164
FEDERAL REPORTER.
prove effectual in removing the obstructions that have so long made that passage .dangerous. The libel is dismissed, with costs, as respects the City of Springfield i and the libelant is entitled to a decree against the Edna B. T{ing, with costs.
LAW
v.
BAKER
and others.'
(District Oourt, N. D. illinois. January 4,1886.)
1.
COLLISION-MANAGEMENT OF VESSELS IN Tow·
. A tow was made up as follows: Libelant's schooner next to and astern of the tug; astern of the libelant, a second schooner; and astern of all, a third, that of the respondents. The distance between the stern of the first'and the bow of the last schooner was about 1,200 feet. Each schooner had some por· tion of her sail set, but as the wind was light and ahead, the sails of all were trimmed fiat aft. A squall came up, and with it the wind increased and shifted, coming out on the starboard quarter of each of the vessels. Libel· ant's vessel, by reason of the fact that her head-sails were down and her after· sails set, was forced up in the direction of the wind, but was prevented from going around by a counter-force, that of the hawsers, by which her bow was secured to the tug, and her stern to the second schooner in the tow, the latter vessel having in the mean while, in consequence of the squall, left her original position astern of the libelant, and had ranged up on her (the libelant's) port side. The third schooner, that of the respondents, was cast adrift by the second, and collided with the first. Held that, under the circumstances of the case, the collision was caused by no fault of the respondents, but by the negligence of the libelant, in having the vessel under after-sail only, whereby she became unmanageable.
2. SA1IIE-LoOKOUT. Held, that the collision having been caused by the negligence of the libel-
8.
ant, the temporary absence of the respondents' lookout, not having contributed thereto, was immaterial.
SAME-CREDIBILITY OF TESTIMONY.
Held, that the credibility of the testimony of libelant's crew with regard to the movements of respondents' vessel is much weakened by the fact that they were panic-stricken, and took to their boats as soon as respondents' vessel was seen heading towards them.
In Admiralty. W. H. Condon, for libelant. Robert Rae and O. E. Kremer, for respondents. BLODGETT, J. The libelant, as owner of the schooner Lizzie Law, seeks to recover damages sustained by the Law from a collision which occurred on the waters of Lake Huron on the night of June 8, 1882, between said schoouer and the schooner R. B. Hayes, owned by reo spondents. The admitted facts are that on the night in question the tug John Martin was proceeding down Lake Huron with the schooners Lizzie Law, W. S. Crossthwaite, and R. B. Hayes in tow, in the order named. The course of the tug was about S. by E., and the wiud about dead ahead, when the wind shifted to N. N. W., and a 1 Reported
by Theodore M. Etting, Esq., of the Philadelphia bar.
LAW 17. BAKER.
165
squall came up, which resulted in putting the Hayes and Law into such positions relative to each other as to cause the collision. It is claimed on the part of the libelant that the collision was caused by negligence on the part of the Hayes in not having a sufficient watch on deck to properly handle her in the squall; that the sails carried by the Hayes before the squalL came up should have been taken in before the squall struck; that the Hayes, when struck by the squall, changed her course, and went off to the westward, and then changed her course to the eastward, and ran into the Law, as the Law was following astern of the tug; that the Hayes had no proper lookout; and that the collision occurred by reason of these changes of course, insufficient watch on deck, and want of proper lookout on the part of the Hayes. The case was referred to the commissioner, who heard the proof, and finds by his report that the Hayes was at fault, and that respondents, her owners, are liable for the damages sustained by the Law. To these findings of the commissioner the have excepted, and the questions of fact before the commissioner have been reargued. The proof shows that the night was pleasant up to about half past 10 o'clock, with but little wind, and that from nearly the same direction in which the tug with her tows was running,-that is, about S., or S. by E.; that all the schooners in the tow had a part of their sails set, but trimmed flat aft, so as not to impede the tug; that the Law was towed directly astern of the tug, with about 500 feet of line; the Crossthwaite, directly astern