..· vol.
43.
steamer 10:hea'rthescbooner's'horn waswltnt of the, '!>I'Opflili from th,e steamerhave:convinced Die noth); fault in, the, matter of lookdut.. The next th/!-t the' wa.a 'going at an unlawful rate of speed. LdQ;rl:ot .&eebow it.cap.be 1Mi!' that this collision was caused by the speed of:.thesteamer. The Jog was dense. The proof is clear that the .schoOllel'W,as seen as soon as it Was possible to see her, and was not heard before'iSha was. sel::n.· '. When she was seen the distance then intervening between ,the two vessels was so short that it would have been steamer to av,:oidthe schooner even ,had the speed of the steamer been much less than it was. But going as the steamer was, and able to do what she did when the schooner was st::en, renders it quite clear that, if the presence of the schooner had been known somewhat sooner than it was, the steamer would have avoided the schooner. For some reason the schooner could not, by the horn she blew, make her presence known until she was seen by the steamer. Had she been somewhat sdoner, there would have able to make her been no collision. The presumption is that a mechanical horn would have I\ccomplished what the tlri horn used failed to do. The schooner did but a horn blown by not use a mechani?al horp to wake heradf so doing she violated the law, and this failure to comthe mouth. ply with the law must be, held,tobe a fault conducing to the collision thafensued.' The Pennsylvania, :1,.9 Wall. 135,136. That this omission 'Was the sole cause of the collision seems to me proved by the testimony. The libels must be disQj.is,sed"and with costs.
In
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THE 'NEW' BRUNSWICK. l
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(Dtmiet O,ourt"E. D.New York. July 24, 1800.) , . .
;., .. Suit was '6rougbt againstLa. to recover damages alleged to bave lleen caused1W aCMlaI.boat,wbile:lollodiilgllt a dodk, by tbeswell of' tbesteamer. It a leak and sank,. and that tl1e was dis,covered about the W-me the steamer passed. The capt&ln of the .canail.:hoat' atid1l:i'is wife teStified that they felt a jar on'tbe boat which the captain .. f.9.. tl,Js'Jwellof the men engaged in loading canaHoat .,. '4'4 not'nbtlce ally swell; lleUZ, tnat It was, not proveil. that the dll,mage sued for. 'N, :waa by tile: sWell ol-11he' ateamal\ and the libel should be dismissed:. ' 'I · ..;,,.J .i,.: S
SWBLLa.--EvIDBNOB. ,
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,to daniages. alleged to halVe i ,beencailsed to acanail-boat b)cthlt.J1llwellaIOJthe' steam.boat; New Brunswick. for. libelantS."" ·., 1
Reported by Edward G.oBenedict;
ol;th6 NewYark bar.
, . ''1'HE< NEW BRUNSWICK. '
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Hyland
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Zabriskie, for clll:imants·.
