38 F. 256 | D. Conn. | 1889
This is a libel in rein to recover damages for the alleged negligence of the America and her tow, the Nile, whereby the Nile, when grounded upon a falling tide, listed over upon the R. W. Burrows, which was lying at the wharf, and the latter was jammed and held fast between ■the Nile and the wharf until the rising tide covered and sank her. For eight or ten days prior, to May 21-, 1887, and for two summer seasons before 1887, the tug-boat R. W. Burrows had been engaged in towing mud-scows on the Pawtucket and Providence rivers, and was in the habit of laying up at night at the coal-wharves of the Boston & Providence Railroad Company, at a place known as “India Point,” near Providence. Her officers or owners had not obtained permission to tie there, and paid no wharfage for the privilege, but the watchman of the railroad company knew that such was her habit, and made no objection. The agent of the company in charge of the wharves knew that the river tugs, whose captains lived in East Providence, were, wont to tie up there without permission, and without objection. About 7 o’clock on Saturday evening, May 21, 1887, the said tug made fast to one of said wharves, at one of the five places thereat for discharging coal. Immediately after, the tug America towed the barge Nile, loaded with 408 tons of egg coal, which was owned by and consigned to the said railroad company, to another of its wharves at that point, and the latter was partially made fast. As the America, had blown her whistle to attract the attention of the consignees, a person appeared at this time, whom I believe to be the watchman, and who said he was in authority, but who was not intrusted with authority in regard to the berths of vessels, and directed the captain of the America to place the Nile at the wharf where -the Burrows was, or along-side of the Burrows, and said that her coal was to be discharged at the place ivhere the Burrows lay. In fact the coal was not to be, and was not, discharged at that point. Coal is not unloaded at those wharves at night, or between Saturday night and Monday morning. The Burrows’ captain and pilot saw the America and the Nile come up, and waited to see where the tow was to be placed, thinking that she might be ordered under the spot which the Burrows occupied; but, seeing that
The law on the foregoing facts is stated in Vantine v. The Lake, 2 Wall. Jr. 52; The Indian v. The Jessie, 2 Marit. Law Cas. 217; and The Lidskjalf, Swab. 117. The tacts in each of these cases were very similar to those of the present case. The law is stated in The Lidskjalf, as follows:
“When a vessel is lying on the shore, and another vessel is placed volnn- * tarilv by her owners, or those who are acting in their behalf, in such a position that damage will happen if some event arises which it is not possible to control, the owners of the second vessel must be responsible for the damage.”
This must be especially truc w'hen the event which arises is one which ought naturally to be anticipated and to be guarded against. In this case it was certain that the Nile would ground. It' was reasonable to expect, that she would list somewhat; and, if she listed towards the wharf,