of the Law, with about the same length of line; and the Hayes, with about the same line, astern of the Crossthwaite. The Crossthwaite being about 200 feet long, the distance between the stern of the Law and the bow of the Hayes would be about 1,200 feet. It is difficult to determine from the proof, with even approximate certainty, just how much warning the officers and crew in charge of the decks of these vessels had of the approach of the squall. But it sufficiently appears that there was some warning or indications of a thunder storm gathering in the north-west, and the crews of all the vessels seem to have done something towards taking in part of their sails. All agree that thG squall was of very brief duration, and not very heavy or dangerous at any time. It seems undisputed, also, that the Crossthwaite ran up and passed the Law on the Law's port side, so that at the time of the collision the Law layoff the starboard side of the Crossthwaite. It is contended on the part of the respondents that when the squall struck them, the Law had taken down her forward sails, leaving her after-sails up, or part of them, so that when struck by the squall from N. W. or N. N. W., she broached to, or came up towards the wind so as to lie directly athwart the course of the Hayes, thereby causing the collision before the course of the Hayes could be sufficiently changed to avoid it. A careful study of the testimony satisfies me
166
that the head-sails of the Law were taken in, and the mainsail and part of her mizzen were up when the squall struck her, and that with these sails trimmed flat aft, and the squall coming from N. W. or N. N. W., the Law would naturally broach to or come up to the wind, the only force to prevent her from coming clear around being her towline attached to the tug; and with the Crossthwaite off to the eastward or port side, her tow line would naturally help to hold the Law in this position,-that of lying nearly broadside to the wind. The proof from the tug is, to my mind, quite conclusive that the Law did broach to, as is contended on the part of the respondent; and that, while she lay thus broached to, the lookout of the Hayes, when from 300 to 400 feet from her, saw her position, when the wheel of the Hayes was put to starboard for the purpose of keeping off and passing under the Law's stern, but they were too near to make this maneuver successful, and the collision occurred. As to the alleged negligence on the part of the Hayes, the proof satisfied me that her head-sails were up and that her mainsail had been taken in before the squall struck her. With her sails in this position, she could not have gone off to the westward by the action of a N. W. or N. N. W. wind, unless her wheel has been put hard over to port, which was not done; that is, all the affirmative proof is that it was not done, nor ordered to be done, and there was no occasion for giving any such order. The proper thing for the Hayes to do under the circumstances was to follow, as nearly as she could, in the line of the other tows ahead of her, and this the officer of her deck and her wheelsman testify they endeavored to do; that is, they kept their course. For some unexplained reason the line of the Hayes was cast off from the Crossthwaite, but I do not see that this in any way affected or brought on the collision. Probably when the officer in command of the Crossthwaite saw that he must change his vessel's course to avoid the Law, which had broached to ahead of him, he also thought the line of the Hayes would embarrass him in swinging clear of the Law, and cast it off for that reason; but this is mere conjecture, as neither party deemed the matter of consequence enough to prove or attempt to prove why it was done. As I gather the facts from the testimony, it seems impropable to me that Capt. Leith, of the Law, could have seen the Hayes off 1,000 feet to the westward of him, and then seen her change her course, and come stem on towards the broadside of the Law. It seems to me much more probable that the Law lay broached to in the pathway of the Hayes, and while her officers and crew were engaged in their effort to get her mizzen and main sails down, without being conscious of the direction in which the Law was heading, they saw the Hayes coming directly towards their broadside. If the Law had been heading to the sonth, as she was·when struck by the squall, the Hayes must have been coming froI+l the westward to have been seen coming directly toward the Law's broadside; but if the Law had broached to, as I
LAW t7. BAKER.
