THE EXPRESS.
823
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YOlUt t1. THE EXPRESS.
(District Oourt, S.D. NtJID York. November 9, 1891.) 1. CoLLmoN-VBsSBL AT'Ptn-ll'oG-liIIGNALIJ. A vessel moored for the night, acoording,to her custom, along-side a well-known dock, and not projeoting beyond the wharf into the channel, and run into by a steamer passing in the fog, is not in fault because 8he had DO lights set, and sounded DO signals. L B.UIB-NAVIGATION IN FOG-NARROW CRANNBL-SoUNDING8. The Express, going east, met a thick fog at night at Little Hell Gate, and tinned ller naVigation ina,narrowand Winding ohannel, without using the lead; unt11 she, ran into the F. E., tied up, as usual, at a well-known pier on North Brotb. ers' island. A fog-bell on, the island, neal' the course of the Express, was rung frequently. Held, that the B. was solely to blame for the< collision,.It being her, duty to use the lead.
In Admiralty.
Wm. H. O/n,rk, Corp. Counsel, and James'M. Ward, for libelant. Ca1penter & Moshf!/1' ,for claimant.
Suit to recover damages caused by collision.
BROWN, J. The libelant's steam-boat Franklin Edson, which for the past two years has been used in the service of the health department" under the provisions of law for the transportation of persons having contagious diseases, was in habit of tying up at night on the southerly side of the pier extending from the notiherly aide Of North Brothers island about 275 feet into the water towards the Port Morris shore. A sufficient depth of water had been obtained there by dredging, and towards evening on the 16th of February, 1891, the Edson returned to her usual mooring plMe along the southerly side of the dock, at about 5 o'clock P. M., and was there made fast, with her head towards the shore, and her stern a few feet inside of the outer end of the pier. At a little past 7 o'clock the steam propeller ExpJ:ess, loaded with 19 freight cars, and with a float attached to her port side loaded .with 12 other freight cars, while making her way to the on one of her regular trips from New York toWHson's Point, near Norwalk, Conn., in a dense fog, ran up the pier just ahead of where the Edson lay, and carri3d her float upon and into the Edson, the latter great damage, to recover which the above libel was filed. The Express accustomed to make daily trips to Wilson's Point, leaving New York usually at about 6 o'clock P. M. When she started upon trip the weather was smoky, but without indications of thick tog. arriving near the mouth of Littlt3 Hell Gate, she suddenly into a bank of fog so thick that the spindle light on the Sunken ME'.adow could not be seen. She thereupon hauled a little to the southward, to avoid the shl;lals there, and afterwards, on hearing the bell and getting a glimmer of the light from North Brothers island, for a moment, nearly ahead,
was
On
1 Reported
by Edward G. Benedict, Esq., of the New York bar.
324
FEDERALJ;tEPOR'l'ER,
vol. 48.
she changed her course, so as to bring the light about two points on her starboard bow. She continued on that course slowly, and, as her pilot supposfld, towards the main ship channel between the North Brothers island and the Port Morris shore, till the Edson was sean 100l)fing through the dense fog only 100 or 150 feet distant, -too late to enable the Exher,eogines, to prevent collision. press, by the immediate There is no evidence on the part of the libelant disputing the evidence ofthe claimant that from the time the fog was encountered there was no place either to anchot or to moor short ofPort Morris, and I therefore assume that to,be the fact.. The evidence also shows that the engines and twin screws 9f the Expre{3s were worked slowly, under one stops; that the tide was ebb, and that the. usual bell only, with course 'of the Express against the ebb-tide Was .by the Port Morris channel, and. not ,between the Two Brothers·. The master states that he would have gone into the Port Morris dock if he had made it, but that he was not specially endeavoring to make the Port Morris shore. No lead was thrown by the Express, and no on!" was at the time of collision on board the Edson, nor were any signals given from her. The Express was' sound. mg hedog-whistle, as required by law, at short intervals. The respondent contends that under such circumstances no blame is attributable to the Express, and that the Edson was in fault for not having persons on of vessels. approaching in'the fog in a board t6:ariswer the channeI.where navigation is difficult.. . I cl1nhot sustain the defense