and. confused orders, startled the seaman off duty bel0'Y and brought him on deck, and that the apparent cha,nges.of the steamer's lights were only.such as he success!vely saw iq the moments of excitement, which did not permit of 'his itscertaining the true course and bearing of the steamer, and led CQutBe. I " : The teshmonyof the captam and mate of the. steamer on, I think, that was some-
'. :I. , , :
'268 what upon the tug's starboard bow, sO"that it isimpo$sible to say that the schooner's change of course did not contribute to the collision; If any change of course by the schooner was justifiable, it was only by starboarding the wheel, and not by porting. ' The failure of the schooner to show a torch-light, as required by section 4234 of the Revised Statutes, must also be held to be a fault in this case which contributed to the collision. There is no reason to doubt the testimony of the captain and pilot of the steamer that they saw the schooner's green light for a considerable time before the collision. Their failure to see the red light also, which was seen by the captain of the tow' and which must have come into view more or less, can only be accounted for by gross neglect in observation, or else by the red light being for the most part obscured by the schooner's jibs. The relative situation and courses of the vessels were such that Buch obscuration is quite po'ssible. Had the captain of the schooner, or any proper lookout, been forward and Been the situation of the steamer, he would, have known that this was possible, and would have been bound to take preclLutionsagainst it. The Wenona, 8 Blatchf. 499, 512; The Vesper, "9 FED. REP. 569, 574. The exhibition of a torch-light in such a case w(mld have put thestelLmerupon her guard, and repaired in a measure the misleading effect of the obscuration of the red light. The case is therefore within the decisions in the case of The Eleanora, 17 Blatchf. 88,101-2, and in Cmwlord v. The Niagara, 6 FED. REP. 910; since it is impossible for the court to say that the exhibition of a torch-light would not have conveyed additional information to the steamer Tor avoiding the collision, (The Alabama, 10 FED. REP. 394;) arid it is only where it clearly appears that the exhibition of atotch-light could not have served any useful purpose, or given any additional informationaato the position or course of a sailing-vessel, that the omission to comply with section 4234 ca.n be held to be immaterial. Schooner Margaret, 8 FED. REP. 870; The Leopard, 2 Low. 241; Kennedy v. The Sarmatian, 2 FED. REp. 911; Waring v. Olarke,5 How. 441, 465. ' The schooner was therefore in fault for not keeping a proper lookout, arid for failure to'eihibit a torch-light; and het change of course was in the wrong direction and contributed to the col,lision. I think it must also be held that the tug'was in frinlt iil nothav:ng a proper lookout, and in not: taking any steps seasonably to keep Out of tlie',way of the schooner. The testimony bf the pilot, that tbe sohooner was so flir .tothe eastward tha.tthe tug without change of
course woold have passed 500 feet clear of her, is not,,I thInk, ,to be relied on. His account of the situation differs materially from that given by the captain, and both differ from that given by the captain of the tow. The local rules required the steamer to be upon the easterly side of the .river. The pilot says she was three-fourths over, while all the other witnesses say she was in the middle of the river. The pilot says that the green light of the schooner was broadening off on his starboard bow as she approached. The captain, on his direct examination, said that the red light, when it first appeared, bore onehalf a point 'on his starboard.bow, and was about 300 feet off; and on his cross-examination he said repeatedly that the green .light was continually approaching the stem, instead of broadening off, from the time when .he first saw it, three-quarters of a mile distant, till the red lightappetJ.r,ed,and that tb.e,schooner "seemed to be j118Jkingfor us all, the time,i"and examination, that he would have. cleared if sqe had by 300 feet, but. on put it at 100 feet only, ,instead of, 400 or 500, as testified by ,the pilot; while the captain of the tow, who saw both her sbfl caIP,e so near on that he could not tell on which lights, . side, she would pass. ThepilQt says he was not watching her lights all the time; and had the schooner been so far to the eastward as when she first showed her red light, i. e., so as to pass from to 500 feet clear; and being at that time only 300 feet off, is incredible, no matter how sudde;nly the captain of the schooner may have been surprised on first seeing the steamer's.colored lights,t4at he should have ported and, ran far ov,tof his course a.cross the ate,aJ;ller's bows; nor, in that. could 'colored ligh ts hltve ,failed to. have been, ss.en, much earlier. Han ey v. The etc., 23. How. 291 ; The Carroll, 1:E3EUl. 290. , Just how span, the captain of the up to oQser,vethe is an He says he first saw the. green light three-quarters of. a mile off, one to one ,and a half, points on b";: that this light drew up to half of his When '300·feet distltont the green·light was shut in and the ,red Ught came SUddenly in yiew; yet, though the schooner. was so ,nearly directly upon her. no ,whl;Ltever to out of the way·. Whether, thereforEl, re,gard be had, to .the testjJ;llpnyof the captain of the tow, who saw both ligqts, OJ; to thtJ.t of the.captain ofth;6,;steamer, who hesa'r0n1y one, and that. one C9D,tinually drawing p.earer to the stem of the,steamer, I t};link it,qleal
TBB' EKCELSIOB.
