FEDERAL REPORTER,
vol. 50.
!,' . .
:i
side of the hatch had to be beaten down, because they fitted so tightly. besideslthelibelant have testified thatthe middle covSeveral ers were carefully put down in their proper places before the libelant stepped upon thilm. ' SQIile unfilled' spaCe was Doticed 'along the port edges, but no opening beneath. , .' .', " wahit:ht therejectipn olthe explicit testimony of these , I see witnesses,that the covers were in place. A considerable time elapsed ,!¥:cident the time when' the careful measurements were taken bytbe' witness Weeks, above" referred to. The accident happened in Mexico, in a hot climate, at the end of the summer season, when the covers and the ,beams would have been subjected seemingly to the utmost possible influence of long-continued dry weather, such as would shrink the covers to the utmost; while any shrinkage of the beams, if there was any, would also enlarge the hatch openings. The ,testified to were made' here in midwinter, and under oppositeponoitions. r must accept the facts, therefore, 'as sworn to in this particl,1,lar by the libelant's witnesses. was without fault. iHe was new to the ship; he was The not, apquainted with the imperfect fitting of the hatch coverSi and he was putting ,them on fo/.' the first time, under the direction of the boatswain, who hurried hilUin his work. The libelant is, therefore, entitled to, 'recover his actual damages. , Hewaa' cOllfinedto his bunk forfour days. After that he came upon the deck male or less, but was unable to work. On arrival in New York he w",ot to the Marine Hospital, where he remained 39 days, and was thendischluged. His own physician testifies that he finds evidence of a thickening of the pleura, which the respondent's expert testifies, could only proceed from acute pleurisy. If he suffered any such acute attack, it must have been very short. All are of the opinion that, after a few months more, the libelant will be practically welli though a difference remains as to the thickening of the pleura, and its necessary consequences. Looking at all the circumstances. I think $750 will be a reasonable allowance for his injuries; for which a decree may be entered, with costa.
THE OSCEOLA. THE NAl'iNIE LAMBERTON.
EM:ny
t1. THE OSCEOLA ANn THE NANNIE LA.MBERTON·
. (District Court, S. D. New York.
Aprill4.1892.)
CoLLISION-NAtiROW CHANNEL-TIDE-RIGHT Oll' WAy-WON DUTY TO STOP.
Where two 'tows are approachinll;each· other in a narrow channel in such wise that b;r contilluing on they willmeet at a point where it is l1ifticult and dangerous for thent to pass, it is the duty of the tow going against the tide to stop before reaching&uch difficult point,. and waitfor.tha ether tow to go by her.
THE OSCEOLA.
327
In Admiralty. Collision between tows. HylandJc Zabriskie, for libelant. Carpemf..er « Mosher, for the Nanuie Lamberton. Benedict « Benedict. for the Osceola. BROWN, District Judge. At about 9 o'clock in the evening of'September 12, 1891, a collision occurred between the tow of the tug Nanme Lamberton, going up the Hudson river with the flood-tide. and the tow'oithe tug Osceola, coming down river, canalbdatJ;the Nell Stone, susmineddamages, to recover which the above libel was filed. The collision occurred in the narrow' channel-way about 400 feet wide, between the "Stone Light," sO-:called, on the west side of the Hudson · river lL fifth of a mile. above Van Wie's point,five miles soutJ:;t of Albany, and· the opposite ledge of rocks buoyed in mid-river, which there forms theensterly line of the channel. The Lamberton's tow consisted of abl)ut 30 boats, 3 or 4 abreast, towed by 2 hawsers, each about 90 fathorns in length. 'The libelant's boat was the extreme port boat in the third tier. The tow of the Osceola consif:lted of 3 barges in the front tier, in all about 92 feet wide, with 37 canal,boats in 9 tiers behind, towed upon hawsers about 100 fathoms in length., The port barge of the forward tier was loaded with lumber, and struck the libelant's boat about amid-ships on her port side; The lights of the two tows were seen by each other when about a mile and a half apart, the Lamberton then being about off Staats, about a mile below the light, and the Osceola about 3,000 feet above the light, where there was at that time a government drill occupying a part of the channel-way. There is a straight reach of about half a mile from the Stone light up towards the drill, with a channel-way 300 or 400 feet wide, of sufficient depth fol'such tows as these. In going up the channel-way boats turn a little to port in passing Staats, then a little to starboard i11 going between the light and the buoyed
