686
FEDERAL REPORTER,
vol. 59.
shipowner to the value of his interest in the ship and the pend-' ing freight,] or any other statute defining the liability of vessels." For although, I do not perceive how section 4283 would in strict· ness be "modified or repealed" by either the broad or the more limited construction of section 3, the saving clause being as respects section 4283 apparently superfluous; still,' there would be less reason for the carefUl preservatiollof section 4283 if congress had intended tusweep away nine-tenths of the liabilities to which it is applicable. , There can be no doubt that by section 3 the act intended to absolve the vessel 'and owner'from the claims of the cargo on board arising out of faults of navigation, under the conditions stated. Its plain language requires, at least that much. The sixth section is, not, I think, repugnant to the third; because section 4283 does' not at all, define, and was not intended to define, the conditiom! under which a legal claim arises against the shipowner for any damage or loss therein referred to. It only provides, in effect, that whenever legal claims do arise against him for loss Or damage, his liability shall not exceed the value of the ship and freight. To enlarge or to diminish by statute the bases in which legal claims for damage shall be held. to arise, is' not, therefore, "to modify or repeal" section 4283. The fact that the :to Monette may not be liable for the damage to her own cargo, partly through her navigation, does not affect her rightto recover against the Viola for that damage; the Monette remains bailee of the cargo, and responsible as such for its proper care and delivery. ' , A similar oral ruling upon the construction of this statute has been made by Judge Carpenter in the district of Rhode Island. upon the hearing of exceptions to the libel. Decree accordingly. THE DOROTHY. DEVERMANN & &. THE DOROTHY. December 26, 1893.) (DIstrict Court, S. D. New York.
CoLLISION-EAST RrvER-CROWDING-STATE STATUTE.
The steamboat H. was going up the East river, and was overtaking a ferryboat. On the H.'s port hand lay, practically stationary, a carfloat, which a tug had hauled out of a, slip preparatory to taking it &ongside. The H., in passing between the float and the ferryboat at a distance of some 50 feet from the ferryboat, and less from the float, collided with the latter. Held, that the H. was in fault in needlessly attempting to go between the other vessels, in violation of the state stat· ute whichprohibitB steamboats from passing each other nearer than 2(} yardli
In Admiralty. Libel by William Devermann against the steam tug Dorothy for collision. Libel dismissed. Henry D. Hotchkiss and Mr. Middlebrook, for libelants. 8tewart& Macklin, for claimants.
THE DOROTHY.
637
'.BROWN, District Judge. On the 9th of May, 1893, at about 5:15 P. M., as the side-wheel passenger steamer Havana was going up the East river in the beginning of the ebb tide, her port side, just forware of the paddle wheel, came in collision with the starboard cor· ner of a railroad float, off pier 41, which the tug Dorothy was taking alongside for the purpose of towing up the Harlem river. The Havana suffered some damages, for which the above libel was filed. The Dorothy had shortly before taken the railroad float, laden with cars, from the slip between piers 40 and 41. The weight of testimony is that l;lhe pulled the float out by a short hawser beyond the end of the piers, and headed hetllp into slack water, abreast of pier 41, pointing nearly straight up river; that the Dorothy had cast off her hawser, and was moving down on the New York side of the float, at a distance variously estimated at from 75 to 300 feet off pier 41, but that she had not yet fully made fast to the float, and was not in condition to commence towing at the time of the collision. The Havana had left passengers at Peck slip, and had thence passed under the bridge, about 150 feet from the New York pier, and wall overtaking the Alaska, a Roosevelt ferryboat, going up the river on the Havana's starboard side. The pilot· and master of the Havana testifies that as he passed Catharine ferry, he saw the borothy on the port side of the float; that she came straight out of the slip, turned down, and made a complete circle in the river flO as to head up; that he at first intended togo oli the New York side of her, but, seeing her turn in towards the New York shore, and also seeing two small sloops there, he concluded to go to starboard; that