500
FEDERAL REPORTER.
continuing to back, or in going under a slow bell, as they had beg';ln, until the schooner again crossed on her short tack. Instead of domg this, the tug attempted, with, I think, obvious imprudence, to run ahead of the schooner, and she thus brought about the collision; but as the tug's purpose was sufficiently obvious to a proper lookout on the schooner, and the danger of collision being apparent, and as the schooner might, by either porting or starboarding, have avoided the collision, the damages must be divided, both being in fault.
MORTEN
v.
FIVE CANAL-BoATS.
(District Oourt, D. New Jer8ey. July 13,1885.) 1. 2. COLLISION-NEGLIGENT NAVIGATION-BuRDEN OF PROOF.
In a suit to recover for damages caused by a collision from careless and negligent navigation, the burden of proof is on the libelant. SAME-CANAL-BoATS SLoop-iMPROPER ANCRORAGE-]'AULT-EvIDENCE.
On examination of the evidence in this case, held, that the sloop was in fault in anchoring at the place where she did; that the evidence of negligence on the part of the canal-boats with which she collided was not sufficient to entitle her to recover; and that the libel SllOUld lJe dismissed.
Libel in rem. Hyland <£ Zabriskie, for libelant. Frank L. Hall, for respondent. NIXON, J. This suit is brought to recover damages arising from a collision between the fishing sloop Flash, of which the libelant is owner, and five canal-boats, the property of the Philadelphia & Reading Coal & Iron Company, of which corporation the claimants are receivers. It appears that on the sixth of December, 1884, the Flash was bound up the North river, and, being overtaken by a storm, anchored off a coal-pier at Jersey City about sundown; that about the time of casting her anchor she was notified by the employes on the pier that she would be in the way of the boats coming for coal and water; that, in order to get out of the way, leaving the anchor where it was first cast, not far from the river end of the coal-pier, they began to payout the cable. The wind was strong from the south-east, blowing the sloop into the slip between the coal-pier on the south and the dock of the New Jersey Central Railroad Company on the north, until she was floating within about 15 feet of the said dock, her cable stretching acrOS8 the slip 80 fathoms or more to the anchor. The slip was less than 400 feet in width, bounded on the northern side by the wharf, or dock, of the said railroad company. This was 700 Qr 800 feet in length, at the lower end of which, next to the river, the five canal-boats were moored,-fastened together, with their bows to-
MORTEN '11. FIVE CANAIrBOATS.
501
wards the river,-three of them (Nos. 71, 70, and 7) in front, and the remaining two (Nos. 6 and 31) in their rear. The libelant's sloop was held by her anchor and cable stretching diagonally across the slip, a short distance behind the last-named boats. As the wind increased later in the evening, the canal-boats were exposed to the full force of the gale across the river, and found themselves in an unsafe and dangerous position. At about 9 o'clock P. lIf. they were unloosed from the dock, in order to go further into the slip, whither they were carried when unfastened by the force of the wind. In this movement they in some way got entangled with the cable of the sloop, and were brought into collision with her, doing her considerable injury. The libelant claims that the accident was caused solely by the negligence, mismanagement, and bad navigation of the canal-boats. The respondents reply that the sloop was lying where she had no business to be, and that she was warned to get out of the way before any attempt was made to move the boats. The suit is for damages for careless and negligent navigation, and the burden of proof is upon the libelant. He must show affirmatively carelessness and negligence in the management of the boats. The testimony is so contradictory that I am afraid all the witnesses have not been careful to speal: the truth. There were two persons on the sloop,-the master, who appears to have been below in the cabin until about the time of the first collision, and a seaman named Johnson, who was on deck as watchman. They both swear that they had no information or warning that the canal-boats intended changing their position by dropping from their moorings into the slip, until they were adrift and in contact with the sloop. On the other hand, three of the captains of the canal-boats-Hopkins, of No. 71; Dautrich, of No.7; and O'Connell, of No.6-agree in the statement that some time before the canal-boats were moved-one of the witnesses states half an hour, and another three-quarters of an hour-notice was given that they were about to move into the slip, and that the sloop must be removed out of their track. They are quite sure that the notice was heard and understood by those on board the sloop, as a reply came back from some one, saying, "A 11 right." I think the weight of the evidence is that timely notice was given, .and that the respondents are not liable for any damage which arose to the libelant by continuing his boat in such an anchorage. But, independent of the evidence on this point, the libelant has hardly presented a case which entitles him to damages for injury to his sloop. She was lying at anchor at an improper place and in an improper manner, and the law is well settled that she must take the consequences resulting therefrom. Casting his anchor near the south side of the entrance to the slip, he paid out 80 fathoms of cable, until it .almost reached the wharf upon the northern side,-the wind carrying ,the vessel diagonally across the slip. He was lying at anchor within
502
FEDERAL RErORTER.
a few feet of sbore, althoughtbe uncontradicted proof is tbat the rules and customs of the barbor of New York and Jersey City forbid vessels from anchoring within 200 feet of shore. There was no stress of weather that justified him in mooring the sloop so near the dock that canal-boats, two or three abreast, could not have room to pass along the wharf without coming into contact with his cable, or in collision { with his vessel. The libel must be dismissed.
THE FERN HOLME.
(Di&trict Court, D. New Jersey. 1.
July 17, 1885.)
CARRIERS OF GOODS BY WATER-DAMAGE TO CARGo-IMPROPER STOWAGE.
On the evidence in this case, it cannot be said that the damage to the cargo was caused by improper stowage, and was not the result of the rough weather experienced on the voyage.
2.
SAME-DELlVERY-SHORTAGE-EVIDENCE-HILL OF LADING.
When the bill of lading acknowledges the receipt of 514 bags of canary-seed, .. weight, contents, and value" unknown, it will require more than naked proof that a weigher foun.! some of the bags a few pounds short in weight to !lold the vessel responsible for the shortage.
Lorenzo DUo, for respondent. J. On the eighteenth of December, 1883, W. H. Cole & Co. shipped on board the steamer Fern Holme, at the port of Liverpool, England, 514 bags of canary-seed for the port of New York. The merchandise reached its destination, and the libelants in this case, who were the consignees, received notice of its arrival on the seventh of January, 1884. The freight was duly paid and the delivery of the cargo demanded. It was landed from the steamer onto the dock at pier No. 43, Nortb river, when it was discovered that a number of the bags containing the seed were soiled by coming into contact with a Venetian red powder, which composed a part of the freight, in barrels, and which from some canse had escaped from the barrels during the voyage, causing the damage to the saeks. The libel alleges that the injury arose from careless and improper stowage, and demands damages, not only for that injury, but because the respondents refused; for the period of eight days after the freight was paid, to make delivery of the seed to the consignees, whereby a loss accrued to the consignees from a decline in the price, and also for a shortage of 386 pounds in the amount of seed subsequently delivered. The answer denies these allegations, and they are the only issues which are raised by the pleadings. It appears from the evidence that as soon as the consignees were NIXON,
s. B. Ransom, for libelant.