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It is not often that tows meet in that vicinity. Between Van Wie's and the drin the channel is unfavorable for tows to meet and pass. The strong weight of evidence, moreover, is that the meeting and passing of tows abreast of the light, or abreast of the drill, mUiltby some means be avoided as dangerous; thol.1gh some rare instances are mentioned in which tows have passed there without damage. The nearly unanimous testimony of the witnesses is also that in order to avoid meeting or passing at of those places, the tow going against the tide should stop and wait above the drill or the light in order to allow the tow going with the tide to pass. This· is in accordance with the usual and well-established rule as to the right of way in such cases. The Osceola had already reached the drill when she saw the Lamberton a mile and a half below, off Staats. It was not proper for the Oscoola to stop and wait at the drill by dropping back; and she, therefore, properly pulled ahead till her tow passed the drill. The Lamberton, recogniziqg the Osceola's situation, stopped her engine when a little above
F1!:DERAL REPORTER,
Staats and drifted in the flood-tide, in order to give the Osceola's tow time enough to pass the drill, but expecting that she would stop in the straight stretch between the drill and .the light. When the Osceola's tow had passed the drill, the pilot of. the Lamberton gave a signal of one whistle, and the Osceola answered with one; the Lamberton thereupon started ahead, and the tows met abreast of the light, as above stated. It was the dutYQf the Osceola to stop before reaching the light. Her aUlilwerwas evideqtly' drawn in recognition of that duty, for it avers that tqe "O-sc;Jeola cpnti;nuedon her course slowly till she had passed" the .drill "and then·stopped to let the Lamjberton pass," but that she continued on after seeing that the Lamberton had stopped. The evidence, hqwever, shows that the Osceola did not stop before she reached the light, but kept on till she reached a point near the shore 600 or 700 feet · below ,the light, although before she, reached the light the Lamberton's whistle was heard and answered. The captain says he could have stopped before he reached the light had he chosen todo so. When the Osceola came to a stand-still, about 600 or 700 feet below the light, the forward tier Qfher tow was between the light and the buoy. There were two ather, abreast of the Osceola assisting her, and all their officerA testify that the tug on the westerly side when she came to a stand-still was actually aground, a,nd that the three tugs were close along-side of each oUler; that the barges ,were apparently,directly astern, and the tow in line. The Lamberton in coming up passed the three tugs at about the they came to a stand-still and ata good distance from them, heading somewhat over, towll-rds the. easterly side of the channel-way, and l!lhe passed, as I find upon her testimony, as near to the buoy on the rocks as was proper or safe. ,The Lamberton's tow while she stopped and drifted had become somewhat. irregular. Her witnesses, however, say that before passing the Osceola's tow the Lamberton's tow had got straightened UPj and no witnesses for. the Osceola testify to any irregularity in the line of the Lamberton's tow as she approached them before collision. The tug Ronan wason. the Osceola's port side. Herpil<)t testifies that the forward tiers ofthe Lamberton's tow passed some little distance away from the Ronan, heading a little across the stream to the eastward. This .accords with the tElstimony of the pilot of the Lamberton, that he went as near the )luoyas possiblej and unless that was substantially true, I do not see how that heading of the tow.could have been given to it and maintained. The last fQur or five tiers of the Lamberton's tow, however, rubbed along against the Ronan,while the port side of the libelant's boat in the third tier collided with the Osceola's barge 600 feet above. There seems to be no dispute concerning most of the above facts, ex· cept as to the distance at which the, Lamberton passed the buoy. No explanation of the consistent with them has been offered, except that or the witnesses Noble and Atherton, in behalf of the Osceola, who testify that it is dangerous to pass abreast of the light, because the floodtide sets towards the light, and if the tow going up with the flood gets any swing to the wj:lstward, it is impossible to stop it. This account for
329
the fact that the latter half of the tow rubbed along against the Ronan, while the front went weH clear, heading to the eastward, as well as for the continued set of the forward tiers towards the westerly shore, notwithstanding the fact that the Lamberton was doing all she could to prevent it, and that the boats were heading somewhat across to the eastward. Another circumstance tending to explain the collision appears in the testimony of Atherton. He was the pilot in charge of the tug Hazel Dell, a helper of the Osceola, who says that after passing the drill, he came along the east side of the Osceola's tow for the purpose of keeping it close to the dike; and that while doing so, he was hailed by the tow on the other Elide not to push any further or they would be