714
lfJ;)DERAl-
",,',
MAltGARET PUTRIDGE
J. J.
* SANFORD.
THE MARGARET
;,; ',' 1;
OO'urt,
New York. MaY.l. 1886.)
The interl'lsts of navigatIon !reqUIre that the entrances to slips, or to narrow that 'are j)uQlicthorougllfares, be kept free fromobstructioDS that !hake plLliilage danger6us. Vessels that,moor S6 as to allow parts of their hulls to pl'oje,ot partly across suol!. passages".so as to make eJ:l,trance difficult. 'jP'ill be h.eld with con,tdputory negligence in case of collision. · to circuit court: see' 37 Fed. 148.' .
CANALS-'- E'Nrn!\.NOJ1l OnSTRUOTED-"- PROJECTING BOATB..c.;.. CONTI\IBUlTOKy:FAULT. ' ; j ' . . . .
THE MARGARET J. SANFORD.
715
2.
CASE STATE]).....,EAST RIVER-HuNTER'S POINT CANAL.
The tug M. J. S., with a car·fl<;>at 180 feet long and 30 feet wide in tow,along. side, bouudfor Hunter's Point Canal, 157 feet wide, on approaching it in the, ebb-tide, found the entrance obstructed by vessels projecting partly across it from above and from below, making the entrance difficult and dangerous in the ebb. Instead of waiting for slack water, or getting additional help, she pushed on slowly, and run into the bow of the ship T., which encroached some 15 or 16 feet upon the entrance. Held both in fault,-the tug for keeping on in the face of known danger; the T., for unjustifiably obstructing the entrance.
In Admiralty. Butler,Stillman Hubbm'd and Wm. Mynderse, for libelant. Benedict, Taft & Benedict 1 for claimants. BROWN, J. About noon of March 24, 1885, the steam-tug Margaret J. Sanford, having in tow along.side a float loaded with railroad cats, went up the East river, bound for the Empire docks, at Hunter's Point. The docks are approached by what is called a "canal," 157 feet wide, running inland at:dght angles with the river. Above the canal a bulk-head extends some 600 feet along the East river, used by heavy draught vessels. At this time the British vessel Tantallon Wag, lying along the bulk-head, loading with oil. her bowsprojeeting eorne 15 or 16 feet beyond the corner of the bulk-head, partly across the line of the canal. The opposite bank of the canal extends' some 95 feet further to the westward into the river, and from that'point a runs down river, along which, at this time, another vessel was moored, whose stem projected up river some 30 feet, across the line of the canal, and her bowsprit Bome 30 feet more. The railroad float was about 180 feet long by 30 feet wide, and was on the port side of the tug, which was about 80 feet long by 18 feet· wide, the 'sterns of the two being about in line. The proofs show that this was the best' mode of lashing, and that the pilot directed 'the navigation from the pilot-house, which was also the safest and most propel' place for him. The tide was ebb; the day pleasant. On approaching the canal, observing the obstructions, the pilot hailed the Tantallon when about 30 feet distant, and desired to tie up along-side of her. He was answered byaman from the wharf that he must not do so, but should come into the canal. In attempting to go into the canal, the port corner of the float strUtlk the Tantallon's starboard side, some eight or ten feet from the stem, and broke two iron plates and one frame,which were repaired at an e){pense of 3700.94. The damages were near the wftter-line. and the loading of the vessel Was suspended to repair them, as was stated,for seven days. The libel was filed to recover the damage for the repairs, and an equal amount for the delay. ' 1. From the facts described, as well as from other evidence at the trial, I must hold, that, upon thE! ebb-tide, with a cumbersome float, it was neitherpl'udent nor reasonQ.bly safe to attempt to go into the'caIial at that time, while there were such obstructions to the entrance. This seems to have been understood:and appreciated from the firstiaridthis' makes the tug legally ohargeable with fault {or 'making tneattempt.
