THE :NEW YORK.
757
the invention of the patentee, who sought only to improve upon the conception of the pre· existing Wren patent. The invention consisted in the manner in which the eye was constructed, by which method a portion of the eye was integral with the cross-bar, and does not include detachable clips which are secured to a straight cross-bar. There is no infringement. The bill is dismissed.
THE NEW YORK} . THE NORWICH. CoRNWALL
v.
THE NEW YORK.
SAME V. THE NORWICH.
(District Oourt,· S. D. New York. March 24, 1888.)
1.
SHIPPING-LIABILITY FOR TORT-INJURIES FROM SWELL OF STEAMER.
The duty of a passing steamer to guard against the injurious effects of her swell and suction upon the. smaller craft in rivers and harbors. has often been enforced in courts of admiralty. The steamer New York. going up the Hudson river against the tide, and the steam-boat Norwich. coming down with a tow, passed each otherin the chan· nel opposite to where libelants canal-boat lay along the shore taking in cargo. The suction and swell caused the latter to strike the bottom, causing damage, for which this suit was brought. The channel at the point was about 250 to 300 feet wide. and the steamers passed port to port. both moving slowly. The New York was notitled before reaching the place of the presence of the canal· boat by the whistles of a steam-tug lying near. and her pilot recop;nized the fact that he must pass close to her. Held, that the Norwich, going slowly with the tide, committed no fault, and the libel against her should be dismissed. Beid, that it was the duty of the New York, in the situation which her pilot foresaw. to have waited below the landing until the Norwich had passed. so that the New York could have gone further to port; or else to have stopped her wheel entirely while passing libelant's boat; and for her failure to do either she should be held liable for the damage. The Norwich's costs of trial were also imposed on her, as she opposed the libelant's offer to discontinue as to the Norwich, and required that she be retained under the tlfty-ninth rule. '
2.
SAlIlE-NEGLIGENCE-COSTS-FIFTy-NINTH RULE.
In Admiralty. Libel for damages. Hyland & Zabriskie, for libelant. R. D. Benediit, for the Norwich. O. & A. Van Santvoor(Z, for the New York. BROWN, J. On the 16th of August, 1887, the libelant's canal.boat, W. F. O'Rourke, was taking a cargo of ice at a landing by some spiles Mould's ice-house on the east driven close alongside the dike side of the Nor,th river, a little below Greenbush, andubout a quarter of .a. mile above Dow's point. At 6 P. M., when her cargo was nearly completed, she was drawing about six feet of water in a depth of about seven . I RtliJ01'tcd t.\' ElhV:.Ll'd G. BCllcuict, Escl.· of tho New York bar.
7158 feet timethe,large passenger steamer, of the day line from Yorkto Albany, passed the landing, and through the suction and thereby pJ,'oduced qaused the boa,t to strike the b()tthe sides of the spiles, so that Pl;ll'ts of her bottom were broken. Outside and along-side of the libelant's boat was the steam-tug Robertson, whose pilot, seeing the New York coming up from below, gave several short blasts of his whistle, which were heard by the pilot of the New York when off Dow's point. The pilot of the latter understood that it was a signal that he should be careful in passing the ice-house, and that there was a boat there loading. The landing had been used in the same manner for loading boats with ice for about six years, and was regarded by the ice-men as a specially good place for the purpose. The bottom was of hard sand. The steam-tug Norwich, with a fleet of canal-boats in tow upon a hawser, was at the same time coming down river. The Norwich 'imd New Yark passed popt to port. Whenabrelist of the landing, the available channel-way was. only about 250 to 300 feet wide. The evidence shows that the Norwich passed as near to the west side as was safe; that she. was going very slow; and that with the ebb-tide, she could not stop; nor safely diminish her speed. The New York' pasfo:ed abotitmidway between the Norwich's tow and the Robertson, leaving some 25 or 30 feet space on each side of her. The evidence does not show any fault on the part of the Norwich. There is no reason to suppose that any part of the suction and swell that caused the damage was attributable to her,Nor was she under any obligation to stop for, the New YOl'k; if it were not safe for both to pass through the passage at the same time; the obligation to w,ait would in that case be upon New York, as the steamer' going against the tide. The libel as against the N0fwich must, therefore, be dismissed. On the part of the New York, lam satisfied that when abreast of the ice-house she Was going at a very moderate speed. Some half a dozen witnesses on her part say that her speed atthe timeshe passed the landov:er three ()r four miles per hour. Her pilot t,hat ing she was going half slow, i. e., at a speed of about seven miles, before reacl:iing Dow'spoint, or below; and that, seeing the boats at the landing, he then reduced her speed to dead slow, before the Robertson's signals were heard; and that they continued dead slow until after ing the landing. The Norwich, however, had been seen, and whistles exchanged, by which it was understood that the New York was to pass to the right, which would necessarily hring her verydose tothe boat at the landing. She was bound, therefore, to take extra precautions ogaillstthe danger from the suction and swell in passing. The necessity of .such precaution was well known. The pilot understood the signals.' The New York is the largest day boat upon the river, and her suction ,and swell among the m9st The river is for the common use of boats, large Imd small, in all legitimate business. The Daniel Drew, 13Blatchf. 523. The need of precaution and the practice and necessity' of guarding against the injurious effects of the heavy swell and suction oflarge boats upon the smaller craft that have equal rights in the
liRE NEW YORK.
