THE ClTY OF AI,EXANDRIA.
427
in, yet it is probable that. it would have been extinguished after greater loss on the cargo and greater injury to the vessel. In this case I think the sum of $250 is a proper allowance for sa]vage,for the firemen. It is to be divided as follows: The master $2.5; the engineer $25; the assistant engineer $20; the deck-hand $10; the cook $10; and the rest to go to the owners of the tug. , I find' that the defendant shall pay the cost, and tbat the sum named shall be divided and apportioned between the cargo and the vessel in this proportion; that the cargo shall pay two-thirds, and the vessel onethird. I know that this is not in accordance with the proven value of the property saved, but I also feel that it is a fair presumption that this fire was occasioned by the negligence of the crew of the vessel, and for that reason it is held by the court that they shall pay a larger shl:\re than they would be held liable to pay if it was adjusted on the basis of $2,800, -for which the vessel was sold. I would 8.1so include the freight in this assessment if there had been any allegations or proof which would enable me to do so. Let the decree be framed accordingly.
THE DEEP
CITy
OF ALEXANDRIA. 1
SEA IIYDRAULIC
DREDGU1G
Co.
'V. THE
CITY' OF
ALEXANDRIA.
(Didtrict Court, S.
n. New
York. June 17,1887.)
COLUSION-TuGAND Tow AND STEAM-SHIP-LIABILITY.
The rule in.8turgis v. B01!(!f', 24 How. 110, that the tug is alone responsible for damages upon a collision between her tow and other vessels, is applicable only when the tow is wholly under the charge and control of the tug.
2. SAME-FoG-SIGNALS-INSPECTOR'S RULES. It is gross negligence in a tug, when taking a tow in afog across the harbor of New York, in such manner that outgoing vessels are on her starboard hand, neither to blow fog-signals, nor to give the three blasts that indicate a tow, under the supervising inspector's rule 10. 8. SAME-DuTY OF Tow. Under like circumstances, it is negligence in the tow sufficient to charge her with fault, if, though fitted with a whistle, and having the general direction of the tug, she does not use her own whistle to indicate her position, nor giveahy directions to the tug. when it is observed that. the tug is silent.· Reasonable signals of danger are obligatory in all dangerous situations. 4. SAME-LENGTH OF HAWSER-FOG-CALM SEA-FAffi-WAY. In a fog, with a calm sea, a towing hawser 400 to 600 feet in length is unnecessarily long and dangerous in crossing a fair-way; and if the length of the hawser is under the control of the tow, and accident results, the tow will be held jointly in fault. '5. SAME-STRAM-SHIP AND TOW-SPEED-APPROACIIING FOG-BANx-APPORTIONMENT-STATRMENT OF CASE.
The tug f... was taking the dredge Q. from Gedney's channel to Sandy Hook, on a hawser 400 to 600 feet long. Both were ina bank of sea-fog; by Edward G. 13enedict, Esq., of the New York bar.
1 Reported
428
FEDERAL REPORTER.
In Admiralty. , .Geo. A. Bla«k, for A. Satter and R. D. Benedict, for claimant.