167
conclude she did, then the Hayes, without change of course, would be seen coming stem on to the Law's broadside. The reliability of the testimony from the deck of the Law is much shaken, to my mind, by the fact that as soon as the Hayes was seen heading for the Law, her officers and crew took to their boats; and when the collision occurred, there was no one on the Law 'except a. seaman who had been sent to the mizzen cross-trees to loosen the mizzen halyards that had got fouled there. The fact that these men fled so precipitately on the first appearance of danger certainly very much weakens their reliability as witnesses as to what took place, either on their ship or on the Hayes. I therefore conclude that, at the time the collision occurred, the Law lay broached to in the course of the Hayes, and was held nearly stationary there by the action of the lines from her bow to the tug, and from her stern to the Crossthwaite, and that her broaching to was in consequence of the bad of her crew in taking off her jibs, and leaving on her mainsail and mizzen. All the proof concurs that the wind shifted to the north-west before the squall came up. A thunder shower was gathering in the north-west, and the premonition therefore was that if there was an increase of wind, it would be from that direction, and any seaman ought to have known that by taking off his jibs and other forward sails, he was putting bis ship in an unmanageable condition, and all the testimony agrees that if the Law's head-sails were up, and her after-sails down, she would have been unmanagable, and would have broached to. rt is also urged that the want of a proper lookout on the Hayes contributed to this collision. The proof shows that the watch. on deck consisted of the second mate, Wilson, and the wheelsman, and that Wilson acted as lookout. ' In a quiet night such as the proof shows this to have been, this would seem to have been a sufficient watch for a vessel in tow of a tug, as the Hayes was: The captain of the Hayes was disabled by a sprained or broken ankle, and as soon as the weather became threatening, the first mate was called, who came at once on deck, and he and the second mate lowered the mainsail, and it was fully down five to ten minutes before the squall struck her. As soon as the mainsail was down, Lawson, the mate, went forward as lookout, and remained there till the collision occurred, the second mate remaining near the wheelsman; and when the order to starboard the wheel came from the mate on his sighting the Law broadside to ahead of him, Wilson helped the wheelsman to promptly execute the order. I cannot see what could have been done by more men, if they had been on deck, than was done by these towards averting the collision. The movement of the Hayes through the water was probably accelerated by the wind, and the Law was seen by Lawson, acting as lookout, as soon as the mist or fog would allow, and more men on deck would not have seen her sooner. The Hayes was a logy, dull sailor, that did not respond promptly to her wheel, but not to such an ex-
1GS
tent as to make ber a dangerous vessel towards others in a tow that was properly handled. It is true that for a few moments while the second mate was calling the first mate, and while they were tll,king in the mainsail, the Hayes had no lookout; but this, it must be remembered, was before the squall struck her, and while all the vessels were in control of the tug, and in their proper places. With the squall, there seems, from the proof, to have come a blinding mist or fog, which. momentarily shut these vessels off from sight of each other; and when this fog or mist passed by with the squall that brought it, the witnesses from the Crossthwaite and the tug saw the Law lying with her head to the westward of her, and the Hayes was approaching her from the direction in which the tow had been running, and the collision occurred. If the Law had not been broached to, it would seem hardly possible that the two vessels would have collided. What the testimony shows as to the sailing and handling qualities of the Hayes confirms me in the conviction that she did not shoot off to the west in a tangent from her regular course, and then as quickly change and come back towards the east, and collide with the Law, but her very dullness would have helped to keep her in place upon her course; while the Law, being a quick handler and carrying a large amount of sail for her size, would, with her head-sails off, and her after-sails set, come up in spite of her rudder by the action of the wind from the northwest. It therefore seems to me that no such fault can be properly charged to the Hayes as contributed directly to bring abou t this collision, and I feel compelled to sustain the exceptions to the commissioner's report, and to find the respondents in no way at fault for the damages sustained by the Law. I may add that it seems to me the commissioner arrived at his conclusions by placing an undue weight upon the mere opinions of the witness Wilson, the second mate of the Hayes. When this witness testifies as to facts within his knowledge, he seems to me usually intelligent and accurate; but when he attempts to express his opinions as to whether the deck of the Hayes had a sufficient complement of men to insure her safe navigation, those opiuions seem colored with some peculiar views of his own as to the number of seamen that every vessel ought by law to be compelled to carry. The commissioner has also attached, as it seems to me, undue weight to the statement of Fitzsimmons, one of the mates of the Law, that the mainsail of the Hayes was up when he came on deck, just before the collision. As this witness had no better opportunities for knowing this fact than several others who have that testified it was down, the mere fact that the deposition of this witness, which was taken by respondents after libelant had failed to take it, should not, as it seems to me, endue his testimony with any more character for truthfulness than if it had been taken by the libelants. In fact, I cannot see that the qnestion whether the Hayes' mainsail was up or down is controlling; as, with
IN RE VESSEL OWNERS' TOWING CO.
169
q,ll her forward sails set, the mainsail alone, without aid from the rudder, would not have caused her to run off to the westward, as described by the captain of the Law. I regret to be compelled to overrule the finding of the commissioner, as no one more fully than myself appreciates his painstaking analysis of testimony, and his usually accurate conclusions as to the facts of a case. The exceptions are sustained. The finding will therefore be that the collision did not occur by reason of the fault of those in charge of the Hayes, and the libel dismissed.
In re Petition of VESSEL OWNERS' TOWING Co., to Limit its .Liability, etc. 1 (District OO'lfrt, N. D. Illinois.
January 6, 1886.)
Smps AND SmPPING-LIMITED LIABILITY OF VESSEL OWNERS-SECTION REV. ST., CONSTRUED.