759
rivers and harbors, are well understood, and have been often enforced in the decisions of this court and elsewhere;' The Drew, 22 Fed. Rep. 852; The Rlwde Island, 24 Fed. Rep. 295; The Batavier, 9 Moore, P. C. 286. The evidence does not'show that the place of this landing was specially unfit or as to exclude any right of other craft to use it as a clanding. Its use for six years without' accident, so far as appears, affords a very strong presumption to the contrary. I cannot hold the pres,enGe of the, canal-boat there to have been. an unlawful obstruction, or a fault. I think. it was the legal duty, therefore, of the New York, in the 'situation which her pilot foresaw, either to wait below the landing until ;the Norwich and her tow had passed, so that she could go farther to the westward abreast of the landing; or, if.she did not wish to do that, to :stop her wheel while approaching and passing the ice-house landing. E,ither of these courses was entirely practicable; either would have avoided injury, and neithei' would have imposed.any unreasollable burden upon ipe New York.. Ql.1itea number of the libelant's witnesses estimated the New speed at from 11 to 15 miles. I think this estimate is altogether incorrect.. I think the New York came to dead slow,as her own testify; ltndfrom the number of revolutions which they give .at the various .rates of spe\:ld, it is probable that she was going from five to six knots.. was slack; the current weak. There was no suflicient my judgrpent, for not stopping her wheelfor one or two lengths while approaching and passing the landing. She had abundant motion for steerage-way. Nor would there have been any difficulty in maintaining her place and heading below the ice:-house, by occasionally stopping her wheel,jUntil the Norwich and her tow had passed by :her; so as to allow the New York to go' farther to the west, if she preferred t1?at cou,rse.. .'. . . . The libelant's boat is without fault, and is, entitled to be -compensated for the that she suffered. Loading tothe depth of six feet draft within about.a foot of the depth of water there; was not in my judgment unreasonable, or any fault on her part. Tbe libelant is therefore entitled to a decree for damages and costs against ,the' New York -only. As against,tbe Norwich, the libel must be dismissed,with costs; but as the libelant, at the beginning of the trial, offered to discontinue as to theNorwil}h, and the New York required that she be retained at her costs, under the fifty-ninth ruJe in admiralty, tbe Norwich's costs of trial must be also taxed against the New York.
760
FEDERAL REPOR1,ER.
THE PH<ENIX. LoWNDES
TlIE PH<ENIX.
(Di8trict Oourt, D. South Oarolina. April 5, 1888.)
SHIPPING-LIABILITY OF VESSEL FOR TORT-MASTER AND SERVANT-DEFEC'I'IVE ApPLIANCES.
Libelant. who was one of the gang of the lltevedore. was at work in the hold cotton, when a sling containing three bales parted, and one of them fell down the hatchway and s:truck him, inflicting serious inju"ries. The vessel at the' time was in full charge of the stevedore, who was selected by the charterer and paid by the ship, and Who furnished all the hands, including a man at the gangway whose duty it was to warn the men in the hold when the cotton was on the way. This duty he failed to. perform. The ship suppliedtbe appliances for loading, and among these were the slings, which, owing to the bard usage, rapidly wore out. The stevedore, his foreman, the gangway man, and the man at the winch all testified that at least one of the sling'S (there were two)furpished llY the mate for this particular gangway had all the appearance of being an old one, and the. stevedore and his foz:eman, to whom theniaster showed the broken sling after the accident, swore that not only was it dark in color like an old sling, but that its ends at the break were stranded. The testimony of the officers of the ship was to the effect that both slipgS were entirely new, and had never been used before. The mate. who got possession of the broken sling. and kept it, admitted on his examination. which was de bene es8e, that it was on the ship. The ship was then in port, but the sling was not produced at the trial. In addition, the foreman of the stevedore testified that he had frequently called the attention of tke mate to the unsafe character of. the slings. Held. that as a matter of fact the sling was an old one, and it bein/!; duty of the ship to furnish the stevedore with safe appliances, the ship was liable.
SAME-NEGI.IGENCE OF FELLOW-SERVANT. "
A vessel taking in a cargo of cotton wa-s ,in full charge of the stevedore, who furnished aU the hands, including II man at the gangway and others in the hold. It was the duty of this man to warn the men below when the cotton was on the way. ThIS he failed to do, and, a sling breaking, one of the bales fell down the hatchway !lind struck t'he libelant, who was employed by the stevedore to stow the ·cotton. The immediate cause of the accident was the rope of which the was ml1de, and which was old. It was the duty of the ship to supply these slIngs, and to see that they were in good condition. The libelant was permanently disabled by the accident for the most exacting duties of a longshoreman,though he was not incapacitated, with his experience and skill, from making a living. He was confined to bed a considerable period by his Ipjuries, and lost much time. Held, the of the ship being the immediate cause of the accident, that the fact that the negligence of a fellow-servant contributed thereto was not, in admiralty, matter in discharge,but only in lliiiigatiori of damages; and that $1,500, with $75 as doctor's fees, should be 'allowed. . .. .
In Admiralty. Libel for damages for personal injuries. Inglesby & lvIiller and 1. P. K. Bryan, for libelant. I. N. Nathans, for respondent. SIMONTON, J. The libel is for injuries sustained by libelant on board of the steam-ship Phamix, on 11th February, 1888, she being at the time at Adger's wharf, in this port. The steam-ship, taking'rin a cargo of cotton, was in full charge of a stevedore, selected by the charterer, and paid by the ship. She furnished the appliances for loading,-derrick, windlass, blocks, chains, rope slings, and the steam for the winch. The
