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the suction and surge made by the ferry-boat Southfield, in passing the canal-boat on the morning of the eighth of May, 1882. The canal-boat was moored at the bulk-head, between Stapleton and the Wrecker's pier, on Staten island, and was there discharging a cargo of malt. She lay with her bow to the northward, with her stern some 25 feet from the line of the north side of the Wrecker's pier, and was made fast to the bulk-head by a four-inch bow-line, a four-inch sternline, and a three-inch breast-line, all sound and strong. The Southfield was engaged in making regular trips upon the Staten island ferry, and on the trip in question went, according to the answer, from New York direct to Clifton, but according to her proof, from New York to Tompkinsville and then to Clifton, without stopping at Stapleton. As she passed the place where the libelant's boat was moored she created a suction and surge of the water which broke the stern-line and the breast-line of the canal-boat, carried the boat herself out some 25 feet from the bulk-head, and then cast her back with such violence as to throw down persons upon her deck, and do considerable injury to the boat. The place where the canal-boat was moored is a place in common use for discharging of boats, where boats like the libel. ant's can lie without injury, provided the ferry-boats use moderate speed when passing at low tide. Upon the evidence it is impossible to attribute the injury of the canal-boat to any neglect on her part, either in selecting an improper place to discharge or in omitting reasonable caution in respect to her mooring. It is also beyond dispute that the immediate cause of the injury was the suction and surge created by the Southfield as she passed down to Clifton on the 6 o'clock morning trip from New York, the tide being then low. The inquiry, therefore, is whether this suction and surge is attributable to any neglect of duty on the part of the Southfield. The law applicable in cases of this description is not in doubt. It is thus stated in the case of The Morrisania, 13 Blatchf. 512:
“The undoubted right of the steam-boat to the navigation of the river is subject to the restriction that it must be exercised in a reasonable and careful manner, and do no injury to others that care and prudence may avoid.”
By the law, it was the duty of the Southfield, in passing the libelant's boat, to avoid endangering that boat by her suction, provided that could be done by the exercise of reasonable care in respect to speed. The ferry-boat had the right to pass from Tompkinsville to Clifton at low as well as at high water, and she had the right to select such a course, and to move with such speed, between these points, as would enable her to make the landing at Clifton in safety. But in view of the situation of the canal-boat, she owed a duty to the libelant to pass the canal-boat at as low a rate of speed as was consistent with her safe navigation to the Clifton landing. This obligation is acknowledged in the answer, when it is a verred that the ferry-boat passed without causing or creating any unnecessary or unusual disturbance in, or suction of, the water about the said bulk-head, and employing only such speed as was actually necessary to enable her to make her said docks in safety. The answer also indicates, with sufficient accuracy, what speed was actually necessary to the safe navi. gation of the ferry-boat at this time and place, for it avers that the engine of the ferry-boat was slowed abreast of the Stapleton pier, and with the aid of wind and tide the ferry-boat floated past under moderate steerage way and careful handling.
The decision of the case turns, then, upon a question of fact, namely, whether the ferry-boat passed the libelant's boat as described in the answer, or at unnecessary speed, as charged in the libel. Upon this question the weight of the evidence is with the libelant. The libelant, who was on the deck of his boat, and watching the ferry-boat, testifies that the ferry-boat did not check her speed until after she passed the Wrecker's pier. He also testifies that his attention was called to the ferry-boat by his deck-hand. That he said to the deck-hand, "Is she going to check down?” and the deck-hand replied, “I guess not, by the looks.” This conversation had at the time, with the ferry-boat in view and under attention, strongly confirms the master's statement that the ferry-boat did not check her speed until after she had passed his boat.