that he tOOK no such seaBonableprecautions to avoid thesohobJiellBi is incumbent upon a steamer, even with a tow. The Favorite, 9 FED. REP. 709; The Nabob, 1 Brown, Adm. 115. Where there is plenty of seal-room, a steamer encumbered by a tow is for that very reason bound to take early precautions to give a ing-vessel ample margin for passing. The evidence in this case shows that for a considerable period before the collision the vessels continued to approach each other nearly head on, at the rapid rate of nearly 14 miles per hour; yet the staamer made no change in her course till after the schooner's red light appeared, some 10 to 15 seconds only before the collision; while if both the schooner's lights were not seen, bilt only the green light, in consequence of the red light being obsoured by the jib, I1evertheless, the failure of the scboonerto haul more to starboard under the green light exhibited, as would naturally have been expected, and the fact that she drew up continually in the opposite direction, which I think is proved, notwithstanding the captain's final modification of his testimony, was sufficient to apprise the captain of the steamer of some exceptional circumstances in the situation which required him to keep well off,'and also to sound signals of alarm, neither of which was done. His final change 9f just before the '!as sufficient probably to avoid IQuch injury to the schoonef by the steamer itself, but ineffectual to save the tow from colliding with and sinking her. /i.s respects the barge it is claimed ,by the libElllants that she:niight easily have avoided the collision by porting her helm; and that, being some 50 fathoms astern of the steamer, had she donesothecollision between the tug and the schooner must have been avoid-edt All the witnesses, however, agree that steamer.'s whistle. was broken off as she was raked by the boom of the schooner, and that the immediate escape of steam was so great as completely to obstruct further obl:lervation. The captain of the tOw testifies that as soon' as 'he 'saw theschoonsr :coming down on the port side he immediately' ported his helm, and did what he Oduld to avoid her, and that he did 'not previously know 'on which aide' 'of she would: would seem that there must have been two or three not more than that, considering the combined speed when, if he had beeu on the'strict wll.tch, hefuight have seen the light of the' schooner as she ptt.ased to the port side of the 'sveltther before the escape of steam' hadobatructed the view ; but ll.El'the captam of the tow was n'ot primarily respoD8ible forthenatigati6n,i :ubi-
206
FlIlDEBAL BllIPOBTIlB.
bound,to keep a striot and oonstant lookout for'VeB8els ahead, I think he is not chargeable legally with knowledge, against his own testi· mony, for what he might have seen during the short space of two or three seconds; and that his failure to notice this momentary appearance of the schooner's light on the port side before it was obscured by the escape of steam, which might, if it had been seen, have led him to port his helm sooner, is not legally chargeable against him as negligence; and there being no other fault chatgeable against him upon the evidence, the collision of the tow with the schooner must be charged to the fault of the steamer, which was responsible for her navigation. The libel should be dismissed as against the Excelsior, with costs, and the libellants should have judgment against the Atlas for one.. half their damages, with costs, with a reference to compute the damages.
Tm: A. R.
GRAY.
(O{,rcuU Oourt, E. D. New York.
May 27, 1882.)
CoLLISlON-TUG AND Tow-FICTITIOUS DAMAGES. Whete a boat was towed out of a crowded slip stern foreD..lost by a tug, and was drawn againstthe bow of a canal.boat lyillg in the slip, the owner ofwhich libelled the tug and claimed $1,000 damages for the collision, and on the trial the damage proved was a crack in the bow-stem of the canal-boat so struck,to repair which perfectly at the present time it might be necessary to take out the stem and rebuild the bow,-while the claimant of the tug brought many witnesses to show that the crack walla" season cl1eck," the e:Q:ect of weatheJ: and not the result of collision, and could have been drawn together with bolts at the time at a trilling expense, Mld, that the libel must be dismissed, on th& evidence; with' costs against the libellant.
C. CampbeU, for libellant. tV. W. Goodrich, for respondent. BENEDICT, D. J. I entertain. no doubt that the claim of nOW made for damage to the libellant's boat by,the collision referred to in the libel, is in great part, if not wholly, fictitious. .The split in the stem. which the libellant ,asserts was caused by·the collision, but which decla.re to l)e a. "season check," may ha.ve ,been caused by the. oollision referred to j but, if such be. the fact, it dqes not follow that, any appreciable damage to the boat resu.lted is a great weight otevidence to the effect that thetherefrom. ,"boat was not injured. I am ,entirely clear in, the conviction that. 71.
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