716
FEPERAL REPORTER
Perils of the seas cover only such dangers as remain after the exercise of otdinaryprudeifce in avoiding dangers, not risks thataie voluntarily tered upon when the lln<:iertaking is seen to be not reasonably safe. Vessels desiring to land or to go into slips, if they would avoid liability for incurring sl1ch risks, are hOun.d ,to wait for slack water, as the Sanford in this case might have done, or fO,r other means of help, or until the obstructions are removed. The tug in this case was'certainly not in any such situation in extr'emi8 as compelled her to enter the canal in spite of the obstructions. The inconvenience of waiting for sl/ick water, or of obtaining other help, is not to be compared with the dangers or the injuries likely to arise from on, in spite of evident special dangers. , . . Teannot hold vessels lyin,g, like the Tantallon,. with their bows projecting across the entrance of slips, or the a narrow canal by.other craft, free froln fault. Such projections are tions' to rightfpl navigation in, thoroughfares designed' to 'be kept open, where, without, any obstruction!!,', thelie -is none too rnuchroom for reasonable navigation. This much used for floats ofthisdell,cription. The tug ,and ,fioatwere consigned to the dock within this canal. They had a right to go :there, and nol; to' be ,kept unreasonably waiting for safe means of entrance. The interests; of navigation require that such entrances should bekr,pt open, and that encroachments that make 1:he passage dangerous'should be held wrongful on the part of projecting vessels, as respects other vessels bound in or out. '1'he owner· of the ,dock located this steamer, it is said, as she was placed; but he also directed this tug and tow to up the passage. It does not appear that the canal was private property. I must assume it to be a public thoroughfare, which no vessel had a right to obstruct. The fact that the owner, of the dock requested the vessel to go there is no defense to her, though that might make him also liable; nor does his direction to the tug to come into the canal excuse .the tug. As between the two· vessels, the directi9n given to either is no defense to the other. There was plenty of time and opportunity for the steamer to have been moved back and away from the canal after the vessels astern of her had gOl[le away, and before the tug, arrived; and, so far as appears, the vessepsremaining up to that time, ;with her bows projecting over the canal, was without valid excuse,as;weJlaa wrongful. In the case of The Canima, 17 Iled. Rep. 271, the projecting vessel was held, on appeal, not chargea1:>le with damages, on the sole ground, as I understand the opinion, that the other vessel had no business to be in the.place where the collision occurred; otherwise it is intimated the damages would have been divided. In the present case the canal or was the place where.tbetug,was bound, and where she had a right to go. The approach was The Tantallon had no right to be wbere she was, so as to obstruct thecaual. She.owed to every vessel bound in or out the duty of a.llowing an unimpeded passage. Both must therefore be held chargeable with fault contributing to the injury. The Baltic, 2 Ben. 452.
BOLTEN
THE JAMES L. PENDERGAST.
717
I allow the libelant $750 for one-half the damages, unless a reference be desired, which either party may take, if wished. The costs are also divided. My decision was arrived at before the application by the libelant to take the additional deposition, and has not been influenced by it.
BOLTEN 'V. THE JAMES
L.
PENDERGAST.
(Diaf!rict Oourt, S. D. New York. March 31, 1887.)
1.
BOTTOllRy:-cNoTE FOR SupPLIEs-MORTGAGE.
A note given by the master in a foreign port by the owner's authority for necessary supplies, pledging the vessel for the payment 10 days .after completionof lier voyage, is a valid bottomry lien, and outranks a pnor mortgage.
'
The vessel having bElen libeled at Boston to enforce the bottomry. and being custody of the marshal, was and that suit discontinued, upon a wrItten agreemellt between the p,artles that she should go to New York to take in cargo, and that the existing lien for bottomry should remain in full , ,force, to be enforced in the di-strict court of New York or New Jersey, by libel or otherwise, on arrival, ,and that the owner should pay all court, expenses in Boston on arrival, to be secured as part of the lien. Held, upon 1ltJe arrival ,of the vessel in, New York, under the agreement, that the libelant had a valid maritime lieufor the amount due on the bottomry note, as well as court expenses in Boston; excluding, however, additional counsel fees. SAME-NEW CHARTER-RE"ARREST-MARSHAL'S AUTHORITy-LOADING WHILE IN CUSTODy-DELAy-DAMAGES.
SAME-.ARREsT-RELEASE:UNDE,R AGREEMENT-LIEN CONTINUED.
8.
The defendant, upon the above agreement, insisting that, before settling the bottomry claim, he had an option to send the vessel to Bayonne, New Jersey, to load under a charter which did not nanie the particular place of loading, held inconsistent with the written agreement; that loading without the charterer's knowledge of the lien. and of the agreement for enforcing- it, could not proceed without bad faith to the cbarterer, before a neWtlrTest by the marshal; that the marshal had no authority to permit loading without notice after arrest; and that the owner's rlamages, through delay in not load· ing under the charter after the re-arrest, were through his own delay in settling for the lien, or releasing the vessel nnder stipulation, and that there was no cause of action or offset against the bottomry creditor therefor.
,In. Admiralty. Jas. K. HiU, Wing & Sltoudy, and H. Putnam, for libelant. Whitehead, Parker & Dexter, for claimants. BROWN, J. The libel in the above cause was filed to recover the sum ()f $1,592.50, upon a draft drawn and negotiated to the libelant by th3 master of the James L. Pendergast at Hamburg, May 7,1886, for £325, payable 10 days after arrival at Boston, Massachusetts, at the office of the consignees. The last clause of the draft is as follows: "Value re.()eived, for the. necessary use and outfit for the said vessel, and for the payment of which I hold my vessel, owners, and freight responsible." no doubt that the draft. drawn tQ obtain necesThe prQofs saries for the ship at Hamburg, and in form and substance by the authority of Mr. Pendergast, who was the equitable and managing owner.