BENEDICT, J. This action is brought tOJ;'ecover for damages done to the canal-boat Herbert I. Davis, whi11:\ loading iron pipes at the pipe dock at a swel,l in, the alleged to have been caused by New Brunswick in passiiig. It is proved that the canal-boat Herbert 1. Davis, while taking in heavy iron pipes at the dock; sudpenly sprung a: leak, and sank before her master was able to get her to the dry dock. ".Itis also true that this leak was discovered :about the tiD'le the Brunswick passe(;l,the pipe dock on 'her way to New York, ,tut.His, not proved. that it wasa.swell. from the New Brunswick that caused the leak. The captain of the boat and his wife testify to a jar felt on the' boat, which ·the. caf}tliin at the time attributed to the swell of the :New' Brullswick,andheinferstbllt this jar arose from a swell, and .that this; swell ·.caused the' ooatto spring a leak. Several other witnesses engaged at the time in handling the pipes ahd it'js hardlyconceivllble thlit;'a: swell ,sufficient to drive ·this'il6wboat against the dock with :sut:;h force as tostilirt·off. the "boat's 1;>o1t<i>mcouldhave escaped the attention of all but the captaih ,and hi$ )Vife. Furthermore, the captain testifies thlit,when he jllJ;' he on hiskneea, talking to, the men in the .hold about 'putting ,in two ,more, pipes to .give the boat a proper trim,' while the evidentle .frow thexnen,makes it plain that the leak was discov6red .b.y them be,forethe:captain clime to the hatch, and that he was;tber.e .because ofa ,call frpm them that the. boat was leakimg. . Thiinhows that· the swell . that it? claimed to have been made by the New Bi'unswick,andto hav'e . oJthe leak, caine after the leak had; been discovered, atld .tl1e to attend to it. ' Moreover, thetestimonyfroDithe jsteam-,bQat lillto the depth;of water there, thewidtb oftbechannel,"and ;the PQurseof the bwt, is .sufficient to repel any inferenceJhat she .caused aRaUeged swell, in the absence ofany direct proof oNbe' faob') The opinion formed at the trial has been confirmed' by reading :a11the at t,be rendering this decision, and I am clear. that;the ,libel the. ground tbat it not proved,that'the ..damage I>qed. .for was caused by . ' , L.
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DDElUL REPORTER,
vol. 43.
THE TEBO V.
J ARLEN. 1 JARLEN.
(DIstrict Oourt, E. ADWRALTY-SALVA.Glll. . '
n:New York.
July 21, IS90.)
The bar.k J. haq passed through a storm, had lost some of her spars and was leaking. When off Barnegat, under sail, and undoubtedly able to s;{l to New York. without assistance, she was taken in tow· by a tug and brought to New York over a smooth sea, the service. occupying from 9;< A.. M. to 6 P. M., and involving no risk or extra labor to the tug. The bark and her cargo was worth $20,500; ·:the tug, $25,000. Helcl, that $4OO'waasufficient salvage.
In Admiralty. Action for salvage. GOQdrich, Deady & GOQdrich, for libelant. Rutler, StUlman & Hubbard, for claimants. BENEDICT ,J. This. is an action to recover for salvage service alleged ·to have been rendered by the tug B. S. Haviland to the·bark Jarlenon ,the 14th of September,1889. The service consisted in tOWing the bark -fronl Barnegat to New York in a smooth sea; the time occupying from ·;9!A. M;"to 6 P. M., and involviagno risk or extra labor on the part of .the.tug. The value of. the barkaIid her cargo was $20,500; the value .or the tugj. $25,000. The libelants desire a decree for ,25 per cent. of ,the value of the bark and cargo. The claimants claim that the value of the service rendered did not exceed $100,' but have tendered 8400, .andpaid the sum into court. This difference between the respect.ive parties arises out of the difference in their estimate of the danger in which the bark was when taken hold of by the tug. The evidence has satisfied me that the danger to which the bark was exposed was very slight. She had been in peril dnring a hurricane, had been leaking,and had lost,her foretop-gallant-mast and jibboom; but she had passed through her peril. When taken hold of by the tug, she was sailing along under maintop-gallant-sail, main-uppermainsail, maintop-mast-stay-sail, foresail, and jib. She was not leaking to any considerable,extent, and was undoubtedly able to sail to New York without assistance. The contention of the libelant that she had signals of distress flying, that the wind was blowing strong, and a dense fog prevailing, is not borne out by the evidence. Her cargo of lumber had shifted, and she had a li!lt, but not so great as to prevent her working without difficulty. The omission to call the American pilot, who was taken on board after the tug had hold of the bark, is commented on by the libelants. But the omission, in a case like this, tells as much against the libelant, upon whom is the burden of proof, as it does against the claimant. In my opinion the $400 tendered by the claimants was sufficient. The libelants may have a decree for $400, with costs up to the time of the tender. t
I1cported by Edward G. Benedict, Esq., of the New York bar.