,BROWN"J.; On the ninth of September; 1886, at about 5:12 P. M., as the steamer City of Alexandria was going out to sea, by way of the Swash channel in the Lower bay, she came in collision with the libelant's dredge Queen, which had been employed by the government in dredging Gedney's channel. The Queen was then returning from work to lie up for the night at Sandy Hdbk, and was in tow of the steam-tug Argus, on a hawser from 406 to 600 feet long. The stem of the steamer ran into the port bow of the dredge, cutting at least half way through her, and causing her to sink almost instantly, t6 the libelant's alleged damage of.$85,000, to recover which this libel was filed. The place of collision is fixed, within a few hundred feet, by the situation of the wreck as afterwards determined, which was found to be about one-fifth of a mile to the westward of the junction of the Swash and main ship channel courses, as laid down upon the chart. The wind was very light from the south-east; the tide slack flood; the weather tolerably clear towards NewYork, but with a rather thick fog creeping in from sea. The fog ahead of the steamer so obscured both the tug and the dredge that they were not and could not be observed by her at a distance of more than 400 or 500 yards. The dredge started for Sandy Hook at precisely 5 P. M., and at the time of the collision the tug and dredge were proceeding on a course of west by south at the rate of about three and one-half or four knots, The City of Alexandria. in going down the lower pan,.of the Swash channel, had gone a little more to the westward than intended; so much so as to pass a few feet to the west of buoy , known as the" Palestine Buoy," where she sheered one point to starboard. About that time she heard two whistles given her by the tug, and was then first able to discern the tug, bearing nearly ahead and partly on her port bow, and estimated to be 400 or 500 yards off. She immediately replied with two whistles to the tug's signal, at the same time starboarded her helm, and soon after, seeing the hawser that ran astern of the Argus to the dredge, immediately put her helm hard a-port, and stopped and backed her engines, but too late to avoid collision.
THE CITY. DE' ALEXANDRIA.
429
The general cause of this collision was, doubtless, the fog iu the Lower bay. It so obscured the tug and tow, which formed altogether a line of some 700 or 800 feet, moving across the steamer's course, that the latter, upon the speed at which she was going, was not able to avoid the tow after it was discovered. But the fog was obvious to both. The steamer is chargeable with knowledge, not merely that vlJssels were liable to be coming in, but that this dredge, in tow of the tug, was also likely to be coming upon the very course upon which she was coming, on returning as usual from the daily work on which she had been long engaged. The tug and tow were equally chargeable with knowledge that they were running in a fog across the course of steamers going out to sea. Only very shortly before, two other steamers,-first the Trinidad, and next the City of Augusta,-at intervals ofa few minutes only apart, in going out through the Swash channel, had narrowly·escapedcollision, clearing the dredge by from 100 to 300 feet only. Upon these facts there seem to be very plain faults in all the three vessels. 1. The Argus, which for some reason has not been brought in' as, a party, was grosilly in fault, because, being bound to keep out of the way of vessels on her starboard hand, and having atow of a length that was dangerous in a fog insuoha situation, and moving somewhat RcrO.ss the course of outgoing steamers, she neither blew any fog-signals quired by the statutory rule, nor, more important still, did she blow the signal of "three distinct blasts in quick 1'luccession, repeated at intervals not exceeding one minute," to indicate that she had a tow, as requirl;Jd by subdivision 8 of the supervising inspector's rule 10. Rules of 1886, p. 170. Moreover she gave a signal of two whistles to the City of Alextmdria, thus telling her to go astern, without giving the three towing whistles to apprise her of the danger of going astern and across the line of the tow. These faults are so manifest and so important that it is unnecessary to refer to others on the part of the Argus. 2. The dredge must also be held in fault, because she was partly to blame for the mode of navigation adopted, and for the absence of all signals of danger. The tug was, in general, subject to the orders ofthe master of the (hedge. Orders were communicated between them by signals as to towing during work; and though, when being towed in at night, the details of navigation were doubtless left mainly to the tug, the latter was'still subject to the general orders of the master of the Queen. I think both were responsible, therefore, for the absence of proper 8i",nals upon the principles applied in the cases of The Oivilta, 103 U. S. 702j and The C. P. Raymond, 26 Fed. Rep. 281. The misconduct of the tug, in neither sounding fog whistles nor towing whistles, was .very plain. The situation and the course of the tug and tow were specially dangerous to outgoing vessels. The dredge had narrowly escaped collision shortly before. She had neither sails, motive power, nor rudder, and Qould do nothing, therefore, to avoid other vessels, which made her the more da,ngerousj butshe.had a steam-engine, provided with whil'ltle$, like the tug, by which her position in the fog could be indicated. The necessity of whistles was k;nown to her officers, .and the matter was
I
430
: .,FEDERAL REPORTER.
