Frost v. The A. M. Ball, 43 F. 170

Frost v. The A. M. Ball

43 F. 170 | E.D.N.Y | 1890

Benedict, J.

This is an action to recover damages of the tug A. M. Ball for setting the schooner Ellen Eliza adrift in the East river. The schooner was sailing up the East river to College Point, heavily loaded with brick. When somewhere below the bridge, she was hailed by the tug A. M. Ball to know if she wanted a tow. The captain of the schooner told the master of the tug that the schooner was bound to College Point, and offered to give him four dollars to tow her to that place. The master of the tug accepted the offer, and taking the schooner’s line, began to tow the schooner. It appears that the master of the tug, through carelessness, had supposed .that the master of the schooner had said she was bound to Hunter’s Point; and, on his deck-hand calling his attention to his mistake, he at once inquired of the master of the schooner whether he was bound to Hunter’s Point or College Boint, and on being informed that she was bound to College Point, told the master of the schooner that he could not tow him to College Point for four dollars. Shortly afterwards the schooner’s line was cast off from the tug, and the tug went off in pursuit of other business. At the time when the schooner’s line was cast off by the tug, she was above the bridge, and about off Jackson street. Her sails were down, and a strong breeze was blowing off the New York shore. The schooner at once endeavored to get up her sails; but, while getting up thé sails, she was carried by the wind and tide across the river; and thus, before she could gather way, she brought up on the Brooklyn side, whereby she was considerably damaged.

The evidence satisfies me that the master of the tug did not take.hold of the schooner with the intention to tow her to College Point, but under the mistaken idea that the schooner v^as bound to Hunter’s Point. This mistake was the fault of the master orthe tug; for no mistake was made *171by the captain of the schooner, and the tag’s dock-hand understood College Point to be given as the schooner’s destination. But, although it is evident that the master of the tug never agreed to tow the schooner to College Point, the fact remains that he took the schooner in charge, and towod her a considerable distance to a place where, in the then wind, she could not safely be cast off with her sails down. There is testimony from the tug that, when the tug cast the schooner’s line off, her sails were up; but the clear weight of the evidence is that they were down, and the attempt of the tug to show the contrary only renders it more plain that it was a violation of a duty owing by the tug to the schooner, under the circumstances, to give notice of her intention to cast off the line, and to give reasonable time for getting up sail, before easting the schooner adrift. This she did not do, and this failure of duty renders her liable for the consequences of her act.

It has been contended in behalf of the tug that the immediate cause of the damage to the schooner was the fault of the schooner in omitting to east anchor. But I do not think the tug can be absolved in that way. If to cast anchor would have been a proper maneuver on the part of the schooner when she was set adrift, it was also a proper course to endeavor to got up sail. As it appears to me, it was entirely reasonable for the schooner to attempt to get out of the predicament in which she had been placed by the tug by means of her sails, instead of coming to anchor in the middle of the river; but, at the most, it was an error of judgment which cannot be charged to the schooner as a fault conducing to the subsequent accident. The solo fault was that of the tug in neglecting the duty owing to the schooner at the time when the master of the tug discovered that he had blundered in supposing that the schooner was bound to Hunter’s Point. The libelant must have a decree, with an order of reference.