'1020
J'EDlilBAL BlilPORTlilB,
vol 63.
TIlERI,OlIMOND. THE 1ll.HE'(PERSHAUSEN. RILEY et at T. THE RIOHMONDand THE E. HEIPERSHAUSEN et aL (CirCuit Court ,of Appeals, Second Circuit. September 26, 1894.) No.
110.
A tug going up the Hudson river with a tloo(} tide, at night, with a tow consisting of 9 tiers of canal boats, with 4 boats In most of the tiers, and making a flotilla about 1,600 feet'long, discovered a vessel half a mile ahead, lying at anchor outside the boundaries prescribed by the regulations of thel;lecretary 'of ,the treasUJ-7. ,TlI.,e tug and, her helper undertook to p.raw ,W ,the opJ>Q!llte side of the river, but the last tier of the tow was by the force of the tide betond the line of the tug, and libelants' boat, 'Which was In such tier, struck the anchored vessel, and was sunk. The anchor watch on the anchored vessel saw the flotilla approaching when some distance away, an,:!, if he l:\ad given his vessel chain, the tide would have carried her back and out of danger. He testified he attempted to let out the chain, bl.)t failed. HeM, that both the tug and anchored vessel were in fa.ult, and properly, condemned to pay libelants damages. 56, Fed. 619, affirmed.
AND ANCHORED VESSll:L-NEGLIGJIlNCE OF ANCHOR WATCHTUG AND HELPER.
Appea) from the District Court of the United States for the South' , Libel'i)y F. Riley and another against the steam tug E. Heipershausen and the steamship Richmond for collision. There was a decree for Jibelant against both veSlilels, 56 Fed. 619. The owners of the tug and steamship appeal. ,Affirmed. Owen, Gray & Sturges, for appellant the Richmond. Robert D. Benedict and Mr. Carpenter, for the Heipershausen. Alexander Cameron, for appellees. Before WALLAOE"LACOMim, and SHIPMAN, Circuit Judges.
,ern Diswct of New York.
WA.LLA.CE, Circuit Judge. The steamship Richmond and the steam tug Heipershausen were both adjudged in fault by the district court, and, condemned to pay the libelants damages fol' the injuries inflicted upon the canal boat 'l'homas Flood and her cargo by the collision ,between the steamship and the canal boat. Both the owners of the steamship and of the tug have appealed, and each appellant assigns as,error that the vessel of the other should have been found solely in fault by the district court. The collision took place about 9 o'clock in the evening of June 10, 1892, under the following circumstances: The Heipershausen started from the East river with a tow of canal boats bound for Albany. As she proceeded up the Hudson river, other canal boats were added to the flotilla, including the libelants' canal boat, which was taken from one of the piers at Hoboken. The flotilla then consisted of 9 tiers of canal boats, with 4 boats in most of the tiers, and the Heipershausen leading, with hawsers 550 feet long attached to the outside boats in the front tier, constituting a flotilla about 1,600 feet in length. The
THE RICHMOND.
1021
steam tug Haviland was acting as a helper to the Heipershausen, towing alongside of her, with a hawser fastened to one of the middle boats of the head tier. While the flotilla was proceeding along the westerly side of the river, parallel with and about 500 feet from the ends of the piers, the Heipershausen discovered the steamship Richmond about half a mile away, lying at anchor, and somewhat to the easterly of the course of the flotilla. The evening was clear, there was no wind, and the tide was flood. The Richmond had her regulation anchor light properly set and brightly burning, and a man on deck watching the anchor. She was anchored somewhat outside the boundaries prescribed by the regulations of the secretary of the treasury. These regulations, made pursuant to the act of congress of May 16, 1888, authorizing the secretary of the treasury to define and establish an anchorage ground for vessels, among other places in the Hudson river provide that vessels may anchor in the Hudson river to the westward of a line from Castle Point to Bull's ferry, and north of Fourteenth street, Hoboken ferry landing, but that in no case shall a vessel anchor. within 200 yards of the shore, or in such position as to impede the movements of a ferry, or to prevent ready access to and from the piers. Opposite and above the Richmond, on the easterly shore of the river, some vessels of the United States navy were lying at anchor, but there was a clear space of a quarter of a mile or over between the Richmond and the nearest of these vessels. Soon after discovering the Richmond, the tug and her helper put their helms hard a-port, and made for the opposite side of the river, carrying the flotilla on an oblique course across and up the river, at a speed of six or seven miles an hour. When the Heipershausen had come 'up to within a short distance of some of the naval vessels, the rear of the flotilla was below the Richmond, swinging by the force of the tide beyond the line of the course of the tug, and over towards the Richmond; and the libelants' canal boat, which was the port boat in the last tier, struck the anchor chain, and then the stem of the Richmond, and soon after she filled and sank with her cargo. The man acting as anchor watch upon the Richmond saw the flotilla approaching when it was a considerable distance away. A man upon one of the rear boats of the flotilla shouted to him to give the Richmond chain. If he had done this, the tide would have carried her back and out of danger. IIe testifies that he attempted to let out the chain, but did not succeed. As the boats struck, the mate of the Richmond came on deck, and immediately let out the Richmond's chain. With the strong tide then running, it is apparent that she would have readily swung back if the chain had been seasonably released. Upon these facts, we think it very clear that fault is to be imputed to both the Heipershausen and the Richmond. If the tug was free from negligence in all other respects, it suffices to condemn her that she undertook to navigate a flotilla in a part of the river where she was likely to meet numerous vessels. when she had so arranged and organized it that she could not, under the normal conditions of wind and tide, safely conduct it by a vessel lying at anchor, seen half a
FEDERAL REPORTER,
vol. 63.
