486
FEDEaAL REPORTER.
also McClender, the former pilot, and both knew the situation of the a proper oourse was not taken steamer Butte. It is quite clear by the MoCleod. She ought ,p.ot to have been placed in the position she ocoupied until the Butte was laid upon the ways, in place, .and securely fastened. The master, or person in charge, for whose aot her owners are responsible, was to blame in allowing her to be di'opped down at the foot of the ways in front of the Butte. It was a negligent act and contributed to the injury. A decree will be entered in favor of the defendants lOt costs.
THE
AMANDA. POWELL. December 2, 1882.)
(Oircuit (Jourt, D. Maryland. COLLISION NOT PROVED-DISMISSAL OF WEL.
Upon a careful consideration of the evidenee JYT't1 and con In this ClUla, It was held that the alleged collision was not proved, and that the libel muat be dis-
missed
1n Admiralty. Appeal from district court. John H. Thomas and G. L. Thomas, fQr libelants. I. A. L. McClure and A. Stirling, Jr., for tug Amanda Powell. R. H. Smith, for schooner Silver Spray. BOND, C. J. This is a libel for a collision which took place in the harbor of Baltimore. The faots relating to it, so far as they can be definitely ascertained, appear to be these: The barge I. I. Munder was lying at the west side ot Jackson's wharf, and fastened to it by lines from her bow and stern. Directly opposite her, at another wharf, the bark Nokomis was lying, there being between the bark and the barge a water-way sufficiently wide to permit the schooner Silver Spray to pass, and to lay at the wharf above the bark. The barge was laden with corn. At 5 o'clock in the morning of the nineteenth of September the tloating elevator Hattie bad removed all the corn which WalJ contained in the bow of the barge. which could be reached through the forward hatch, and left her with her bow elevated and her stern depressed, the weight of her cargo being astern. Between 9 aud 10 o'clock of the same morning the steam-tug Amanda Powell unciertook to place the Silver Spray at Jackson's wharf. On arriving at the wharf she was halted by the agent of the Northern Central Railroad Company, which apparently controls the wharf, and was told to wait until the agent could see whether the Silver Spray was entitled to a berth there. This having been immediately ascertained affirmatively, the tug, which was lashed to the side of the schooner, proceeded up the dock witb her
THE AMANDA POWELL.
some 15 feet. and until sbehadentered the water-way betweeil tbe . . argoa the bark Nvkomis. Thera she parted from her, there not being room fQrboth of.them.to pass, and tbeschooner was hauled up to her place by lines from the wharf about her windlass. It took about half an'hour.to pull her past the barge, which itself had to be removed from its moorings lower down tbedockto give the schooner berth-room at the head of the 4ock.. 'Shortly after .the barge was found to be sinking; and upon snbsequent examination it was discovered she had a hole in her starboard side, which was that next the wharf, about eight inches long and tbree inches wide.
n.nd
The libelants allege that the injury to the barge arid cargo was owing to the collision of the schooner with her, while in charge of the tug, as 'she was endeavoring to pass between the bark and' the barge. The respondents deny that there waElany such collision, and affirm that the sinking of the barge after the schooner had passed was p08t hoe and not propter Me. ' ' in direct conflict. The evidence; as in most cases ,of collision; Three witnesses 'for the libelants, who were on the _bark, say they not only saw the collision but heard a crash at the time which could have been heard 60 feet; while the agent of the railroad states that he watched the whole process, and that there was no collision, and that he heard no noise whatever, though ho was on the wharf and was separated from the schooner, as she passed, by the width of the barge. Yet another witness states that he was on the barge during the passage of the schooner watching the movement, and there was no collision and no rolling dr motion on the part Of the barge. Of course, the crew of the schooner and the tug deny that the schooner collided with the barge, which apparently had no crew,-at least none on board., the captain of it being a block or two away at a drinking.. house. .I have riot reoited all the testimony pro and con respecting the faot of collision orno collision. Suffice it to say that it is equally contradictory. Under this state of the evidence, to say the least, it is difficult to determine what the facts are, from: the paroltestimony. 'Jlhe libelants are required to make out their case by a preponderance of testimony before they can recover. I have carefully thought over all of the testimony, and cannot bring my mind to the conclusion that there was any collision at the time at all. The witnesses who were on the bark say SOt but their description of the process by which the tug undertook to put the schooner in the dock upon her arrival is clearly untrue. They make a mistake as to which side of the schooner the tug was on, and are wrong in their statement as to the manner she turned the schoonerts bow around. The noise they describe is altogether too great for the
is
488
,"fEDERAl. nEPORTER.
