New York, O. & W. Ry. Co. v. Cornell Steamboat Co.

MAYER, Circuit Judge. We think the sole question in the case is whether the navigator—i. e., the master in command of the Hercules—was justified in continuing across Haverstraw Bay. There is no question as to the propriety of starting out from Cornwall. It is not doubted that a tow proceeding down through the Highlands would be sheltered, and we think it plain that even though, on rounding Verplank’s Point into the upper entrance of Haverstraw Bay, there might be a wind and some rough water in the bay, it would not be possible [616] for a navigator to observe the actual conditions in the bay until he got into it. If, then, the weather was severe, the only safe course would be to continue ahead, holding the tow directly into the seas, for to attempt to turn the tow would bring it into the trough of the seas and expose it to great danger. Fanfare held the tow right into the wind and sea, and his navigation in that respect is free from criticism. Mr. Scarr, of the Weather Bureau, testified from the records ^alcen at New York and Rhinebeck that the storm was moving to the northward with a velocity of between 40 and 50 miles (51 in New York City at the highest), and that, in his opinion, the maximum wind was probably reached at Cornwall after noon, “somewhere between 2 and 3 p. m.”; that is, long after the tugs and tow left Cornwall. Between Cornwall and Haverstraw Bay there are not any stations at which storm warnings are displayed, and Walker and the other navigators did not know, nor was there anything to inform them, that a general storm was moving up from the south. It is clearly established that the wind increased somewhat after the tow got out into Haverstraw Bay. Without reciting further details, we think the evidence clearly establishes that the master and his associates had no reason to expect a storm of any consequence, and, indeed,,it may be questioned whether the storm in the vicinity of the locus in quo was in any sense serious, when it is noted that according to Scarr “the maximum wind at Rhinebeck was only 36 miles an hour, and after it occurred at 4:45 p. m. it eased off very quickly and became light.” The case is very much like The Victoria, 95 Fed. 184, 37 C. C. A. 40, both as to circumstances and locality, except that in the Victoria, the storm was more severe, and there were 28 boats in charge of three tugs. Curiously, also, Walker of the Hercules, had been captain of the Victoria, and he testified that the storm in the Victoria Case was much worse than that here concerned. The very full and analytical discussion in The Victoria, with its perfect understanding of that part of the Hudson, renders further description by us unnecessary; also, under the authority of that case, as well as in our independent view upon the facts in this case, it is plain that there was no duty on the part of the navigator to use the helper tug as a sort of scout or guardian to place the No. 22 in some other position. We are unable to find any ground upon which negligence can be imputed against the tugs. The decree is reversed, with costs, and the District Court instructed to dismiss the libel with costs.