Leo v. McCollum

THOMAS, District Judge. Tbe libelant’s canal boat, laden with 334 tons of soft coal, reached Newtown creek, and made fast to tbe respondents’ wbarf for tbe purposes of discharge, with tbe assistance of the agents of the servants of tbe respondents. Tbe tide was at tbe time rising, furnishing sufficient watt.r for a safe berth. About 2 o’clock in tbe morning of tbe following day, upon tbe going out of the tide, tbe boat grounded upon certain obstructions extending out to and under tbe bow and stern of tbe vessel,, whereby she listed so as to permit tbe water to come over her deck; and for tbe injury received upon her filling and sinking from such 'cause this libel was filed. It appears by a preponderance of evidence that tbe master of tbe canal boat was notified that there was a projection, and be was directed to breast his boat off from tbe dock some three feet from tbe face thereof. Tbe respondents bad been painstaking to remove this obstruction, but had been unable to effect its entire removal. They bad fastened a breasting plank to tbe dock, so that tbe outer end could be placed against the vessel for tbe purpose of bolding it away from tbe dock, and such breasting plank, if used, would have held tbe vessel the distance of at least three feet from the dock. Tbe master neither used this plank nor did be breast bis boat off, but left it close alongside, and went to sleep till tbe water came into his boat, and then there was not time for securing her against the accident which happened. The weight of evidence shows that be was notified; that be did not employ tbe means' of safety furnished, or any means, to protect his vessel; and.be was culpable in that regard. But it is urged that tbe evidence shows that the obstruction extended further than three feet forward and aft of the canal boat,- and that, if be bad availed himself of tbe informatio given him, bis vessel would have taken bottom, and tbe injury woub have resulted. That is a speculation, unsupported by tbe facts Tbe evidence shows that vessels of much greater draft are custo: arily discharged at such dock without injury, and tbe inference i that tbe same good fortune would have attended this vessel hat [743] the master done his duty in 'the particulars above suggested. The considerations against the libelant preponderate, and the libel must be dismissed, with costs.