obsthlction between or beyond,"an(J whenlhere which of a m,fie'W!deottl!b¢.i'ownstarboal'd'hap.d. It was berduty, gomg on a a 1iotfila over'alquarter of amite long, to provide some tows in ',case .it: should become necessary,inolil1erto afuid other:·vegSels, todeflect:materiall;y from a 'direct course.;'i',The' fact that she, could not execute safely such a maneuver as'she'a:ttem:pted dexponstrates,tliat h'er tow, as she had made it up,was'unwieldy, unmanageable, and a menace to the safety of other' vessels entitled to the use of the river. "'hen she under' took the she could have detached her helper, and sent it to the' rear of tlie flotilla,' to assist in keeping'the end of the tow in line. Uqderthe cil'cumstanceg, her omission to do this was inexcusable. tMfRichm:ond was iii fault, because she was occupying a of the regulations respecting the anchorage satisfled that, this fault was, under the circumstances, a eonti'ibutorycause of the collision. ,If, notwithstanding the fault,' of 'the Richmond, the Heipershausen ,()Quid have avoided the collisioll by exercising ordinarY' care, the Richmond ought not to becondettined. Under such circumstances, the fault of the Richmond WOllTd'riotbe aptoXimate cal1seof the loss. If, however, her fault in she was in fault in another respect, which suftiCe8'to (;hargeher with liability. It is the duty of a vessel brought' up ina frequented channel to maintama vigilant anchor watCh,it'eady to give her chain or sheer her clear of an approaching vessel. The Richmpnd was anchored at a place presumably inconvenient or to the Dl1vigation of other ,.vessels. It was a place,ll1so, in which long flotillas of boats in tow ,of tugs were ,frequently !passing in both directions. ,The anchor watch did not exercise reasonable ,igilance to avoid the collision. His explanati6nof his failuh:! to let out her chain is quite inadequate. There is no reason w'hythe Richmond should not have taken the chain, and we' are satisfied either that the man on watch did not attempt to let it out,ot' didl10t know how to do so. It is, patent that a competent and vigilant man might have released the chain in season, if not to have avoided a collision altogether, certainly to the consequences. have materillily We conclude that dIstrict court properly condemned both vessels, and that the decree should be affirmed, with interest and costlil.
'fmc J. J. DRISCOLL.
1023
A steamer rounding the Battery Into the East river coll1ded with a schooner In tow ot a tug on a hawser about 150 teet long. The tow waa going out with the ebb tide, and making slow progress. The tug saw the steamer and her course In season to have kept away more to the north side ot the channel, which she did not attempt to do until a few mlnutee before the collision. The steamer did not keep a proper watch on the tow and Its movements, though both were visible in season, and hence did not avoid the latter by porting, as she could easily have done. Held, that both were In fault. 58 Fed. 811, afilrmed.
Appeal from decree of district court, southern district of New York, holding the tug J. J. Driscoll and steamship Concho bOUi responsible for damages sustained by the schooner William Johnson .(in tow of the J. J. Drisooll on a hawser) from collision with the Concho, between Governor's Island and the Battery, March 1893. See 58 Fed. 811. Chas. M. Hough, for the J. J. Driscoll. ·Wilhelmus Mynderse, for the Concho. Chas. C. Burlingham, for appellees. Before WALLACE, LACOMBE, and SHIPMAN, Cil'cuit Judges. PER CURIAM. The questions presented are entirely questions of fact, and the evidence is extremely conflicting. Upon examination of the record we see no reason to reverse the finding of the district judge that the collision would not have happened had either the tug or the steamship taken "more timely and efficient measures to avoid each other." Decree of district court affirmed, with interest, and half costs to the Johnson against each steam vesseL Em> OJ' CASU IN VOL,
6lt
