Howell v. Delaware, L. & W. R. Co.

HOUGH, Circuit Judge (after stating the facts as above). Whether the Chapin so protruded into the fairway as to proximately cause collision with the Scotia while the latter was exercising reasonable care is matter, of fact decided adversly to the Chapin by the trial judge, and after reviewing the record we find his conclusions supported by evidence, which it would serve no useful purpose to recite. It is, however, here urged as. matter of law that, since the Lex and Dunellen were also moored af the pier end in violation of New York Charter (Laws 1901, c. 466) § 879 (set forth at length in The Allemania, 231 Fed. 942, 146 C. C. A. 138), they must be as responsible as the Chapin. Our views of this local harbor regulation are, we think, plainly stated in The New York Central No. 18, 257 Fed. 405,-C. C. A.-, and The Daniel McAllister, 258 Fed. 549,- C. C. A.-. It was there held, and correctly said below, that section 879 can only he invoked by vessels of the class therein enumerated, viz. those “entering or leaving” a slip adjacent to the pier end at which lie the offending craft. If, therefore, in this case the Scotia had been injured, she would have made out a prima facie case against the Chapin under the act, by showing where that barge was moored; yet it remains- possible for vessels at the pier end to affirmatively show, either that their violation of statute neither caused nor contributed to disaster, or that the “entering or leaving” vessel herself contributed thereto. [1] But this case — with the Scotia exonerated — is between vessels which were all moored in the same illegal manner; between themselves none can point- to the statute, and insist that the others are responsible to her by reason of the statute. [2] The charter regulation does not, of course, take away, nor render obsolete, any other rule of navigation or maritime conduct, whether founded on the Inland Rules or upon accepted general custom as (usually) announced in judicial decisions; it is additional thereto. The Chapin is held solely liable here, not because she lay with other vessels at the end of a pier, but because she incumbered and obstructed the channel in a way deemed faulty without any reference to the pier end statute. Decree affirmed, with costs to each appellee.