as he approached nearer to the float he saw that she had become still in the water; that he gave her two signals of one whistle, indicating that he would go to starboard, to which he got no answer; and that the collision waa caused by the act of the tug in shoving the float's bow out into the river. This account of the navigation of the Dorothy is in such conflict with the statement of the Dorothy's witnesses that I must re- . gard it as mistaken, and the result of some confusion. It is improbable in itself, and could not possibly have been accomplished in the short time occupied by the Havana in going at the rate of 10 or 12 knots ali. hour from the bridge up to pier 41, viz. in about two minute8. The Dorothy's witnesses show that the float was in the edge of the eddy tide, very nearly still, at the time of the collision, and for a few minutes before. They state that the Havana came very near to the starboard quarter of the stern of the float; and Mr. Devermann, of the Havana, gives the final estimate of a distance sufficient to drive a team of horses between them. This agrees well with the estimate of the man on the umbrella of the float, though the master of the Havana calls the distance 30 or 40 feet. I am satisfied that there was no shoving of the float's bows by the Dorothy out into the stream. It is contradicted by her witnessesr and there are no circumstances to indicate that there was any need of such a maneuver before she made fully fast. She was in the act of getting made fast in order to take the float up the Harlem river,
FEDERAL,aE,pORTER., ,vol.
59.
a{ the !t;loat was one, an(l a favorable one ,not at while so heading, in the boat .was movingaltttle, aIJd the b.ow possibly Some motion in the water is to be ex· pectell, aJ;l9W: The floatw.as! takenfrpm the usual slip of and.the pilot of the Havana knew the usages of those' boats in making up their tows at that place. The real fawt was the fault of tlle Havana in the undertaking to pass atsuc;h a. speed, amid more or less shifting waters,in the narrow space ,between the Alaska and the float. A state statute prohibits a steaIller from passing another steamer nearer than 20 yards. The Alaska was estimated by the master to be 40 or 50 feet on the starboard side,. and tlJe available space on the port side of the Havana was evidently very much less. ,There was abundant room for the Havana had she chosen to keep astern of the Alaska until she :float, or had she chosen to go to starboard of the had. passed Alaska in mid river. The unnecessary attempt to go between the Alaska and thetloat, which was practically stationary, though probably not entirely so, was at the Havana's risk. The Senator D. O. Ohase, 46 Fed. 874; The City of Chester, 24 Fed. 91. The tug and float were not under way. The Dorothy was not required to make any response to ,the Havana's aignals, which were given to her only very shortly before collision; nor was there anything that the Dorothy could have done, in the short interval after the signals were given, that would have been of any use in avoiding collision. The libel mUl!1t therefore be with costs.
anll'th,e therefpr.: u
SCOTT T. OORNELL STEAMBOAT CO. (District Court, S.D. New York. January 22, 1894.) LIABILITY COLLISION-TuGS AND Tows - CANAL BOAT FILLED WITH WATER 01' TUGS-DUTY TO RAISE SUNKEN BOAT.
One of a large fiotilla of canal boats, while towing, began to take in water, until her decks were almost submerged. Although her condition was known to the tugs in .charge of the tow, the towage continued, at the request of the master of the canal boat, until she broke in two, thereby injuring libelant's canal bdat, F., which was astern of the broken bOat. It being found that the F. was leaklng, she was beached, and afterwards removed by respondent to fiats, where she remained until sold by her owner for a nominal sum.. Held, that it was Improper to continue towing, in a fiotilla, a boat filled with water, after her condition was known, and that such towing was at the risk of the tug owner, and not of the other boats of the tow; that, after the canal boat was temporarily beached, her owner was bound to take charge of her within a reasonable time, and was liable for any damage which may have accrued after the lapse of such reasonable time: that the tug .boat owner was liable for some of the damage to the canal boat's cargo; and that, Ulliess the value of the canal boat, as an old boat, was small, libelant was negligent in making no attempt to ralse or repa!r her.