170
:n:DERAL
vol. 43. BALL. t
TH;E A. M. r
24,
i8llO.).
WlTaouTNoTWE. , :J;t otthe owed bya tug. to ber tow to cast ot! the to,,:-line withoilt'gl'Vin!t'reasonable notme of her·intention so to do,' and reasonable time for the .tow· t4> tali:e measures tolns,ure hI»: owli sa,fety. " 2.,·SAME""7NEGLIlllllNCE.., , ",; ',' < " . Wh.erethe'tnasterof a tu!t llllgaged to towaschooiler, and did tow her for a short. ,. period> and tllen. finding tnatthererhad been a mistake in the bargain with the </llthe WW-l,ine, lVhllreUlIQ,IJ in,apite of all her elforts, '. , was carried by the 'wind aiid. tide again/lt the docks, it was held that the tug was I lia'ble'for damage., .' ,' " . . I\,
L TUG A:.'(:P·.
i
;l
In Aq.miralty.. Action for' damage "to a tbwin.' being cast adrift by her tag.. ' ,;:; Robert D·.,Benedict, for libelants. ·;,Af4r;a'ltder k·,ABh, for claimants· . Thieis an 'action .tOl'ecover damages of the tug A. M. Ball for setting theschoonelldEllen iEliza adrift in the Ettstriver. ' The schooner was.sailingup .' the East river" to .College Point,Jheavily loaded w,ithbriek.';' ;When somewhere' below the bridge, she was hailed' by the tug A. M.,Ball to know if she wanted a. tow. The captain of tlie told the master of the tug that the soh6oner was bound,to Point, and offered to give him four dollars to'tow her to that plaoe. The mastel of' the', tug .acoepted the offer, and. taking the schooner's line, to tow the schooner. It appear.s that the master of the tug" through carelessness, had supposed that the master of the schooner. had said she was bound to Hunter's Point; Jam}:,' on his deck-handcall'ing his attention to his mistake, he at once inquired of the master of the schooner whetherh'e wasMund to Hunter's Point or College Point" and on being informed !thatshe was bound to College Point, told the master of the <8ChOOtl-el that·he could not. tow "hijD to College ,Point for four Shortly afterwards· the schoonet'snine ,was cast off.from the tug, and the tug went 0ft'in pursuit of other business. At the time when the schooner's line was castoff by the tug,she was above the bridge, and about off J ack,son street. Her sails were down,:and a strong breeze was'blowing off the eNeWi York shore. The schooner ..tonce.endeavored to get u 1> ·her. sails; but, while getting up the sails, she was carried' by the wind and tide across the river; and thus, before she could gather way, she brought up on the Brooklyn side, whereby she was considerably damaged. The evidence satisfies me that the master of the tug did not take hold of the schooner with the intention to tow her to College Point, but under the mistaken idea that the schooner was bound to Hunter's Point. This mistake was the fault of the master of the tug; for no mistake was made 'Reported by Edward G. Benedict, ESQ., of the New York bar.
THE A·. M. BALL.
171
by the captain of the schooner, and the tug's deck-hand understood College Point to be given as the schooner'sdestinatioll. But, although it is evident that the master of the tug never agreed to tow the schooner to College Point, the fact' remains that he took the schooner in charge, and towed her a considerable distance to a place where, in the then wind, she could not safely be cast off with her sails down. There is testimony from the tug that, when the tug cast the schooner's line off, her sa,ils were up; blfUhe clear weight of tbe evidence is that they were down, and the attempt of the tug to show tbe contrary only renders it more plain that it was a violation of a duty owing by the tug to the schooner, under the circumstances, to give notice of her intention to cast off the line, and to give reasonable time for getting up sail, before casting the schooner adrift. This she did not do, and this failure of duty renders her liable for the consequepces of .her act. It has been contended in behalf.of the tug that the immediate cause of the damage to the schooner was the fault of the schooner in omitting to cast anchor. But I do not think the tug can be absolved in that way. IHo cast anchor would have peen ,a proper maneuver' on the. part 'of the sl:lhoo:Qer when she was set adrift, it was also a proper course to endeaver to get up sail. As it appears to me, it was entirely reasonable for the schoqnerto attempt to get out of the predicament in WhICh she hl,\dbeen placed by ,the ,tug by means of her sails, instead of coming to anchor in the river; but; .at the most, it was an error of judgment which cannot, be charged to the schooner as a fault condncing to the subsequent· accident. The l'1ol6, fault was that of the tug in neglecting. duty owing to the schooner at the time when the master of the tug, discovered had blundered in supposing that the achooner was bound to p;oint. The must have a decree, with an Older of re(erE!n(',6.: "
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nDERAL REPORTER,
vol. 43.
THE KING KALAKAU. 1
NEW YORK LIGHTERAGE & TRANSP. CO. (District
v.
THE PENNSYLVANIA.
R.
CO.
Court. E. D. New York. July 24, 1890.)
'ruG AND Tow-FAULTY LOADING-NEGLIGBNCE OJ!' TUG-REMOTE CAUSE.
.
A tug took in tow libelant'8 barge; whioh was loaded with a deck-load of rails, and with bnrlaps below. The tug left tbe barge at a stake-boat, where, during the night, she rolled 80 heavily as to lose her deck-load overboard, and received damage herself. For the 10S8 she sued the tug. Held, that the immediate cause of the loss was the top-heavy condition of. th4il barge, and the act ofthetQg in leaving tbe barge at the stake.boat was but a remote cause of the damage, and did not render the 'tug liable.
In Admiralty. Action for alleged breach of towing contract. Carpenter jX for the libelants. Robt'nsan-, Bright, Biddle jX Ward, for the claimfl,nts. 'BENEDICT, J. On 01' about April 1, 1887, the Pennsylvania Railroad Company contracted with the libelant to tow the barge King Kalakau, loaded with old rails and burlaps, from Brooklyn to a dock at South Am boy, N. J. That barge, in tow of the tug Amboy, started from Brooklyn; and about 3 ,o'clock P. M. of the same day reached South Amboy. : On arriving at South Amboy the barge was placed at the stake-hoatthere. The 'wind was high at the time,and a snow-storm pre.vailing. About 12 o'Clock that night the respondent's tug went to the barge, still .lying' at' the stake-boat, for the purpose of taking the' barge into the dock, but all on board the asleep;. and, getting, no' response to various hails, the tug departed without the barge. At about 1 o'clock the barge rolled heavily enough to dump her deckload of rails overboard, the boat herself receiving some damage thereby. These losses the libelant seeks to recover of the Pennsylvania Railroad Company. The argument in behalf of the libelant is that it was a breach of the towing contract to leave the barge at the stake-boat, and that this of the contract was the immediate cause of the subs&quent loss of the iron. Reference is made to the following cases: TM W. E. Cheney, 6 Ben. 178; Ookeley v. The Snap, 24 Fed. Rep. 504; Phillips v. The Sarah, 38 Fed. Rep. 252; The Bordentown, 40 Fed. Rep. 682. the question whether it was a breach of the contract to leave the barge at the stake-boat, and passing, also, the question whether the barge wall not at her own risk while lying at the stake-boat subsequent to the time when the respondent's tug went to her, to tow her to the dock, and failed because unable to rouse from sleep those in charge of the barge, I am of the opinion that the immediate cause of the loss was the top-heavy condition of the barge, loaded as she was, with rails on deck, and burlaps below. It is evident that the accident was wholly 1 Reported
by Edward G. Benedict, Esq., of the New York bar.