In opposition to this statement of the libelant, the claimants produce the testimony of the pilot and wheelsman of the ferry-boat. The testimony of the pilot, which, it will be observed, is not strictly in accordance with the statement of the answer, is this: “When we left Quarantine dock we hooked the boat up, and when I got within 200 feet of the Club House dock, I shut her off with one bell, and from there to Clifton I ran shut off.” Elsewhere he says that he rang the one bell because he could not manage the boat at full speed. But he makes no claim to have navigated the ferry-boat with any reference to the effect of her navigation upon the boats lying at the bulkhead, nor did he know of the damage done until his return from New York on the next trip, and his testimony, taken together, is calculated to raise a doubt as to his having any distinct recollection of the place where he slowed his boat on this particular trip. Certainly, it is not sufficient to outweigh the testimony of the libelant, whose attention was called to the speed of the ferry-boot by the danger of his boat, and whose statement is confirmed by the conversation had at the time. No support to the pilot's testimony is derived from the testimony of the wheelsman, who manifestly has little, if any, recollection respecting this particular trip. Moreover, the libelant's testi- . mony in regard to the speed of the ferry-boat is in harmony with the result, while that of the ferry-boat pilot is not. That the passing of the ferry-boat was followed by an unusual suction is proved, and not denied. It is also shown by the movements of the canal-boat. This unusual suction is accounted for by unnecessary speed on the part of the ferry-boat, and the evidence discloses nothing else to which it can be uttributed. Probability seems, also, on the side of the libelant's state
ment that the ferry-boat passed him without checking. The ferry-boat omitted the Stapleton landing, and this indicates that the boat was short of time, as, according to the superintendent, she some times was on the morning trip from New York. Being short of time, it is by no means improbable that she ran longer than usual before checking her speed. My conclusion, therefore, is that the damage sued for was caused by a neglect of duty on the part of the ferry-boat in this, that she passed the libelant's boat at an unnecessary rate of speed.
A decree must be entered in favor of the libelant, with an order of reference to ascertain the amount.
THE Chas. E. SOPER."
(District Court, F. D. New York, November 16, 1883.)
1. COLLISION-STEAM-BOAT AND TUG-CROSSING COURSES-FAULT IN NOT HOLD
ING COURSE-FAULTY LOOKOUT.
A collision occurred between the tug S. and the steam-boat O., in the East river, in the day-time, in clear weather, under the following circumstances : The tide was flood. The 0. had left Fulton market pier, where she had lain head down the river, and rounded out, bound up the river. The S. was coming down near midstream. Abreast, or nearly so, and between the S. and the New York shore, was a tug towing a schooner on a hawser down stream. Ahead of the S., coming up, was a tug with two barges along-side, and between this tow and the New York shore was another tug and schooner. The 8. could not pass to port of the barges, owing to the closing up of the other vessels, and starboarded, and had just cleared the barges when she struck the 0. on the port side. Held, that the S. was not in fault for sheering across the bows of the barges, nor for not stopping and backing when she found she could not pass the barges to port; nor was the collision caused by the S. being within 20 yards of the vessels going down, in violation of a state statute; that the omission of the S. to answer the O.'s whistle caused no change in the movements of either, and in no way conduced to the collision; that after the S. starboarded to pass the barges, the 8. and the O. were on courses crossing, and the 0. was in fault for straightening up the river and not holding her course, and for not seeing the S. as soon as she might have done; that the S. was also in fault for not keeping a good lookout, and seeing the 0. before the S. sheered, it being highly probable that if the 0. had been then seen the S. would bave sheered more sharply, and removed from the 0. the temptation to cross the S.'s bows. Both vessels being responsible for the collision, the damages must be
apportioned. 2. SAME-CLAIM FOR SALVAGE BY VESSEL IN Fault.
A claim for salvage, made by the S. for towing the 0. to a place of safety, after she was disabled by the collision, was rejected because the collision that made the service necessary was in part caused by the fault of the 8. herself.