on the dike. But he also testifies that he heard the crash of the collision, that he immediately went to it, and that he worked his way through on the east side by shoving over the forward boat8 of the Osceola's tow towards the westerly shore. He also says that some boats of the Lamberton's tow drifted over the buoy. These circumstances show that whatever may have been the position of the middle or tail-end of the Osceola's tow, the forward tier which struck the libelant's boat had not been over on the westerly side of the channel, as is claimed by the respondent, and that the Lamberton's tow must have been near the buoy. The force of the blow would have tended to set the barges somewhat towards the westerly shore before the Hazel DelI'came up; yet when she arrived, she shoved them over further yet. The captain of the Osceola claims that nothing was added to the difficulty of the Lamberton's tow in passing his own tow, by going, as he did, a· few hundred feet below the light before stopping, although that brougbt the forward tier of his tow abreast of the light; because,lls he says, there was quite as much breadth of water abreast of the light as above it. According to other testimony, however, the difficulty there is not alone in the narrowness of the channel-way, but also from the hend in the channel, and in the set of the flood-tide towards the light; so that it is difficult, if not impossible, to go around the buoyed rocks without swinging the tail of the tow to the westward. This must have been well known to the Osceola; and for this reason, according to the great weight of the testimony, the Osceola should have stopped before reaching the light. This accords not only with the implication of the Osceola's answer, but with the expectation and the signal ot the Lamberton. After the Lamberton's tow coming up had passed the light and got into the straight reach above it, there would be no further swinging of the tow; and a straight course and a safer passage would become practicable; though the channel was no broader than abreast of the light. Had the Osceola stopped before she reached the light, her tow could have laid just as easily bttween ber and the drill, and with much less danger of collision. On the weight of testimony upon this point, and the captain's statement that he could have made this stop had he thought best, 1 must find that it was his duty to do so, under the rule that gives the right of way to the vessel going with the tide. He could have done this, as he says, after the exchange of signall:l and after he saw
FEDERAL .ltlj1POll.TEll..
that the Lamberton had .resumediherforward motion. The answer of o,ne whistle t4a' ;>4egave her unlier the circumstances, the SQ.ine dut.y·. in: her coming forward; and),ndoipgso she blld. the:,rigpt. c;)f way. Had· he wished not to acquieSce, he shopld }:lave giyen to indicate it; and in agreeing to the Lanlberton's· cOllling()n, it was his duty to stop in the safer place abQve the light. TIW Lamber.ton, having the rigqt of way,. was not requireli 'to wait)onKer: below drifti,ngupwards, even if she could have safely. done so,. which is at least doubtful; the eYidence op. .that point is hardly sufficieJ;lUo form a certain judgment. As I do ,not find tile LambertQn. in .fault, the libelant is enagainst titled to a decree against the Osceola only. witQ costs; a,nd the Lambw'ton, ,the libelshould be dismissed, with costs.
THE 'ROGElUItl.THE
ATLANTA.
PHcENIX
and THE
ATLANTA.'
(DiBtrict oourt, S. D·. NewYor7c. April 20, 1892.) CoLLlSIO'N-Foe-:-STEAV,VBSSELS
'thlt steam-lighter P., lightabQve but thiok near the water, saw at a llC)DBiderable distanoe the smoke-staok of the. tug A. orossing her course, and somewhat on her starbolU'dhand, and knew by the signals of the A. that she had a tow. she reverse until the A.'s tow appeared through the fog, 50 feet away. Held1 that suoh delay fixed l1pon the P. the blame for the oollision whiOli ensued, ana that the A., being in doubt as to the P.'s course. was justified in reversUl.g under rule 21, even t40ugp gQiDg on might have ,"voided the collision.
IN BACKING.
In ..!\.Jmiralty. collision. Butle7',{)till'f!OCtn ,Iiubbard and Mr. Cromwell, for libelant. Gherarw. Davis, for. thePhoonix.. Goodrich,. Deady Goodrich, for the Atlanta. BRO\)W, ))istrict Judge. On tIle of the libelant's canaH>oat was takel;l in tow at the Morris can8(l basin, Jersey City, by Atlanta. to be to the Atlantic basin, Brooklyn. The was the outer of two boats on her port side, there being anothe,rb!)8.t on her starb:oard side. . The morning was foggy, and after waiting .a,bout an hour, .Q.t the mouth of Morris canal basin, the fog lifted qn her· way. When less tha.n. half way across and th.e. A,thlIl;ta the North nv.er, the fog shut somewhat thick near the wa· ter, Quit mu{}h less higqer up. Sho1';tly. afterwards. the libelant's barge was alittle .f01;ward of amidrsjlips by.. the!3tem of the steam on her, w.ayfrorn pie!:l. North river, to 0000:.