of inevitable accident, nor absolve the frofublame. The master was familiar with the win<ling chanthe nel, the,pl'oJecting pier, the habit of the Edson to moor pier at night,' the course of the tides, and' the position of the light and bell ()n'North Brothers island.. He was' not in fact proposing to COme to anchor or to as possible, but to pursue his navigation through the fog. In choosing this alternative, he took the risk of injuringather ves3els properly moored at the docks. I havelittle doubt that ran upon this dock he did not intend to make the Port Morris shore., In'thick fog, where from any cause there is doubt as to one's position,:the obligation .to use the lead when practicable is well settled, (Tne Marilana, 17 Fed. Rell; 377; The City of Para, 44 Fed. Rep. 689 i) and, as the evidence showed, is often acted on in going around the North Brothers. It is urged that the use of the lead would have been impracticable, owing to the great depth of water, except so pier as to be of no use. But the course of the Express in reaching the point where she came up against the dock contradicts, as it seems to me, this contention.·· The master Says that he didnot change his helm after getting the North Brothers light two points on his starboard bow, so that the Express',ili order to come up to lhe !lock fit nearly a right angle, as she did, must,fotsome time before, have been in the shoal water off the western side of the island,so that the lead, if used, would have apprised her of her position in ample time to have avoided this accident. His not improbable that the master mistook the distance of the bell and light, and supposed the use of the lead unnecessary. The evidence of Joyce leaves
THE COLUMBIA.
325
no doubt that the bell was rung very often, and was perfectly audible. I am not satisfied with the meager recognition of the bell that appears in the testimony in behalf of the Express. If not heard or noticed more than appears. there was neglect in attending to it. I do not think the Edson is within the line of cases that require a light or fog-signals. In all the cases cited by the claimant, the anchored vessel held in fault for the lack of signals in a fog has not been a vessel nioored at a dock at her usual place, but one lying at anchor in or near a fair way, where vessels were likely to pass, and were to be expected. It is impossible to say that any vessel, in navigating on either side of North Brothers, was to be expected to run up against the dock where the Edson lay. The Edson was not off the end of the dock, but on its side, and wholly within its exterior line, in a place where sufficient depth of water for her had been obtained only by means of dredging out the shoal bottom. As the Edson had no reason to expect any vessel there, she was under no more obligation to give signals to other vessels, or to keep persons on board of her for their benefit, than was the owner of the dock for the purpose of protecting his wharf. Decree for the libelant, with order ofreference to compute the damages.
THE BOYER
COLUMBIA.· 'D. THE COLUMBIA.
et al.
(Dfstrlct Oourt, S. D. New York. November 10,1891.) COLLISION-VESSEL AT PIER-WIND-INEVITABLE ACCIDENT-INATTENTION.
The steam elevator C., having a large surface exposed to the wind, in attemptinK to moor along-side certain barges at Twenty-Fourth street and North river, struck and sunk one of them. The elevator claimed that the collision was an inevitable accident, due to a sudden gust of Wind. The evidence showed that the wind was strong on the New York side; that the elevator left the less exposed side of the river and crossed. at Hoboken, where the wind in the lee was light, with the wind nearly astern, to the more exposed side, Where the barges lay, and where especial care in a strong wind was necessary. Held that, though inevitable accident may arise from sudden gusts of wind, the evidence showed that this collision arose from lack of sufficient caution, and inattention of the pilot, and that the C. was liable.
.".
In Admiralty. Suit to recover damages caused by collision. Carpenter & Mosher, for libelants. Platt & Bowers, for claimant. BROWN, J. In the afternoon of April 23, 1891, the libelants' scow barge Nestor, with about 450 tons of fine sugar on board, was lying hi the slip between Twenty-Third and Twenty-Fourth streets, North river, moored along-side of ,two lighters, which were next outside of, and moored to, the steamer Ethopia, which lay on the southerly side of the' 1 Reported
by Edward G.Benedict, Esq., of the New York bar.