4283,
A vessel must be engaged in interstate or foreign commerce to entitle her owners to claim a limited liability. A tug engaged in towing, into the waters and ports of other states, vessels engaged in interstate commerce is as much engaged in such commerce as are the vessels themselves. The purpose of the act was to limit the liability of the vessel owner, and it applies to any damage done by the vessel, irrespective of the locality of the thing injured, if there be no fault or privity on the part of the owner or owners of the vessel.
In Admiralty. On exceptions to commissioner's report. Schuyler <t Kremer, for petitioner, the Vessel Owners' Towing Company. F. M. Williams and M. St. O. Thomas, for Chalifoux. J. J. Flannery, for Murphy. Shufeldt <t Westover, for Hanson. Clarence Knight, City Atty., for the City of Chicago. W. H. Oondon, for Clifford and Mary and James Foley. BLODGETT, J. This is a petition of the Vessel Owners' Towing Company for limitation of liability, as owner of the tug Thomas Hood, for a collision with the west abutment of the Adams-street bridge, on September 28, 1883, by the schooner David Vance while in tow of said tug. The result of the collision was the fall of a section of the Adams-street viaduct, resting on the abutment, and injuries were sustained by the city of Chicago, as the owner of the abutment and viaduct, and by persons and property upon the viaduct at the time of its fall. This petition is filed under the act of congress passed March 3, 1851, to limit the liability of ship-owners, etc. The defense is that the tug was not engaged in interstate or foreign commerce, and was not, therefore, entitled to the benefit of the act. lReported by Theodore M. Etting, Esq., olthe Philadelphia bar.
170
From the evidence presented, two questions arise: First. Is the Hood such a vessel as entitles her owner to the benefit of the act of congress which limits the liability of the owner to the value of the vessel and her freight then pending? Second. Is the liability of petitioner for the damages in question such a liability as comes within the provisions of the law invoked; the abutment and viaduct not being in the waters of Chicago river, but upon the bank of the river adjoining the water? As to the first question. The act of March 3, 1851, (section 4283, Rev. St.,) provides that the owner of a vessel shall not be liable for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or incurred, without the privity or knowledge of such owner, beyond the value of his interest in such vessel and her freight, then pending; and while the act does not, by its terms, limit its operation to vessels engaged in interstate or foreign commerce, undoubtedly the power of congress to legislate on the subject is to be found only in the provisions of section 8, art. 1, of the constitution, which authorizes it "to regulate commerce with foreign nations and among the several states;" and if the tug in question is not a vessel employed in the business of interstate or foreign commerce, then she is not within the terms of the act of congress, and her owners cannot claim the benefit of its provision. While this tug does not herself carry freight or passengers, the subject of interstate and foreign commerce, the facts, as found by the commissioner, show tlJat her employment consists almost wholly in towing into and out of the Chicago harbor, and upon the waters of Lake Michigan, vessels that are engaged in such commerce, and that her voyages in such employment often take her from Chicago, her home port, into the waters and ports of other states, and it seems very clear that, as an indispensable aid and adjunct to such vessels, she may be said to be employed in such commerce, and, while towing the grain, lumber, and coal laden vessels which ply between the port of Chicago and other ports upon the Great Lakes, this tug is as much engaged in commerce as the vessels themselves; and in the present mode of doing business,-especially through the agency of sail-vessels employed upon these lakes,-the tug-boat is as much a part of the commercial marine as the vessels in whose hulls the cargoes are actually carried. From the nature of her employment,this tug seems to come within the principle of the law invoked. She, in pursuit of her business, is subject to all the risks and perils of the sea incident to a commercial vessel, especially to risks of collision and explosion. Her owner takes the same risk that she may, by colliding with another vessel, through the neglect or want of skill of the pilot or other employes, or by explosion, through the negligence or incompetency of an engineer, incur a heavy liability for damages, that is taken by the owners of vessels that ply from port to port upon the errands of interstate or foreign commerce.
IN BE VESSEL OWNERS' TOWING CO.
