716
FEDERAL REPORTER.
shore. Assuming that the channel is ordinarily 400 yards wide, and runs dJse to the island, this would give the Hickory 250 yards and the Ntlil only 150 yards. My conclusion is that the Neil was in fault for reasons heretofore stated, and that the Hickory was in fault for not bearing further to her larboard and leaving a wider space between her and the island. ' There will, therefore, be a decree dividing the damages and costs. So ordered.
THE COLmmIA.
.BAYSEN and others v. THE COLUMBIA and'THE EDGAR BAXTER. CAHILL and others v. THE COLUMBIA. THEl NAT. FREIGHT AND LIGHTERAGE Co. v. THE COLtiM1rfA. 09urt, E. D. New Y()1'k.
,June 14, 1881.)
1.
IN EAST' RIVER-TUG AND ]'ERRy-BOAT-UNAVOIDABLllf AOCIDENTCOLLISION AT PIER' ' '
Where collisions occurred in the East river, at New York, in rapid sUccession, between a alid a. ferry-boat entering her slip, a :bark in tow of the tug and ,the fer11Y-boat, land the ferry-boat and a lying at tlie end of the pier, ,and actions for damages were, brought by the owners of the bark against tug and the ferry-boat, and by the owners of the tug and of the ligh1er against the ferry-boat, held, that the tug in fault for the first two collisions, having attempted to cross the bows of the ferry-boatrwhell'she might have gone safely under her stern; and the collision of the ferry- bOat with the being unavoidable by her as the result of the other collisions, tho libel oithe lighter against'the ferry-boat must be dismissed:
was
'. Hill, Wing cf; Showdy, for Baysen and otbers. B. D. Silliman and E. L. O/l1en, for' tbe Columbia and tbe Baxter. E. L. for Cahill and others. . B. D. Silliman, for tbe Columbia. G. E. Growfor the National Freigbt and Lighterage Company. BENEDICT, D. J. These three actions, wbich arose out of a collision tbat occurred at the South ferry, on the fourteenth day of Octoqer,l879, have been tried together. The ferry-boat Columbia, one of the ferry-boats of the Union Ferry Company, plying on the South ferry between New York and Brooklyn, was, at the time in question, on her regular trip from Brooklyn to New York in the daytime, the tide being ebl? and the clear. The tug Edgar Baxter, having the bark Laura in tow upon a hawser, was approaching the East river, from the North river, on a course crossing that of the
THE COLUMBIA.
711
ferry-boat. The ferry-boat kept her course towards her tllg kept her course, rather drawing nearer to the New York piers, .until by which the boats were close together, when she dropped the she was towing the bark, and sheered sharply to starboard; By this movement she was brought into the ferry-slip, and when in the slip she was struck by the ferry-boat on the starboard side, sustaining the damage sued for by the libellant Cahill in the second of the above-men.. tioned actions. At the time the came in contact with tbetug the headway of the ferry-boat had been about stopped by the reverse action of her engine, and by the continued action of her ferry-boat was carried back a short distance. She then moved ahead again, when the Laura, having been cast adrift by the r tug,,1)ut still moving ahead, brought up 'on theferry-boat's; &tern, ltnddid. ·some slight damage to the ferry-boBit, besides susta,jning some dama 0 herself. .To recover this.. damage to the Laura the libellant. BaySeB brings the first of the above-mentioned actions bO.th,the fel'fy-bo8it and the tug. '. ferry-boat,shortlyaftel' she was s.tiuclt by the bark, brought up with her bow against the lighter ,watson, then lying at the end of pier 2, a pieri forming the east slda of the fE!r1!Y,slip, and did some slight damage:to the lighter, f<?i the.reoov-&ry whereof the third of the above-mentioned' actions isbro-ughtagajnst the ferry-boat alone. ' "UJ The testimony, although not free from Qontradictions in some: .pal1ticulars, leaves little room for doubt in facts. r, .: i": '. ",':C: It plainlY"appears that, as the vessels the tng had the ferry-boat upon her starboard sider and the vessels were on courses 61'ossiug each other. According to the ruleofnavigation it was, therefore, the duty of the tugtoa'void and the duty of the ferry-boat to hold hercoUfse; The ferry..,boa.t did hold her course,and the tug did ,not avoid her.; The tug would have avoided the ferry-boat if she had stopped when she saw the approaoh of the ferry-boat. She claims, by way of excuse for that, havinR the bark in tow, it was not possible for her tb' stop without incurring the danger of being run over by the bark. But ,1 am not satisfied with this excuse. As 1 view thee.'Vidence the tug could have stopped, and even backed away, without being run over by, the bark. The tug would also have avoided the ferry-boat, if, when the ferilyboat was seen to be approaching,. the tug had ported. her helm .and gone out towards the middle of the river. _She claims, by way of
11'8,