spoken of between them, but it was concluded to "let the tug do the whistling;" yet though the tug's omission to whistle was evident, and the danger great, she gave' no orders to the tug, and gave no whistles herself, as she might have d'one, to apprise other vessels' of her position. I'll the case of The Peshtigo, 25 Fed. Rep. 489, it was held that a tow thus enveloped in a fog ,should give notice of her position by whistles; and it was so held although the proper whistles were being sounded by the tug. Much strongeris this case against the Queen, because, knowing that the regulations were being violated by the omission of all fog whiatles, and that her situation and course were dangerous, to outgoing vessels,ahe took no measures to give notice to approaching vessels ofthe very great danger. While there is no statutenorregulation that in terms requires a tow thus situated to give such signals, there is none that forbids it; and every vessel is bound by the general maritime law, as is reeognizedby the provisions of article 24 of the new rules, to give such reasonable notice of obvious danger as the special circumstances may require, and such as are easily within her power to give. This principle is applied in a great variety of forms. The requirement that a sailing vessel shall shorten sail in.a. fog whAn going at considerable speed in waters where other vessels are to be expected, ('1'heJohn Hopkins, 13 Fed. Rep.1S5; The Rhode Islandj17 i Fed. Rep. 554, 557,559, and cases there cited; The Colorado, 91 U. S. 701,702,) and that some signal should be given at night to an overtaking vessel astern, (Th& Oder, 13 Fed. Rep. 272; The State ofAlabama, 17 Fed; Rep; 847,858,) may be cited as exThe rule applied in tile case of Sturgi8 v. Boyer, 24 How. 110, that the tug alone is responsible for the damages upon a collision between her tow and other vessels, is only where the tow is wholly in charge of the' tug, and under her control, as the Wisconsin was in' that case. When the tow is manned by her own officers and men, the duty of reasonable skill and care is imposed on them, upon the principles above referred to. "The exercise of reasonable skill and care," it is said in the case of The Margaret, 94 U. S. 494, is, in such a case, "incumbent on the tow." The Galileo,28 Fed. Rep. 469. Regard for the safety of life and property imperiled by collision does not permit the court in this case to overlook the plain neglect of ordinary precaution by the dredge to avoid obvious danger, by sounding her whistle to give notice of her position in this fog; or her neglectto give suitable orders to the tug,or , independel'ltsignals of her own, when the misconduct of the tug in omitting them maide such precaution the more imperatively necessary. Nor caul reg4trdthe tow as wholly free from fault in regard to the length of the haw'aer. I'll It calm sea, ·such as existed at that time, and in foggy weather, a hawser was used' much longer than, upon the evidence,! thiukwas necessary. great length of the hawser added 'much tothe:danger.Considering the longemploym of the dredge nt in this blill3inesa, the'officers of the dredge must be deemed familiar with the dangers: of: a. long hawser in a fog, and with the fact that a much shorter one was sufficient in calm weather. Imust hold the dredge, there-
THE CITY OF ALEXANDRIA.