171
Therefore it seems she is clearly within the spirit and scope of the act of congress. The supreme court has said that "the object of this act was to encourage the building of ships;" by saying, in effect, that the "only risk of the owner should be his investment in the ship." And why ought not this rule to extend to a man who builds a tug-boat used in commerce, as well as to the ship that carries the commodities in her hold? As to the second question. It is conceded that if a towing tug, like the Hood, be a vessel within the scope of the law, and she had done damage, without the privity of her owner, while upon the waters of the Chicago river, to any vessel or property floating upon the river, the owner would not be liable beyond her value; but it is contended that as the thing damaged was not upon the river, and did not pertain to commerce, such damage does not fall within the intent of the law. The terms of the act, however, are very broad: "For any loss, damage, or injury by collision, or for any act, matter, or thing lost, damage, or forfeiture done, occasioned, or incurred without the privity or knowledge of the owner." the owner shall only be liable to the extent of the value of his interest in the vessel and freight pending. But the situation of docks, walls of warehouses, and bridge abutments. arising up from the water's edge renders collisions with them not only possible, but probable, and constitutes one of the perils of navigation while vessels are upon the waters of rivers or harbors. A steamer, for instance. is liable to explode at a dock in a harbor, and injure persons and property on the land to a far greater amount than her value; or a tug is liable to so handle her tow as to cause her to collide with the walls of a warehouse, or building, or bridge structure adjacent to the water's edge. It seems to me the purpose of the act was to limit the liability of the owner as to any damage his vessel should do without his privity or knowledge whether the person or thing damaged was upon the water or the land, as the risk of damaging things upon the land, tlspecially with a steam-vessel, is as great as that of damaging things upon the water. The commissioner's report is therefore approved, and a decree will be entered limiting the liability of the petitioner to the value of the tug.
172
FEDERAL
In re Petition of VESSEL OWNERS' TOWING Co., to Limit its Liability,
etc. l {District Oourt, N. D. lZlinois.
:May 27, 1884.1 4283,
SHIPS AND SHIPPING-LIMITED LIABILITY OF VESSEL OWNERS-SECTION REV. ST., CONS1'RIJED.
Congress having. in express terms, limited the liability of vessel owners, the protection of the statute may be invoked. notwithstanding the fact that the thing injured is situated on land, if the damage in question be occasioned by the vessel, and without any fault or privity on the part of her owner or owners. The Plymouth. 3 Wall. 20, distinguished.
In Admiralty.
On demurrer.
Schuyler IX K1'emer, for petitioner, the Vessel Owners' Towing Com-
pany. P. M. Williams and M. St. O. Thomas, for Chalifoux. J. J. Flanne1',1J, for Murphy. Shufeldt d; Westover, for Hanson. Clarenee Knight, City Atty., for the City of Chicago. W. H. Condon, for Clifford and Mary and James Foley. BLODGETT, J. This is a petition by the Vessel Owners' Towing Company, as owners of the tug Thomas Hood, for a limitation of liability under the provisions of section 4283 of the Revised Statutes, by reason of certain injuries committed by tbe tug, as is alleged, without the fault or privity of petitioner. . It appears from the petition that the tug is employed upon the waters of the Chicago river and Chicago harbor and vicinity as a towing tug, ailld that- in that capacity, on the twenty-eighth of September last, this tug took in tow the schooner David Vance to tow her from some point near Wells-street bridge to an elevator near Sixteenth street, on the south branch of the Chicago river, and while so in tow of the tug the schooner struck the abutment of the Adams-street viaduct at the Adams-street bridge, and broke it down, and caused a portion of the viaduct to fall, thereby damaging, not only the viaduct, but several persons and some property on the viaduct at the time. One of the persons who has been cited to show cause why a decree of limitation of liability should not be entered is J. D. Chalifoux, who has demurred to the petition upon the ground that it does not show a case coming within the provisions of the section in question. The question is an anomalous one. The counsel for respondent, in their brief, seem to rely mainly on the Case of the Plymouth, reported in 3 Wall. 20. This case was where a steamer lying alongside a dock in this city took fire, and the fire communicated to the packing-house of Hough & Co., and destroyed it. A libel in personam, against the owners of the steamer, was filed by Hough & Co., to re1 Reported
173
cover damages by reason of the burning of their warehouse, on the ground that it was a marine tort. The case was first heard before Judge DRUMMOND, then district judge, who held that an injury by a ship or vessel to anything upon land was not a marine tort, and therefore admiralty had no jurisdiction in the premises. This case was affirmed by Mr. Justice DAVIS, sitting as circuit judge, and subsequently by the supreme court. It differs from the case now befOl'e me, in this: the only question there was whether that was a marine tort, and therefore within admiralty jurisdiction; but this case is essentially different in principle. It is upon a special statute limiting the liability of ship-owners for damages done by their vessel. The section under which it is brought reads as follows: Sec. 4283. "The liability of the owner of any vessel for any embezzlement, loss, or destruction by any person of any property, goods, or merchandise, shipped or put on board of such vessel, 0,1' for any loss, damage, or injury by collision, or for any act, matter, or thing lost, damage or forfeiture occasioned or incurred without the privity or knowled;.;e of such owner or owners, shall in no case exceed the amount or value of the interest pi such owner in such vessel and her freight then pending."
