REPOnTEB,
vol. 50.
THE KQMUX.
; THE DON JUAN.
Low !
tl.
T:HE
KOMUK AND THE DON JUAN.
(Dfstrict Oourt< B.D. NuwYork. May 7,1892.)
The tug D. r. backed out of. a slip without presence.or Biinals the tug K.· awroaching near., The K. recl>glllze? the risk of but not reverse. Ht!ld, that the K. in voluntarily gomg near the piers, had no priority in the right of way the D.;J.,.though on the D. ... atarboard hand. and both were held forneghgent navigal;ion. till months·.costs dl!\allowed.
,SAJOI-NOTIOB 0' CLADI__LAQllEB. . On a sllgbtcollision, aM i10 notice of claim or of survey until six warde, and after a S88S01,)'8 running of tbeboat and without repair,
months afterlibel not illed
In Libel by Mortimer E. Law against the tug Komuk and the tug D\>n Juan for collision. Decree for libelant against both vessels. ' Hyln.ndc!c for libelant. Chrytmter·fl Mosher, for the Komuk. Wilcox, c!c Green, for the Don Juan. BROWN, Pistrict Judge. At about 5:40 P. :M. on March 28, 1891, as the tug K<;>D1Qk was going up the East river in the flood tide with two canalboats in tow on her port side, the libelant's boat being the outer of putting them in a tow to be. made up off port boat, fOr pier 9, the boatwa13 run into, off the slip between piers 7 and 8, East riveri:by,tbe tug Don Juan, which was backing out of the slip by,which it is alleged two planks oOhe libelant's with a boat were broken. The libel was not filed untll December, 9,1891. No notice of survey was giv-en until six montb,s. after the ,accident, nor any claim for damages made.. All: the witnesses from the Don Juan testify that they had .;10 o£811Y collision at all, and have no recollection of the alleged occurrence. The witnesses from the KOtnuk,however, examined for the libelant, testify to the collision, and identify the Don Juan as the ,bqat that backed into the. tow. 'The Komuk had taken the two (lanaI boats. from the, slip below, betweEfD piers 6 and 7 I and proceeded up tbeEast river about or 350 feet Only from the ends of the-piers. .Her, that. h4:l' did. not. see the Don·.Juan coming out of the slip until she. was near .its mouth an<1about 250 feet above him; that he gave her a signal of one whlstle, got no answer, then stopped his engine, repeated the signal, and hailed the Don Juan's pilot, who gave him no response but kept on backing. This proves negligence in the Don Juan.
TlIE KOMUK.
619
Boats navigating near the mouths of slips have no priority as respects the right of way. There is at leas.t an equal right in outgoing boats to come out without obstruction from such navigation. If tugs with tows to be taken a short distance, as in this case, may be justified in going near the shore where the Komuk went, they still have no superior right to tugs coming out of their slips; and they are bound to go at sucb a moderate speed, and with such special caution, as will not endanger either their own tows or other boats. The Edgar F. Lttckenbach, 8 U. S. App. 9; 50 Fed. Rep. 129. The evidence of the pilot of the Komuk seems to me to show clearly that he recognized the danger of collision when he saw the Don Juan backing out of her slip, and that the Don Juan neither heeded nor replied to his first signal, and did not hold up. It was the Komuk's duty under rule 21 to reverse at once. Had she done so, there would have been no collision, if she was going at moderate speed before; or if any collision had followed, it would not have been the libelant's boat that would have sutlered. I must, therefore, hold both boats liable. The damage in this case was slight. The collision must have been slight also. No report of it was made to the supervising inspectors, nor to the Don Juan's employers, as would have been the duty of the pilot of the tug, had he been aware of any injurious collision; and I am inclined to accept, therefore, their testimony that they knew nothing of any collision damage. If aware of any contact of the boats at the time, it probably passed [rom memory on the supposition that no harm had been done. No sufficient explanation is given by the libelant of the iong delay in presenting the claim, or in giving notice of the survey. nearly It whole season; and from the libel it apThe boat was used pears that no repah of t':1e injury up to December had been made. Such unexplained delay is unreasonable, and is prejudicial to a fair opportuagainst intervening dangers, or injuries nity for defense, or for p... of which the defendants can have no knowledge. To discourage such laches, I must withhold costs. Decree for the libelant against both vessels, but without costs.
,,2Q
J'EDERALREPORTER,
THE AMOS C. BARSTOW. THE JAMES A. GARFIELD. MCCALDIN !I. THE AMOS C. BARSTOW.
ROBIN tI. THE JAMES A. GARFIELD AND THE AMOS
C.
BARSTOW.
In re
MCCALDIN.
W1Btriet ,
oourt"S. D. New Yor1c.
May 18,1892.)
1.' :COUJISIOl!t-STEAM VESSELll-ATTEMPT TO CROSS Bows-RECKLESll NAVIGATION.
The tug G. undertook witha'llignal of two whistles to crotls the bows of the la.r:re llteamer B., off pier 3, Ea!'lt river. when the steamer was only 400 feet dis. , · tiw-t, and a strong current was setting the tug towards her, and the position of the , Steamer was such that the Pilot of the tug could not judge with any accuracy of ,tb,e steamer's speed. Within 30. seconds collision occurred, the G. was sunk, and .two'men drowned. Held, th8.t the G. WBS in fault for reckless naVigation, though the steamer, in extremis, had answered with two whistles. . ,Ttie B. 'rounded the Battery, and entered the East river 600 or 700 feet from the end:sof the piersl at a speed of ,teli knots through the water, and at least 7 knots a8'lI.{nst the tide, and collided with and sank a tug off pier S. The vessels were not 'seen' by each other until only 400 feet apart. Held, that the B. was in fault for going at such high speed so near the p,iers, in violation of the state statute, which reqUired .her to go "as near mid-river as possible, .. and that the disregard of the stat('" 'ute Was ,a material and proximate cause of $e oollision. BTATE STATUTE-PROXIMATE CAUSE·
j;j, Ii4l11:Jho;rEAisT RIVER NAVIGATION-'-ROUNDING THE BATTERy-EXCESSIVE BPEED-
In Admiralty. Libels for collision,and for personal injuries caused ther.eby. Petition to limit liability. Caipenter & M08her, for petitioner and the James A. Garfield. Gdodtich, Deady & Goodrich, for Henry Robin. Peckman & Diwn, for the Amos C. Barstow· ·::,l}RQWN, District Judge. The above libels grew out of a collision between the tug James A. Garfield and the propeller Amos C. Barstow, which happened a little after 3 o'clock in the altemoon of October 17, 1890, off pier 3, East river. The Garfield had started from outside of four boats moored at the end of pier 4, in the strength of the ebb tide, to carry the libelant Robin and another passenger across the East, river to Prentiss' Stores, Brooklyn. When headed upon her course and about 275 feet off from the end of pier 4, seeing the propeller Barstow off the South Ferry slip coming up the East river, the Garfield gave her a signal of two whistles, indicating that she wished to go ahead of the propeller. The propeller was then not more than 400 feet below the Garfield and from 300 to 400 feet further than the Garfield from the New York shore, and heading up parallel therewith. The Barstow shortly before had given a signal of two whistles to an Annex ferryboat, which was about off pier 4, coming down r,iver from 300 to 400 feet outside of the Barstow. Getting no answer from the ferryboat, the Barstow was about to repeat her signal when the signal of the Garfield; was heard. This was the first that the Barstow had noticed of the Garfield. She immediately