aneged occasion of n, and had tile collision occurred in the way they <-state, and with the foree they say it did, there would have been some trace of the blow upon the starboard side of the schooner and upon the port side of the barge. But. there was no trace of any blow to be :found, the damage to the barge being upon the side of it next to the w4arf-her starboard side. Moreover, it scems to me that had the tug swung the schooner's bow around against the barge as these witnesses describe it, when her anchor was hanging from her cat-heads in the water, there would have been some mark or rupture made by it, either upon the barge,or schooner, or upon both. All the facts of the case seem to show that no reliance can be placed upon the testimony of these witnesses. It appen,rs to me, likewise, that had the collision occurred as the libelants' witnesses stated it did, the character of the injury to the barge would have 'btJendifferent. It would have been, not a hole (1iglJt inches long and three or four wide, but a crushing of her planking, extending over a considerable space. Nevertheless, shortly after the schooner was docked the barge began to sink. It is impossible to tell, and it is no part of our duty to ascertain, when it received its injury. The carelessness of her captain, who apparently leaves her to take care of herself, to be moved around by everyone who finds her in the way, would allow such an injury to be given without knowledgeof it at the time. It is quite likely that this hole in her had been made by the elevator, or even before the elevator reached her, and when tue corn was removed from her bow the depression of her !'Item submerged the orifice, and, making water slowly, she began to sink. Whether this was so or not, I am of the opinion that the great preponderance of the evidence is that there was no damage done her by t,llese respondents. The libel will be dismissed.
THE HUDSON.
4&9
THE HUDSON,
ate.,
R,na
'mother. 24.1882.\
(Di8trict Court, S. D. N6'IJJ :Lork. COLLISION-RuLES OF NAVIGATION,
A steam-tug having another tug, with which there Is danger of collision, on her own port hand, is bound by the twenty-third rule to keep her course; and it is no defense to a violation of this rule to show that she blew two whistles, and at once sheered to port in order to give the other tug more room to cross her bows, other tUg designed to cross the stream, the latter on the supposition that not having given any answering signals assenting to this maneuver; and where a collision ensued from such change' of the former was held liable. "
In Admiral,ty. E. D. MdCarthy, 'for libelant. Benedict, Taft d: Benedict and S. Y. for the Scudder d: Garter and G. k Black, for the Yosemite. BROWN,D. J. . The libel in this case was filed by the owner of thi:l canal-barge Shoe, 'to recover'damages for a collision on 1 the 'foutthdf' February, 18$0, with the schooner Yosemite, in Buttermilk channel, whereby the barge was sunk. The Yosemite was intow of the steam-' tug Hudson, upon a hawsel' about 20'0 feet long. As they were coming tlpabout the middle of Buttermilk channel; with a strong tide, the captain of the Hudson, when about abreast of the blackbuoy, saw the steam-tug E. A. Packer, with the Shoe in tow, lashed upon' her starboard side, coming down :the stream near Governor's and not far from the government :docks. Shortly afterwards he two blasts of his whistle, and; without waiting for any teply, he immediately starboarded his helm, 'designing to go to the left, between the E. A. Packer and Governor's· island. In doing so the Hudson went about 75 feet clear of the barge, but the Yosemite, unable to keep in the wake of the Hudson, and being swept further out by the· strong tide, was drawn against the stem of the barge and sunk her. Those on board of the Yosemite did all that they could to keep away from the barge, and n() fault being found in them, the libel, as to the Yosemite, must be dismissed; with costs. The Hudson was plainly in fault, and must· be held liable on several grounds. The E. A. Packer, with her tow, having a strong adverse tide out in the stream, was making her way just inside of the eddy, along the line of the shore, and at a distance of from 150 to 200 feet therefrom. 'When first seen from the Hudson she was above the elbow formed by· the shore line below the government docks; and was therefore pointing somewhat across the channel and towards the