1 Reported by R. D. & Wyllys Benedict, of the New York bar,
BENEDICT, J. These are cross actions arising out of a collision between the tug Charles E. Soper and the steam-boat Osseo, that occurred nearly under the Brooklyn bridge, in the East river, on the twenty-ninth day of May, 1882. The tide was flood. The Osseo had left her berth at the Fulton market pier, where she had lain head down the river, and was bound on her regular trip up the river. It was day-time, and the weather was clear. As the Osseo rounded out from her berth, the tug Soper was coming down the river, near the middle of the stream. Abreast, or nearly abreast, of the Soper, and between her and the New York shore, was a tug towing a threemasted schooner on a hawser, and also bound down the river. Ahead of the Soper, and coming up the river, was a tug with two lumberbarges along-side, and between this tug and the New York shore was another tug with a schooner in tow. As the Soper approached the lumber-barges, her intention was to pass to port of that tow, but this was rendered impossible by the closing up of the other vessels, whereupon she hove her wheel a-starboard and passed outside of the lumber-barges. When she had just cleared them she came in collision with the Osseo, striking her heavily in the port paddle-box. At the time of the blow the Soper was backing her engine and the Osseo was moving rapidly ahead. The libel of the Osseo charges that the collision was occasioned by the fault of the Soper, in that she did not keep out of the way of the Osseo, and in that she had no lookout, and did not see the Osseo in time to avoid her, and did not answer her whistle. The theory of the Osseo, put forth in her libel, is that she was about abreast of the lumber-barges and going in the same direction as they were, but faster, when the Soper changed her course to cross the bows of the lumber-barges, and, although the Osseo blew one whistle and ported, the Soper, without answering the whistle, kept on and ran into the Osseo. The answer of the Soper states that, as the Soper crossed the bows of the lumber-boats, the Osseo swung round the stern of the schooner that was towing up the river, and, when pointed to the starboard quarter of the starboard lumber-boat, attempted to cross the bows of the Soper on that course by putting on full speed, although she had half the river clear upon the Brooklyn side, and there was nothing to prevent her avoiding the Soper by stopping, or by going further towards the Brooklyn shore, instead of attempting to pass close to the lumber-boats, as she did.
Upon the argument it was earnestly contended in behalf of the Os. seo that the Soper was in fault for sheering across the bows of the lumber-boats when she did. No such fault is charged in her libel, nor was the sheer a fault. That course was forced upon the Soper by the other vessels close to her, and was a proper course to pursue under the circumstances. It was also contended that the Soper was in fault for not stopping and backing when she found that she could not pass the lumber-boats to port. This fault is not charged in the libel, nor proved by the evidence. It was also contended that the Soper was running in violation of the state law, because she was less than 20 yards from the tug and three-masted schooner towing down. The libel charges no such fault; nor was the collision caused by the Soper being within 20 yards of the vessels going in the same direction.
In regard to the faults that are charged in the libel it is my opinion that the omission of the Soper to answer the whistle of the Osseo caused no change in the movements of either boat, and in no way conduced to the collision. It is also my opinion that the Soper cannot be held in fault for not avoiding the Osseo. There was no dan. ger of collision between the Soper and Osseo before the Soper sheered to cross the bows of the lumber-boats. The clear weight of evidence contradicts the statement of the Osseo's libel, that, when the Soper sheered, the Osseo was heading up the river abreast of the lumber barges, and shows that at that time the Osseo was astern of the lumber boats, heading towards Brooklyn. After the Soper altered her course, the Osseo straightened up in the river, and attempted to cross ahead of the Soper. If it be true that when the Soper altered her course she assumed the obligation to avoid the Osseo, because the vessels were then on courses crossing, and she had the Osseo on her starboard hand, by the same rule the Osseo became charged with the obligation to hold her course. This she did not do. On the contrary, she straightened up the river, and, as the libel admits, came parallel with the lumber barges. This fault of the Osseo plainly conduced to the collision, and is sufficient to render her responsible for the accident that ensued.
But the Soper is also in fault for not keeping a good lookout, as charged in the libel. The testimony shows that the Osseo was not seen by the Soper until after the Soper sheered and her bows had crossed the bows of the lumber-boats. There was nothing to prevent the Soper from seeing the Osseo; and before making the change of course that she did, it was her duty to observe the position of all vessels near her. And it is highly probable that if the Osseo had been seen by the Soper when the necessity for the sheer arose, the Soper would have been sheered more sharply than she was, and thereby all temptation to attempt to cross her bows removed from the Osseo. For this fault the Soper must be held to be also responsible for the accident that ensued. A similar fault is proved against the Osseo, for she did not see the Soper as soon as she might have done. Had the position of the Soper, when she altered her course, been observed by the Osseo, it is probable that the navigation of the Osseo would have been different from what it was. My conclusion, therefore, is that both vessels are responsible for the collision in question, and that the damages resulting must be apportioned between them.
In addition to the claim of damages made by the Soper, her crosslibel contains a claim for salvage services in towing the the Osseo to a place of safety after she was disabled by the collision in question,