Sherborne v. The N. & W. No. 4

BROWN, District Judge. The primary cause of tbe damage to. tbe libelant’s steamer Anerley was tbe drifting of tbe two bargee in tbe ice during tbe nigbt of February 22d, whereby tbe two came alongside tbe Anerley. No immediate damage was done. Tbe damage arose afterwards, upon tbe change- of tide from flood to ebb, when tbe relation of tbe three became somewhat complicated. upon swinging to tbe southward, and tbe Anerley bad a, plate stove in before tbe vessels got clear. I am satisfied that tbe two barges, after they got alongside tbe Anerley, made all reasonable efforts on their part, and did as well as they could, to gét clear, and to avoid any subsequent damage. If their original drifting upon tbe Anerley was without any fault on their part, the libel 'should be dismissed. The cáse differs, however, from others that are cited on behalf of tbe respondents, in that both the defendant vessels bad ample notice of tbe presence of an unusual quantity of ice in the bay, and of the consequent necessity of taking special precautions against the liability to be carried away by tbe ice; to say nothing about their place’ of anchoring, nearly in line with each other and with tbe Anerley. Both barges bad two anchors. Neither put put [795] m'ore tlian a single anchor, — except that the Merryman, ,a few minutes before she began to drag, when it was too late, dropped her second anchor, and soon drifted upon the hi. & W. No. 4, which did not drop her second anchor at all. To put out both anchors, would, have been but an ordinary precaution under the circumstances shown in the evidence. The danger from ice was not -sudden. or unexpected; but, as I have said, had been long.evident. , , . The neglect of reasonable precautions is not to be justified by citing instances of the negligence of other vessels. I do not find any case in which, under analogous circumstances, such accidents have been adjudged inevitable. On the contrary, where there are known indications of the danger of drifting from any extraordinary causes, whether from ice, storm, or position, ordinary, prudence requires that both anchors be let go; and the omission of this precaution is held to be at the vessel’s risk. The Sapphire, 11 Wall. 164, 170; The Energy, 10 Ben. 158; The John Tucker, 5 Ben. 366; The Eloina, 10 Ben. 458; The Lilian M. Vigus, 22 Fed. 747; The Mary Fraser, 26 Fed. 872. The English authorities are equally clear. The Despatch, 14 Moore, P. C. 83; The Egyptian, 1 Asp. (O. S.) 358; The Maggie Armstrong, 2 Asp. (O. S.) 218; The John Harley, Id. 290. It is further urged that the volume of ice was so great that two anchors would have made no difference. Very clear proof would be required to sustain a defense of that kind in behalf of , those whose negligence is proved. In the present case there is nothing amounting to proof at all; but only certain opinions of persons interested. On the other hand, the fact that the ice parted not long after the two barges had drifted alongside the Anerley, and the uncertainty whether the steamer, though, having out hut a single anchor, drifted at all, show, as it seems to me, that this defense is mere speculation. I must, therefore, hold both barges in fault for getting into a false position alongside the Anerley, which was the original cause of the subsequent damage. But I think the Anerley is also to blame for not taking means which were easily within her power, and which might safely have been employed, to avoid the subsequent damage. That there was danger to he apprehended from the swinging of the vessels to. the,southward on the change of tide from flood to ebb, is manifest. The barges were alive to this danger. The Anerley seems to have shown entire indifference to the result. There was an interval of between two and three hours during which the Anerley might have been removed out of the way or have slipped her cable. Her inaction would almost seem to justify the hypothesis that she supposed the barges alone were likely to suffer damage; and that she would leave them to get out of it as they could. The situation, however, plainly involved danger to them all; and it was the duty of the Anerley as much as of the barges, to do what was easily within her power during the considerable interval that elapsed before the change of tide, to avert the danger. The Sapphire, 11 Wall. 164. [796] Decree for the libelant for one-balf of tte damages against both defendants. (November 23, 1893.) A motion was afterwards made to divide tbe loss in tlie proportion of one-third to each vessel. BROWN, District Judge. It is unnecessary to consider at this time what should be done in cases like The Brothers, 2 Biss. 104, and The Peshtigo, 25 Fed. 488, where three vessels are adjudged in fault; because in this case, before any damage arose the two barges became entangled fast together and were practically one mass, and therefore, as respects the subsequent negligence of the steamer, and the resulting damage, they should be treated as one. They did what they could to get out of the way, and to avoid the plain danger from swinging on the turn of the tide. The steamship, as I find, was culpably indifferent and made no such effort. Under such circumstances she should pay half the damages. The two barges, as between themselves, divide the other half of the damages, because it was by the fault of each barge that they got into a false position and became entangled as one mass near the steamer, and thereby caused the danger. See The Express, 3 C. C. A. 342, 52 Fed. 890; The Ice King, 52 Fed. 894.