4.31
fore, chargeable with fault, jointly with the tug, for starting with a hawser of such length. The evidence' indicates that with a shorter hawser the collision would have been avoided. 3. The City of AleXandria must be held in fault for not going at a "moderate speed II in a fog. There is some conflict as to the amount of fog that prevailed before reaching the tug and tow, and as to the disi tance northward to which the fog extended; but there can be no question tha,nhe tug and tow were in a pretty thick fog, since they could not be seen more than 300 or 400 yards off; and, when the tug WaS first made out, neither the' dredge nor the hawser could be seen. ThQugh the bay above the steamer ",as comparatively clear, the fog inthe region of the tug' and tow was plain. This alone was sufficient warning to the steamer to diminish her speed. That she was overtaking a faster vessel ahead of her, which had slowed down in consequence of the fog, was an additional notice to the City of Alexandria to' 'slow; Even if thIS were the case of.an abrupt, dense bank of fog, which, upon the testimony', is n9tpr09t¥>le, she had no, t9 ,run into the fog-bank at full She waaboimd to slow down because otherwise she cobld D9t cOplply the rule that reqp.ires her to be going at "moderate 'moment she is in it. Mars. Call. (2dEd.) 349; The ,MilAsp. 218.Computatioribased upon the time and distance run the steamer ,must :have'been going'at' the rate ofat least 11 ,or l 12 knots ., ,', She did not slow or reverse'utitilafter the tug was soon within 200 or y;ards,: can have 1;10 doubt, lipon the evidence, that she was then ill such a fog made full speed unjustifiable. The Nacoochee, 28 ,Fed. 'lJI-e $.tate,oj Alabama, 17, Fed., Rep. 847,852; The City {lJNeW 628. , There is some evJdence that would indicate that the first mate, who wa,s on the, lo9kout, ,was not specially observant at the moment steamer, first caI?e in sight But I do not think this possible part to the collision; nor can I reasidefrom the gen¢ral rule requiring moderate speed gard it in afog,that steamerdid not reverse immediately 011 seeing the tug. or, on' her llntil the hawser waspercei'ved. , The st(:.,amer hdl!, a right to 'count on the signals of a tow, if there was one.Snel,had no difficultyJIiavoidibg the tug, the only vessel at first indicated'to'her." Iholdher'liable·ior not having sooner sfoweddown, :So :as to be runnirlg at ciJ;llCiderate speed," as soon as she entered the fog, as I think s1.l,ewas required'by law to do. This would have avoided the the faults, of the tug and tow. Decree for, half th'e'ggstsdivided. .
':
432
THE GIGLIOtl. THE BRITANNIA.
(Diatrict Oourt, S. D. New York.
June 7, 1887.)
1.
CARRIER-DAMAGE TO CARGo-BILL OF LADING-" BREAKAGE OR LEAKAGE"LIABILITY.
The steam-ship B. delivered in New York certain cases of olive oil. Some were entirely empty, and some partly empty, on delivery. The bill of lading .exempted the carrier from responsibilityfQr "breakage or leakage." It appeared by the evidence that the leaks were caused by some persons tamperIng with the cases while in the carrier's custody. Held, that for such violence to the cases the carrier was responsible. The presumptions are against reasonable care on the. part of the ship wIlen such a cause of loss is proved.
Iil A,.dmiralty. ,..D.. for libelant. ,; 'faft .& Benedict, for claimants.
J:. The libelant claims for the injury and Io,ss susta,ined in the t:ransportation of someoliv\3 oil from Geri(?a to New'York, in Nov6mber, 1884.. There ,were.;1;9 wooden boxes or cases, containing each four hermetically sealed cans of Qil. . On delivery, some of the cans were whollyem,pty, some p,artly empty, and some of the boxes so ,soaked The bill of lading exempted the carwith oil as tq be r"ierfrom responsibility for "breakage or leakage." The defense would prevail, therefore, unless it 'a.ppeared that the loss arose through some on the ,part of the The burden want of care orsome of proving this is upon the libelant. The Vaderland, 18 Fed. Rep. 733, 739-741, and cases cited; The Invincible, 1 Low. Dec. 225; Richard$ v. Hansen, 1 Fed. Rep. 54; The Sabioncello, 7 Ben. 358. The libelant had long been accustomed to import such oil from the same region in Italy, and from the same, consignors. It was put up in the same manner as these cases, and no similar loss or injury had before The supplementary proof shows that the cases were shipped in goo<l condition. In the present case the evidence leaves no doubt ·thatthe leak was caused by some persons tampering with the cases for thEl,purpose of extracting oil, while the cases were in the carriElr's custoqy., and that the loss arose in part, probably, from the abstractl<m of oil, and in part from leakage, through nail holes made in the for the·purpose of oil. For such violence done to the cases, and to. the cans, the carrier There is nothing in the bill oflading that wccepts larceny; or such a cause of loss; and the presumptions are also against reasonable care on the part of the ship when such a cause of loss is proved. Decree for the libelant, but, Inasmuch as upon the original hearing of the cause the libelant's proofs were insufficient, the decree must be without costs to either party. lReported by Edward G. Benedict, Esq., of the New York bar.