95 F. 699 -

'J;'HETAURUB.

699

THE TAURUS. (District Court, S. D. New York.
.... OF TUG

June 9, 1899.)

As a tug. was entering Boston Harbor with a tow, in a fog, which had lightened sufficiently, however, to 'enable the master to keep the channel, she suddenly came up\ln a rock-b1'ea1;.er anchored in the channel, which , had 'given no signal, though the tug had approached slowly, C(jntinually sounding her whistle. 'l'he rocIt-hreaker had been recently removed from the ea..t side o'f the channel, where it had been at work for, some time, to. near the west side, whieh fact was unknown to the master of the tug, who, as he could not see tAe shore, supposed it, to be in the old position,' and therefore changed his course, and attempted to pass to the, west of it. in doing which he grounded, and one of his tows received injury. Held, that such facts did not establish negligence in the master, Or want of ordinary nautical skill and prudence, but, at most, an error of judgment in an which did not render the tug liable for the injury.

INJVRY TO Tow-AcTION IN

In Admii'/llty. Libel against' the stearntug llaurus to ,recover for injury ,to. a tow. Dismissed.
On 'tIie 9th day of :\Iay, 1897, the barge Templar, laden with coal and drawing about 16 feet, was being towed Into Boston Harbor, from New York, by the tug Taurus;· in connection with two other vessels, the Escort and the' Ireland. Before -reaching the entrance to the harbor, the hawsers had been shortened, under directions from the tug, so that each was on a length of about 30 fathoms. : 'fhe Escort was next to th,e tug, the Tempiar followed, and the Ireland Was the last of the tow. Some .fog had prevailed during the morning, and when jthe entrance to the harbor was nearly reached, the tug gave the tow preparatory signals with a to anchoring in case the master concluded it would be necessary; bnt when the vicinity of Boston light was reaehed, the fog lightened, so that the master could see land occasionally, and he then conduded to go on. The tug went very slowly, continual soundings were made on her, fog signals were dnly sounded and a lookout was properly stationed. After paesing Boston light, the fog became more dense, but the master was able to make the buoys and keep in the channel. 'When the tug had reaclled a point opposite the narrows, or Bug light, she was in the usual channel. She then headed to the northwest to pass between LoYell's and George's Islands. The tide was about an hour and a half ebb, and set two or three points crosswi"e of the channel, to overcome which, it was necessary to head the tug a little to the westward of the channt'! course. Soon after this course had lJeen taken,a rock-breaker was suddenly discovered anchored in the channel, about :tOO feet ahead and slightly on the tng's port bow. This rock-breaker had been towed into the harbor by the master of the Taurus about two months before, allli during that time it had, to his knowledge, been continually working on a ledge in the eastern part of the channel, Iie'ar the southern end of Lovell's Island. vVhen the tug came near, there was some shouting on the rock-brealwr, but no belFhad been or was rung on her though the tug was sounding her fog whistle regularly. It appeared that since the master of the tug had last seen ihe rock-breaker, a few days before. her 'position liad been changed from the ('ast side of the chantiel to ,the westward of the center of the channel. Supposing her to be in the place where he had last seen her, and that he had been carried to tbe easterly side of the channel by the effect of the cross tide, the master starboarded· the helm of the tug and passed to the westward of the rockbreaker and a tug lying at right angles to her. No land was visible at the time, and the sounllings, which were continued, showed the regular channel depths of 5 or 6 fathoms until the tug had passed the rock-breaker, when suddenly 3% fathoms were reported. '1'he master then knew he was out of the ehannel, and ported his helm, but the tug at once took bottom on the westerly "idt, of the channel and the Escort struck about the same time. The Templar, following the collided with her and suffered some damage, for which this action was brought.

700
Carpenter & Park, for libelant. . Wilcox, Adams & Green, for claimant.

BROWN, !)istrict Judge (afte,rstating the facts). tug In towing not being guarantor, is liable only for negligence, Leo the lack of ordinary nautical skill and prudence., Does the evidence fairly warrant such ajlnding as regards of the Taurus? I think not The fog lightened as the. master w.asabout to ,anchor, and his judgment was that he could make his way through. The event actually proves his knowledge and skill, since in the dense fog he ran in the very center of the channel exactly where he ought to have been until the rock-breaker, recep.tly moved, and giving no signal, deceived him, and caused him to Sheer to the westward. Had sig· nals been given properly from the rock-breaker he would have been warned. Knowing her previous place near the east shore, and hearing no signals, he naturally assumed he,must have got too far to the eastward in the cross tide, and therefore starboarded. I think this' ought to be treated as a sudden ,and une:ipected emergency, naturally tending to mislead just as the pilot of the Taurus was misled. The case seems to me quite unlike The Bercw-es, 81 Fed. 218, in that regard. This case shows, in fact, a careful, skillful pilot working his way with precision until misled by the rock-breaker; which deceived him not by change of place, but by not giving prior signals, Buch as she was bound to give on her actuaJ change. This was notnegligence in the pilot, but at most an error of judgment in a sudden emergency. Libel dismissed without costs.
THE CATSKILL. THE ST. JOHN.

(DIstrict Court, S. D. New York. July 8, 1899.)

'L

COLUSION-MuTUAL FAULT--LIlIUTED LIABILITY ACT-DISTRIBUTION 011' PROCEEDS.

Where both vessels are held In fault for a collision which resulted In the loss one vessel, and In the death and Injury of passengers, and the loss of baggage and cargo, for which claims are filed, and the proceeds of the other vessel, surrendered under the limited liability act, are Insutl'lclent to pay all losses, the owners of the vessel destroyed are equitably estopped from claiming any part of the fund on, account of the loss of the vessel until the claims of third' parties, for which she Is jointly liable, have been paid In full; l1;Ild her Insurers, who have paid theloSlj are subrogated only to the rIghts of the owners·

.. SAME-CLAIMS FOR DEATH AND PERSONAL INJURIES.

Claims for Injury to the person and loss of life resulting from a collisIon are within the provisions or Rev. St. §§ .4284, 4285, which require the proceeds or the ol!endlng vessel, when surrendered, to be distributed among the claimants In proportion to theIr respective losses, and bar the clalmants or other remedy; and the el!ect of those provIsIons Is to make every admissible claim a statutory lien on the fund, and entitled to share therein pro rata, except as al!ected by equitable rights between the parties.

In Admiralty. Proceejling to limit liability on account of damages by collision. On distribution of proceeds of surrendered vessel.