exense:fornot pOrtIng, that it'was impossible for her to do -so because of the presence of a number of vessels coming down the stream at that time; It is true that numerous wit:J?e13ses, who saw the collision, say that it was not possible 'for the tug, under the circumstances, to bear off towards the middle of the river so as to avoid the ferry-boat. The :strength;of this testimony, as evidence of an impossibility to steer out on the part of the tug, is, however; greatly shaken by the fact that the bark bore off towards the middie of the river when the hawser was ·cast off, and the more important fact that another tug justbehind,the Baxter did, in fact, bear off and passed in safety astern ' But if it be true that the tug-boat, by electing to of the keep along -the piers intbe eddy-tide, instead of putting herself in the middle of the river on passing the battery, as beyond all question she could have safely done by timely atltionto,that end, placed herselfJn a:position where she could do nothing; hut keep on across the ,bows; uf the ferry-boat at the risk of collision> still she ieguilty of :The statute otthisstate required her to be in the middle of .the riwr from the time of passing the' barge office, instead of which .'Il'hewas' ,near the piers ; arM' this intentionally for the purpose of '1&ving time by taking advantage of the eddy-tide. Such an attempt MOP.g by the mouth of the ferry-slip was illegal, and if, in the prosecution of an illegal undertaking, the tug placed herself in a. .position where it' was not possible for her to discharge the duty cast 'upbnherby;;the:riles of navigation, namely, to avoid a vessel proaching her course upon her starboard side, she has no cause to eomplainofanydamageresuIting from her disobedience to the law. I have not overlooked the argument based on the testimony in respect to -o.,uaageforvessels passing up the East river keeping close to the piers in ordert6 :take advantage of the eldy-tide. Butno such usage can.oo'eotmtenanced;It is forbidden by the law, and must in every instahc,e beheld illega.ibythe oourts. It would, indeed, be held by the courts if there were: no statute, because of the unneces· ,SIlXY danger of oollision created thereby. It is said theferry.boat shemM have stopped. No doubt this collisioDwo.uld :have been avoided if the ferry-boat had stopped in :time to permit the Baxter and her tow to pass along inshore of her. But.jiherules of navigation gave the ferry-boat the right of way. She had the right, therefore, to assume that the boat would bear off instoo.d vf "inshore, and the situation required her to act upon that assumption and keep on her course. This she did, and the result affords good ground fOr the belief that if the tug-b0at had done what
,'THE KATE. CANN.
'H9
she could to have passed under the stern, instead of aet'Osathe.l;owB, of the ferry-boat, there would not have been any collision. These views' dispose of' the action brought by the ':&J.ter against the Columbia, and compel a dismissal of the 'libeLin,;tbat They also compel a diamissal of the libel of the as against the Columbia, and entitle the libellant Baysen to a decree against the Baxter. The case of the lighter Watson is different, for 'she was lying at the end of pier 2. Still, I am inclined to the opinion that the ferry-boat must be absolved from any liability for the damage done to the lighter. I cannot say, upon the testimony, that the collision with the lighter was the result of negligeno,e on the part of the ferry-boat. The ferry-boat was, by the fault of the tug and driven into very dose quarters, and tum by a few feet, when, in the endeavor to escape from her tow, she brought up against the lighter, which had seen fit :put herself in an exposed position at the end. of pier, any damttge resulting therefrom, if not to be conside-\"ed to bew,ithiu 8.ssumedby the lighter when ahepla.ced ,an eltposed position, muat, in" my opinion, be of the result of the negligence of the, tug, for whicp tJ1e not the ',',. ferry-boat, would, in that case, 1:>e 'The libel oLthe National Freight and Lighterage therefore, be dislDistled. Ul' ; '; ·
,.
TH'E KATE CANN.;: 'f,
(Circuit Cow-t, E, D. New York. June 28,18B1.) 1. PERSONAL INJURy-,NEGLIGENCEIN STOWING CARGO.
i)f; .
·
,',':,;
The decision in this case, as reported in 2 FEn. REp. 241,
In Admiralty.
h
, " C. J. I am entirely satisfied with the arrived at by the district judge in this e/l.se"anil witp. the assigned by him therefor in his decision. The case is one the damage sued for was caused by the wrongful neglect, npon navigable water, of a maritime duty owing to the libellant by the owners of the vessel, and arising out of the employment of the vessel as a carrier of cargo, and for which the vessel herself is liable. The facts and the law are carefully examined by the district judge, and the distinc· BLATCHFORD,
J. J. Allen, for claimant. : Hill, Wing J: Shoudy, for respondent.
.)
