Reilly v. The E. Heipershausen

TÍRÜWX. District Judge. The libelants are tlie owners of the canal boat Thomas Flack. About 9:30 P. M. of June 10. 1892,-the canal boat was the outer boat on the port side of the ninth and last, rior in a flotilla of canal boats going up the Forth river with the Rood tide, in tow of (lie nig lleipersliausen, on a hawser of about. 90 fathoms. The libelants' boat, with some others, had been put into till' tow at Hoboken, and tlie tug was beading up river and a little off from tlie slum', going up about 400 feet, off Castle point. The white light of the Richmond was then observed by the pilot, about half a mile .above him in the river, and apparently about, in the same line of tlie channel way. The lug and her helper, the ITaviland, put their wheels hard a-i>ort or nearly so and hauled to starboard, which caused the tow to head somewhat: across the river. About: abreast of the Richmond on the Few York side were some war vessels, which, it Is said, compelled the tug, when .she came near them, to head up river, which she then did, passing about 50 feet from tlie nearest. The result was that the libelants’ boat [620] ran upon the anchor chain of the Richmond and was thereby knocked out of the tow and soon after sunk. The above libel is to recover the damages. The principal controversy in the case relates to the position in which the Richmond was anchored. The anchorage ground prescribed by the secretary of the treasury directs vessels in that region to anchor west of a line drawn from Castle point to Hull’s ferry. By the tug it is claimed that the Richmond was several hundred feet 1o the eastward of that line; while the Richmond contends that she was properly anchored to the westward of it. The weight of testimony is that the Richmond was anchored somewhat to the eastward of the prescribed line. The means employed for locating the Richmond’s proper place by the tug that towed her there, viz. by bearings off the port bow and starboard quarter, were devoid of accuracy and were naturally deceptive; and the method employed by the master would give but a rough approximation. The method of the witnesses for the Heiper-shausen, viz. by putting their tugs in the range of the two points, was much more exact, and was sufficient to leave no doubt that the Richmond was somewhat to the eastward of the prescribed line; though the distance of the Richmond to the eastward may have been considerably overestimated. The testimony of the diver who located the wreck is, doubtless, the most exact of all; and he testifies that the wreck as it lay sunk was from 40 to 50 feet to the eastward of the prescribed line. The flood tide at the stage of tide when the canal boat sank, sets somewhat towards the westerly shore, and must have carried the canal boat with it as the boat went down. There is doubt upon the evidence just where the boat sank in reference to the Richmond; but as the Richmond must, also, have swung some to the westward by an angle of one or two points, I have no doubt upon all the evidence that her anchor was probably dropped 50 or 100 feet to the eastward of the prescribed anchorage ground. There is no doubt that this breach of the regulation contributed to the collision. The steamer had taken her position about 4 o’clock in the afternoon of the same day, and was not known to the pilot of the tow. Her position rendered it somewhat difficult to avoid the swing of long tows going up with the flood, or coming-down with the ebb. "While the encroachment by the steamer on the navigable space was not great, — probably not above 100 feet,— I have no right to disregard even this encroachment as immaterial. Had sire been in the proper place, the collision would riot have occurred. Unless adherence to the official line be enforced, there is no other line that can be adopted, without introducing far greater uncertainty, and consequent injustice. The evidence, however, further shows that the tug cannot be wholly absolved from blame, in not making use of the means at her command to avoid the danger that was apparent. According to her own pilot’s testimony, the faulty position of the Richmond was seen half a mile below, and she was judged by the pilot to be even much further to the eastward of the prescribed line than she really [621] was. The presence of the vessels on the Xe w York side was also equally visible, and the set of the flood tide to the westward at that stage of it was also known; and these circumstances increased the difficulty of taking so long a tow through circumscribed limits. The entire length of the flotilla, including the hawser and the tug, was between 1,(500 and 1,700 feet. The Heipershausen had a helper, the Hariland, alongside. She? ivas subject to the orders of the Heipershausen. .11 is a very common thing, nnder such conditions, to detach the helper and send her to the stern of such a long tow to push it over and keep it out of danger. When the tag Pocahontas with her tow came down with the ebb tide and noticed the position of the Richmond, the helper tug, of her own motion and without the orders of the master and the pilot, perceiving the necessity, remained by the stern of the tow, instead of going forward as she intended, and by shoving off, avoided a collision which would otherwise have ensued. The same thing was done in going up. Although the neglect to take this precaution on the part of the Heipershausen was to some extent, no doubt, an error of judgment, and much less blamable than the fault of the Richmond in anchoring beyond the prescribed limits, still the policy of the law, which, to prevent the destruction of the property and life of innocent parties, enforces careful navigation and the avoidance of risks by the use of all reasonable means to avert collision, does not permit the acquittal of the Heipershausen in this case; because the circumstances as seen and recognized indicated danger, and her pilot had no right to omit the use of any of the customary precautions which were available to him to make sure of averting this danger. Both must, therefore, be held liable, and the libelant is entitled to the usual decree against both, with costs.