Minch v. Victoria

79 F. 122 | S.D.N.Y. | 1897

BROWN, District Judge.

The above libels were filed to recover for the injuries to and loss of certain canal boats and tbeir cargoes, in Tappan Zee, in a storm, while coming down.the Hudson river in tow of the above-named tugs on the morning of the 29th of August, 1893.

I The libelant’s boats were part of a fleet of 32 boats, i. e., 8 tiers of 4 boats each, which came from Albany in tow of Ronan’s Line, on a hawser. On reaching West Point, in the evening of August 28th, the 3 tugs above named, which had come up from New York that afternoon and evening, took the tow, relieving the tugs that had brought it down from Albany. On the 28th, cautionary signals were given in New York, indicating the approach of a violent southeast storm. In crossing Newburg Bay considerable rough weather was met, with indications of storm. The tow, however, proceeded on from West Point, being more or less in the shelter of the Highlands until they reached Stony Point, at about 1 a. m. At that time the wind was blowing strong from the southeast. Two hours before, it was blowing 21 miles an hour at hiew York, and at 1 o’clock it was blowing 31. The tugs, however, continued on past Stony Point without pause, or examination below to see if the weather was flt to proceed, and speedily ran into a heavy wind and sea, on a course nearly southeast., across TIaverstraw Bay into Tappan Zee, until by the swamping and sinking of the canal boat Anthony, in the hawser tier, the tow was broken up. The subsequent damage was, I think, the incidental result of that breaking up of the tow, and of the endeavors of the tugs to take care of the boats.

A great deal of testimony lias been taken, conflicting as usual, as regards the condition of the weather before and after passing Stony Point. 1 am satisfied that the tugs luid abundant reason, through the cautionary signals that had been displayed, and from the signs of storm from the time the tow arrived at West Point, to require them to examine the state; of the weather below Hiony Point, before entering IIavers!raw Bay. Above Stony Point there was abundant means of anchorage until the storm had subsided.

It is true the storm was one; of unusual violence for the summer season; but this had been predicted. The testimony of the cap tains of the tugs indicates that they were not accustomed to pay attention to cautionary signals. If this is the practice, it must certainly be at their risk. In appiroachiiig exposed situations with boats of this character, not able to withstand heavy seas, it has often been shown before me that tugs are accustomed to go out ahead and make examination before taking tows out into an exposed situation (see The Borden town, 40 Fed. 682); and this is required by reasonable prudence (The Nannie Lamberton [Dec. 11, 1896] 79 Fed. 121).

I must, therefore, hold the tugs liable on the ground that they did not use the reasonable caution required of them, nor heed the express evidences of a, storm before reaching Stony Point, nor regard the previous public notice of a coming violent southeast storm, with which they must stand chargeable. In re McWilliams (The Vandercook) 65 Fed. 251, affirmed 20 C. C. A. 580, 74 Fed. 648.

The libelant is entitled to a decree, with costs.