It appears from the petition that this schooner, while in tow of the :ug, was, without the fault or privity of petitioner, so negligently or carelessly handled by the tug, that she struck the viaduct of the Adams-street bridge, damaging the viaduct to some extent, and persons and property thereon, and that the aggregate of the damage to the viaduct, property, and persons exceeds the value of the tug. It is claimed, as the property injured was upon the land, and the offending thing upon the water, that the injury is not one contemplated by the act; but the language of the statute is very broad, and the supreme court has several times interpreted the purpose of can· gress in passing this act, which was to encourage the building of ships, and to encourage commerce by giving to those who should build ships the assurance that the)' can only be made liable to the extent of the venture made in their ships; that if a man builds a ship for the purposes of commerce, equips and mans it in a proper manner, a:nd sends it about the business of commerce, he shall only be liable to the extent of his investment in that property, unless the injury shall be occasioned by his privity or neglect. In entering the harbors of the lakes, and also upon the seaboard, vessels prQpelled by steam come in close proximity to the land; and suppose a steam-ship, properly built and equipped, explodes her boiler by the carelessness of the engineer, the boiler having been properly constructed so far as the owner is concerned, in the vicinity of a large warehouse, thereby causing its destruction, through the negligence of the parties in charge of the ship, is the owner oj the ship to be held responsible, in the light oftbis act, for tpe destruction thereby occasioned?, The injury would seem to be such as would come within the language of the statute, and although the question is a new one, and. has DOt
'174
been yet directly adjudicated upon, I a.m of opinion that the case made by the petition comes within the provisions of the statute, and entitles the petitioner to relief. The demurrer is therefore overruled.
THE YOUNG AMERIOA.1 GALLAGHER
THE YOUNG AMEBIOA,
etc.
(DiBW'ict Oourt, 8. D. New York. January 21, 1886.) 1. TOWAGE-IcE IN CHANNEL-TUG FORCED TO SHORE-STRANDING OF CANALBOAT-BURDEN OF PROOli'-NEGLIGENCE.
The tug Y. A. came from Perth Amboy to New York, around the southern shore of Staten island, towing a fleet of canal-boats, among which was libelant's boat, B. On coming through the lower b83 she met a large field of ice, which forced her to the extreme westerly side df the channel, where the B. struck on a rock. Held, that the tug was liable only for want of care, under the circumstances that she met; that the burden of proof was on the libelant; and that. on the evidence, the was not caused by the tug's negligence. DISPUTED AUTHORITY-INCREASED' DAMAGE AGES DIVIDED. INDEPENDENT CAUSES DAM-
2. SAME-ABANDONMENT OF WRECK-SUBSEQUENT POSSESSION BY WRECKERS-
After the accident, the tug came on to New York with the remainder of the fleet, leaving no one in charge of the B. Aid being subsequently sent, the canal-boat was found in the possession of wreckers, and, owing to the disputed authority, and the difficulties and delays arising from it, she became almost a total loss. The evidence indicated that but from this interference the loss would have been greatly lessened. Held, that it was the tug's duty, having the custody of the canal-boat, to have made all necessary arrangements before leaving her to prevent her falling into the hands of thIrd persons under color of authority. Not having done so, and it being imp'0ssible to determine with exactness how much of the whole loss was attrIbutable to the original stranding, and how much to the subsequent want of protection, MW" the damages should be divided.
In Admiralty. Hyland ct Zabriskie, for libelant. Wilcox, Adams ct Macklin, for claimants. BROWN, J. The libelant was the owner of the canal-boat Beakly. which was one of 24 boats forming a flotilla, composed of six tiers, of four boats in a tier, in tow oFthe steam-tug Young America, upon a hawser. The libelant's boat was the outer boat on the port side of the fourth tier. On the twelfth of February. 1885, the Young America started from Perth Amboy to tow the fleet to New York. Finding Kills choked with ice, and impassable, she came through the lower bay, along the southern shore of Staten island. After passing the Can and Spar buoys, about half a mile below the ,Narrows, she' 'met, as her witnesses allege, a large field of ice coming up 1 Reported
by Edward G. Benedict, Esq., of the New York bar.