THE THOMAS P. WAY.
think adopted, as she claims she did adopt, the most prudent course. She left plenty of room for the sloop, and had a right to assume that the latter would keep her proper course in beating. As the sloop's failure to do so was the real cause of the collision, and no definite fault contributing to the collision appears on the part oftha steamer, I am constrained to dismiss the libel with costs in the first case, and to decree for the libelants with costs in the second.
THE THOMAS
P. WAY, etc.
(District Court, S. D. New York. December 20, 1884.) COLLISION-RuLE 23-CHANGE Oll' COURSE-DEPARTURE IMMATERIAL.
In Admiralty. Howard A. Sperry and J. A. Hyland, for libelant. Butler, Stillman &; Hubbard and W. Mynderse, for claimants. BROWN, J. On the eleventh of September, 1883, as the yacht Ariel was beating up the Kills off West New Brighton, Staten island, she came in collision with the steam-boat Thomas P. Way, bound down, on her way from New York to Newark. The Kills at this point is about one-third of a mile wide. The collision was about 200 feet from the Jersey shore. The port bow of the Way struck the starboard bow of the yacht, carrying her along under her guards for some little distance, when, by backing, the steamer cleared and passed astern. The Way was going down the middle of the Kills at the rate of about 12 miles an hour. The yacht, having previously neared the Staten island shore, was seen to tack, come about, and make nearly across the Kills towards the Jersey shore. When about 600 to 700 feet distant from the Way, the latter, without changing her wheel, slowed down in order to pass under the stern of the yacht, which was then on the steamer's port bow. The captain of the steamer testifies that after this slowing, and while the Ariel was still upon his port bow, and when about 500 or 600 feet off, she came up into the wind, apparently designing to tack again towards the Staten island shore; and that he thereupon ported his wheel, and started up full speed in order to pass ahead of the yacht, but that soon afterwards, when the yacht was about 400 feet away, she paid off again,
740
FEDERAL REPORTER.
when he immediately stopped and reversed his engines, but too late to avoid contact with the yacht, though the steamer at the collision had nearly stopped her forward course. I have no doubt, upon the evidence, that the yacht did not "keep her course" upon her starboard tack, as required by the letter of rule 23, when the Way was nearly approaching her. The only change, testimony, however, which the evidence, aside from. the supports, is the change made by paying off more to the westward. This change could not have possibly contributed to the collision in this case, and hence is immaterial. Waring v. Clarke, 5 How. 465; The E. A. Packer, 20 FED. REP. 327; Ca!/zer v. Carbon Co. 9 App. Cas. 873. It tended, in fact, to postpone the collision, and gave to the Way more time for stopping. The yacht being in full view, and the channel unobstructed, the responsibility for the collision must rest wholly upon the steamer, under rule 20, unless some violation of the rules by the yacht tended to mislead the steamer and to thwart her efforts to avoid the collision. rrhe yacht's paying off could not in t'bis case have done either. That is not the change alleged or complained of by the steamer. She insists, and her defense must rest wholly upon this claim, that the Arielluffed, and thereby gave the captain of the Way reasonable ground to· suppose that she intended to come about again before reaching the line of his course, and that she thereby induced the steamer to change her maneuver, and to endeavor to pass ahead of her instead of passing astern, as at first intended. No witness, however, confirms the captain's testimony in this respect. Several testify positively that there was no luffing, no attempt to tack, and no change of course in that direction. The original libel, it is true, states that the sloop did "what she could to keep out of the way." This, however, is consistent with the testimony on her part, afterwards given, that these efforts were all made in keeping off, and not by luffing. While the change of maneuver adopted by the master when near to the yacht would be a circumstance entitled to a good deal of weight, as showing that there was probably some change in the ssilingvessel's course that led to the other's change of maneuver, provided the change by the sailing vessel were corroborated by other testimony or other circumstances, still I cannot deem it sufficient, when opposed to so many witnesses testifying to the fact that the Ariel made no luff, and when not sustained by any other evidence than that of the master himself. I think the collision must, therefore, be set down to want of promptness on the part of the steamer in slowing, and in shaping her course to go astern of the yacht, or to some miscalculation by the captain of the steamer as to the yacht's speed. And this view is, I think, to some extent confirmed by the considerable distance, viz., some 400 or 500 feet, over which the steamer followed the yacht ant of the line of her own course, so as to come within some 200 feet of the New Jersey shore. Decree for the :ibelants, with costs, with reference to ascertain the damages.
LEONARD
v.
DEOKER.
'141
DECKER
and others.
SCHUYLER V. SAME.
{District Oourt, S. D. New York. December 20,1884.) 1. WHARVES AND SLIPs-NEGLIGENCE.
Persons in possession of a wharf and collecting wharfage are answerable to vessels, coming there in the usual course of traffic, for damages arising from ob· structions or defects in the wharf that are known or ought to be known to the lessees. .
2.
SAME-DAMAGE-JUIlISDICTION.
.
Where bolts projected from the wharf, in consequence of th Q) timbers which they had held in place getting torn away, and the wharf was left without proper repair, and injuries to the libelants' boats were caused by the projecting bolts, held, that the damage arose from negligence that constituted a maritime tort, of which the admiraltJ' has jurisdiction. and for which the respondents, as lessees, were liahle.
3. SAME-ToHT, WHEN 11'lAIUTIME. A tort is maritime where the injury IS received upon a vessel afloat, though the negligence originated on land. 4. SAME-DUTY TO REPAIH WHARF-LESSOR AN)) LESSEE. Though the lessor be bound to repair, the lessee in possession is answeraou, to the vessel from which he collects wharfage for injury caused by the wharf's being negligently left out of repair.
In Admiralty. Beebe & Wilcox, for libelants.
W. Howard Wait, for respondents. BROWN, J. The libels in the above cases were filed to recover for· damages sustained under similar circumstances, in March, 1882, by the canal-boats Vision and Mimose, while moored along the south· erly side of the pier at the foot of Bethune street. The pier was somewhat out of repair. Some piles or fenders had been torn away, and the bolts which had secured them were left exposed and projecting outward beyond the side of the pier. The bolts were under water, except when the tide was low. The evidence satisfies me that· both the canal-boats were injured by mooring along-side these concealed bolts without notice of the obstructions, or of the danger from them. The wharf was owned by the city of New York. The lease of it for three years had been put up at auction the year previous, and had been bid off by the respondents. The terms of the proposed lease gave the respondents the right to collect all wharfage that might be obtained from the pier, in consideration of a certain annual sum to be paid to the city as rent for the use of the dock; and the city was bound to keep it in repair. No formal lease was executed, but the respondents went into possession, collected the wharfage, and paid to the city the rent agreed upon in the terms of sale. Under these circumstancE\8 I must hold the respondents answerable for any dam· ages sustained by ves3els coming to the wharf in the usual course of traffic, arising from obstructions or defeds in or about the wharf or slip,