'lBB OITY 01' IIILWA.Um.
'6'
THE
CITY 01' MILWAUXEB.
(District Oourt, E. D. NBU York. Novemb.er 24, 1882.) 1. CoLLll!!lOlll' ON ERIE CAlIIAL-CAlIIAL-BoAT TIED UP.
It is the duty of a canal-boat. which ties up in a canal in a fog, to select the berme hank; and the burden is upon a boat which ties up on the tow-path side to show that she took sufficient precautions to warn an approaching boat, either .by strong light or by timely hails. 3. PRECAUTIONS O:lI1T'fED-A!'PRoAcnma STEAM CAlIl'AL-BoAT.
Where the first of these precautions was omitted, and the evidence as to the other precaution was oontl'adictory and open to suspicion, a.nd did not show that timely and hails had been given by a can.al-boat tied up. on the tow-path side of the Erie canal to !!on approaching steam canal-boat, held, that the libel against the steam .canal-boat for damages for the ca11ision which . occurred must be dismissed.
L. R. Steg';"(liTl, (with.whom. wasE. G. Davu,) for libelant. Beebe, Wilcox It Hobbs, for claimant. . " : BENEDICT, D. J. This action is to recOVerdo,lllages cauaedpya collision, between the canal-boat E'rank: and t4esteam,ca.nal. boat; City of Milwaukee, that, oCl3urre,d the Erie callal, a.bput mile west from Canajoharie, between 4 and 5, o'clock in the morning of the. ninth of October, 1880. The.libel,avers that .the Frank Noble, while lying stern to ,the west: up on the morning being somewhat foggy,-was :rull: intoby*e, ,Qity of Milwaukee, bound eastjthattheFrank Noble at the .time bad a watch on deck, who, as the. City of approached, tw,ice to give her notice of a on the and when, was 90Aeet distant t9 her to the. outside j that the City of Milwaukee disregarded .hils upon t.he Frank Noble, striking her on the stern, two .feet from on The li1;lel tht the powJamp of the Frank Noble ,was burningattheJime, and that a strong light waac8at astern froI;U lamp in her cabin4atch,and ,the.;Frank was .easily to be seen at a oonsiderable. distance... The faults.. tbEl City of failure pay from the F,rank Noble,and keeping: up her full speed on ar The answer admits the. collision at the time andpl/l;ce stated in the avers that the morning was so foggy as libel, tion necessary. It denies that any warning was /Jiven. City Milwaukee as she al?proached the Frank Noble, that the
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-Reported by R. D. & Wyllys Benedict.
Frank Noble was in an improper place, and an obstruction to navigation; that the City: of Milwankee' was proceeding very slowly, with just sufficient headway for steerage way, and close in to the t,ow-path side; that the Fr'atikNbble had lio'lights lior IMkbut, and gave no warning, and her presence on the tow-path was not known to those on , the City of.).\{ilwallkee,1,lntil so 'neartbat it was not possible for them to avoid her. UPbrJ: the faets it is first to be remarked tba.ttbe Frank Noble was tied up in an improperplace. When she found the fog too thick to run .withsafety it was her right to tie np, bnt it was her duty to select the berme bank ,for that purpose. n,as she olaims, at the place' where she stopped it was' not pOB.sible to tie to the bermebank, was tq: ,select another place,either by proceeding a short distance further or by stopping a few moments sooner than she did. Having tied up at an improper and dangerous place, the burden is upon barto 'taken sufficient'to warn a boat approaching from the west in time to enable auch boat to avoid her. Two fauch precautions were at her command-a strong light showing, astern and timely hails. The first ofthese precautions she omitted. Her bow light 'and the light ftom'h'er cabin were not in stich a fog to give warning to It vessel approaching from. the west. But she says 'that 'Bne 'did give ,timely arid sufficient hails to'the City of Milwaukee to enable tnat boat 'to avoid. her. The evidence upon this poiIit'on thepa:rfof the libelant consists of the testimony ofa single' witness,-,-thesteerllman of the Frank Noble, who was the only person on deck. In corroboration of the .statement of this witness that heloudIy'haile4 the Milwaukee, testimoiJy has been given by him, and also'by'the captain of the Frank Noble, and,<?n the other hand, by the captain and,the 'llteersnianof the City of Milwaukee,as to what said 6n the respective boats 'When they'passed each other immediately after the collisltnl. No twoof th'ese witnesses agree asto what wasthElDsaid, and all are equally credible. But the' uncontradicted the collision thesteersm:an of the Frank 'the, steersman of the City of Milwaukee $50 to swear' that the Fran'k'Noble had a light, indicates that there was little expectation ot'securing(ltedence for tM'statement that the City of MilUpon such unwilling to h&ld' arid'sufficient hails areptovEm'to have been gi vento, ,'. ',', . ' the cityot .. ;;The 'resnl't"is'tllat the libel must be' dism:issed'.
THE (11l,trfd Oo'lJll't, E. D. 14, 1882.) HlmMOOB";, , ADMIRALTY-COLLISION BETWEEN: VESSEL, IN MOTION.urn VEBSEL AT :iNj}$-LmELAGAINBT SEVERAL PROOF.
, Where a barge sinks two davs after collision with a ship in lIlO' thin, while' the barge was her moorings, and where' at the time of the' 'aileg'ed collision no complaint was made and but sllghtinjury discovered; and the" weather was such,withthe river pll,Cked, with ice" that ,the Inj1p'ymight have, ,,J;flsulted trom the grindinf ,ot ·the ice, tpe pf. rests:. upon the barge, in an action against the shIp and her tows, to'show that the' injury resulted from their negligence. ' ' .
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,Libel by the Qwnet:s of the ba.rge George the'l5hip Ma,t'yland and the steam-tugs New Castle,and ",The libelants while the Tw:ibell p;roperly mOQred: at, the wharf adjoining Point, gas-W,ork,s, in, ,the, river ware, on December 27, by reason of the negligE/nc'e of the. ,ship or.tq.a,tof, tugs,-':the Castle, which parted an inferi9r and:the left the ship the, purpose, of, opeping a through thE! The, New Castle claimed that furnished 1>Y was of sound and and noy, aubmitted, theapproval of the New ..: ,Tb,e qfaimed tha.t ber in opening a channel, icewp.s' the of her engagemen,t and duty.. ion had occurred, at .the no was complained of, and nonediscoyer,f¥l, heyoI).d. upon:, the fender of ,the Twibell, toacc;oj-lnt for that the bruise ,e>1 tp.e ice. while the Maryland was passing. It $h/l>t t4e not sink until the following night, ice, the grinding and pounding against the Twibell were sufficient to have caused her to sink. Theodore M. Etting and Henry R. Edmunds, for libelants. H. G. Ward, for the New Castle. J. W. Coulston, for the Yorke. Curtis Tilton and Henry Flanders, for the Maryland. BUTLER, D. J. The positive testimony respectiug the collision is in direct conflict, and the inferences arising from surrounding circumstances may be invoked with as much force, at least, by the respond. -Reported by Albert B. Guilbert, of the Philadelphia bar.