86 F. 924 | 2d Cir. | 1898
This is an appeal from two decrees of the United States district court for the Southern district of New York holding the steam ferryboat Paunpeck and the steam-tug Andrew J. White mutually in fault for the damages caused by a collision between the Paunpeck and the schooner Ettie H. Lister, in tow of the White,
On April 24,, Í894, the ferryboat Paunpeck left her slip at the foot of Christopher street, New York, at 5:46 p. m., bound for the foot of Newark street, Hoboken, across the river from, and a little to the southward of, Christopher street. There was an ebb tide running 2-¿ miles an hour. When she had gotten within about 100 feet of the mouth of her slip, she was slowed and stopped to allow a tug with a tow to cross the mouth of the slip ahead of her. After the tug and tow passed, the Paunpeck blew a long whistle, and went ahead under one bell. As she emerged from the slip, three tugs with tows were coming up the river, — the steamtug E. L. Austin, towing three scows tandem, about 200 feet off the pier line; the
The district judge found the ferryboat in fault because she unnecessarily backed when the New York Central tug would have avoided her if she had kept on, and also because it was imprudent for her to start on an ebb tide in front of the three lines of boats; and he condemned the White for fault “in running so near the slips with such a towr, and in line with another tow parallel and only a little outside of it.”
It is no doubt obligatory upon vessels navigating the Hudson river opposite New York City to conform their movements, so far as is reasonably practicable, to the convenience of ferryboats in entering and leaving their slips. Because of the necessity that these transits be made with great frequency and regularity for the accommodation of the public, ferryboats are privileged to entrance and exit without embarrassment from the presence of other vessels in unnecessary proximity to the slips. Accordingly it is adjudged to be the duty of such vessels plying np and down the river “to keep a sufficient distance from the slips, and: hold themselves'under such control as to enable them to avoid ferryboats leaving their slips upon their usual schedule time.” The Breakwater, 155 U. S. 252, 15 Sup. Ct. 99.
It would seem to be a, somewhat violent application of the rule to hold the White in fault. She was proceeding sufficiently far off 'shore to allow' the ferryboat ample room for any maneuver the latter might see fit to attempt in leaving her slip. There was no
If it should be assumed, however, that the White was in fault, the case is one where her fault was remote, and not contributory to the collision as a proximate cause. She had allowed the ferryboat the right of way, and the latter had availed herself of the privilege with safety. There would have been no danger in the situation except for the subsequent intervening negligence of others. Even if this intervening negligence was the misconduct of the New York Central tug in. failing to slow as promptly as she should have done to permit the ferryboat to pass in front of her, the White was not responsible for her misconduct. But the intervening negligence was the misconduct of the ferryboat, and there would have been no collision if she had been properly navigated. It was caused by her fault in stopping and backing when she ought to have kept on in front •of the New York Central tug. Her pilot was not justified in assuming that the New York Central tug would not perform her duty while there was yet time for her to do so, and in doing so he took the risk of being wrong in his assumption. The principle is applicable that no liability attaches to an act of negligence for a result which could not have been foreseen, or reasonably anticipated as the probable consequence, and would not have been induced but for the interposition of a new and independent cause. The Clara, 5 C. C. A. 390, 55 Fed. 1021; Railway Co. v. Elliott, 5 C. C. A. 347, 55 Fed. 949; Railroad Co. v. Bennett, 16 C. C. A. 300, 69 Fed. 525; Motey v. Granite Co., 20 C. C. A. 366, 74 Fed. 155; Scheffer v. Railroad Co., 105 U. S. 252.
The decrees are reversed, with costs, and with instructions to dismiss the petition of the Hoboken Ferry Company, and decree ■conformable with this opinion.