THE HARRY AND FRED.

681

pointed out,....=...one on the tlast and one on the west." It is evident, iherefore, that there was no uniformity about these lights, and the master of the St. Nicholas was the more culpable in steaming against the drawbridge in the dark night at the rate of seven miles an hour. On the whole, there can be no doubt whatever, in our opinion, as to the negligence of the St. Nicholas, and that the libelants are entitled to recover the entire amount of the stipulation. A master will be appointed to apportion this fund among the libelants, after providing for the cost and expenses of the litigation, and, when his report is filed and approved, a decree will be entered in a<>. cordancetherewith. The decree was satisfied in full, without appeaL

THE

KINa

TV·· "£lmTows-ToWING

11.

HARRY AND FRED.

THE fuRRy

AND

FRED.

(Di8trict Court, E. D. New Yorlc.

February 1M, 1891.)

,Tow. A tug-boat, in undertaking to tow a boat over a bar, the conditions of which are unknown to the tow, is bound to ascertain her draft, and not attempt to tow her if the water is insumcient.But when a tow is taken as usual in a long course of dealing, the requirementlof which as to draft were well known to the tow. and the master of the tug had no reason to suppose that the tow was loaded deeper than allowed; and took her in the best water, and. the tow, in consequence:of her unusual draxt, gronnded, the tug was heW, not liable. ,

OVER BAR-GROUl'lDINa-DUTY OJ' Ttra-KttOWLllJ)GB OJ'

In Admiralty. . Suit against a tug to recover for grounding tow. bel dismissed. James Parker, for libelant. Alexander & Ash, for claim'ants.

Li.

BROWN,' District Judge. On July 25, 1890, the libelant's canal-boat D. M. Long, loaded with ,coal, ran aground while passing over the bar in going up Coney Island creek in tow of the tug Harry and Fred, and: sustained damages for which the above libel was filed. The evidence leaves no doubt that the libelant had repeated and abundant notice that to go up that creek his boat must not be loaded deeper than 51 feet. Though the depth of water on the bar a little before high water varied somewhat with the changes of the weather and the season, 51 feet was the well-known limit of draft that it was safe to undertake to tow over the bar. The weight of testimony is clearly to the effect that the libelant's boat at this time drew six feet at the stern, and still more at the head. She grounded at the bow and easily swung around so that her stern pointed up the creek, and she' could not be got off even with an additional hour's rise oithe tide up to high water. This fact, coupled with the swing of the stern, itself having six feet draft, confirms the sevElml other witnesses "ihat thedraft at the bow was considerably more than six · . Tbepilottes,tifies that the Long had the best of thewaterj and

682
30 feet distant abreast ·of. the bow to the right, the.water. was three inches

the libelant's'measuremen.tsafter the grounding; showing that at a point

less, confirm the pilot?s statement in this. respect. greater The libelant testifies that he had .l'epeatedly sent up the canal-boat at this time. Opposed to tonnage load thanwasaboal1d this is the testimony.of the consignee's son, that wbenthe. boat arrived up the creek on this trip she drew.5j feet after 30 tons bad been removed for the .purpose 'Of getting her off'. Some these fact that the canalapparent discrepancies may, perhaps,. be found in boat had been leaking before she:arrived at the bar, so much, so that in the absence of the boat's captain, two men were employed to pumpj and in coming down the two women on board were seen working the With the boat much by the head,tlle water from any leak would accumulate there and increase the draft forward. It is urged that the captain of the tug, before taking the boat in tow. ought to have examined her draft, and should not have taken her in tow if tbe water was insufficient. This wotilduridoubtedly be so if this had been a first trip, and the ,captain. ,a,nd tbe owner of the Long bad no Irithat case it would be tbe business knowledge of the of the tug-boat to inquire into her draft, before trying, to take her over the bar. But in case tp.ere had been along p!evious cOUrse of dealingj the boat had been up the .creek many timE'.s in charge of this tugj therflCluirements· were wen understoOd by all pai'tiesjand the captain had no reason to suppose the boat was loaded deeper tlian usual. or of it was'given to him. contrary tOtJ,le known Usage. No In coming to be towed in accordance with the previous custom, it was the duty of the tow to conform to the requirem'ElDts,and she was presumed to have dones,? The tug was not put upon inquiry,and had no rooso11to make inquiry or investigation concerning the canal-boat's draft. As tqe grounding arose from overloading, too much cargo, or lack of proper pumping, the,faillt was with the canal-boat; there was no negligence or fault on the part of the tug. I have examinedthe various authorities cited by the libelant's counsel, but do not find them applicable tO'facts like the present., As the tug is not an insurer, but liable for negligence only, the libel must be dismissed with cost&
THE A. CARNIB.

JOHN

THE OLINDA.

THE

(lHmict

JOHNA.

CARNDII.

D./jew YOr1c. February 18, 1891,)

W1Tl1. PIBIl-RBSPONSIBILl'IT.

2'VGe .Al.ID

In hauling a steaIIl-ship,wlth steaIIl up. out of a basin, it is the usual practice to . have a single'tuK haul he'r'Btet'n foremost on a hawser. the vessel to check her stern. way. if too great, by' goIng I/.hea4 on bel' own engine. steam-ship Olinda Willi being so out of,the Atlantic basin when her stern struck one of the piers of the outlet, doing damage for whioh t.hillibel agaln'st th\ltuir waa>1lled It 'ap)iearect