58 F. 607 | S.D.N.Y. | 1893
The collision in the above case occurred as the Republic was entering her slip on the Brooklyn side. The libelant’s canal boat hung by a short line of five or ten feet from the stern of the Randolph, the outer of four boats on the starboard side of the tug Jackson, which lay at the end of the pier that formed the upper side of the ferry slip. The Jackson and her tow were heading up against the ebb tide, until another boat could he taken on by the tug from the slip above. The northwest wind blew the libelant’s boat around into the ferry slip; and at the time of the entrance of the Republic, as the weight of testimony shows, the libelant’s boat had swung round nearly alongside the ferry rack. In that situation it was impossible for a ferryboat to reach the bridge landing in the upper slip without hitting the libelant’s boat, and three of her planks were thus broken in. The above libel was
Tbe pilot of tbe ferryboat says .that after bringing bis ferryboat to a stop a little way out in tbe stream, be started up again, when, tbe libelant’s boat was tailing nearly straight down river, across tbe slip, so that be thought be could get in astern of her, and that the-latter swung in more, through the backing of tbe Jackson after be had started up, and after tbe ferryboat bad got into such a position that be could not help going forward without tbe risk of greater damage to her by stopping. Tbe weight of evidence, however, shows that at tbe time when tbe ferryboat started up to go into tbe slip, the libelant’s boat was not in tbe position stated by her pilot, and that entrance could not be reasonably expected without collision ; and that tbe libelant’s boat was a dangerous obstruction.
Under such circumstances, both the tug and tbe ferryboat are to blame. Tbe tug is to blame for voluntarily allowing tbe libelant’s boat to obstruct tbe entrance of the ferry slip. Though tbe tug bad proper business at tbe Washington street pier, in order to take on another boat, it was not necessary that she should let tbe libelant’s boat swing from tbe end of tbe other boats alongside; and under the state statute, and tbe city ordinances, enacted thereunder, she was bound not to cause any such obstruction as was in her power to avoid by other methods of towing.
The ordinances forbidding such obstructions are of very long standing. See Consolidation Act 1882, c. 410, §§ 85, 86, subd. 35. Judge Betts, in tbe case of Tbe Belief, Olcott, 109, which was decided in .this court nearly 50 years ago, says that “tbe city government, which possesses full power over the subject, by its ordinances, interdicts all obstructions to tbe free course of ferryboats.” See Rev. Ord. 1866, p. 293; The John S. Darcy, 29 Fed. Rep. 644, 647; The South Brooklyn, 50 Fed. Rep. 588; The Express, 1 C. C. A. 431, 49 Fed. Rep. 764.
I should1 feel bound to bold the Republic free from fault, if at tbe time when she started there was apparently a reasonable space for her to enter the slip without damaging libelant’s boat. But tbe weight of evidence precludes that view; it shows, also, that tbe ferryboat bad waited outside only a very short time, if at all; and that not more than a couple of minutes longer were required for tbe Jackson to get out of tbe way. Tbe Jackson’s work of picking up tbe other boat in tbe slip could have been easily seen by tbe pilot of tbe Republic, — if, in fact, it was not seen. Under such circumstances, if it be true that tbe Republic could not, without real danger of accident, make tbe lower slip instead of tbe upper one, she ought to have waited outside a few moments longer, and to have sought relief by tbe enforcement of tbe penalties against tbe Jackson, rather than by inflicting damage upon tbe libelant’s boat, which was in no way responsible for tbe obstruction. I cannot distinguish tbe case in principle from that of The Baltic, 2 Ben. 452, in which Mr. Justice Blatcbford held both vessels in - fault. The Roslyn, 22 Fed. Rep. 687; The Fanwood, 28 Fed. Rep. 373, affirmed on appeal.
The libelant is entitled to a decree against both defendants.
