56 F. 312 | 2d Cir. | 1893
This is an appeal from a decree of tbe district court for tbe eastern district of New York, which adjudged that tbe libelants recover, of tbe claimants of tbe steam tug Charles Runyon, damages for neglect in respect to tbe boat Thomas Dobie and her cargo. The following facts were found by tbe district judge:
“On the 31st day of March, 1889, a contract was made by the owners of the tug Charles Runyon to tow the canal boat Thomas Dobie, loaded with a cargo of coal, from Port Johnson to Barren island. The tug started in the morning with the canal boat, but after she passed Norton point the weather proved so heavy that the tug deemed it prudent to go no further. She accordingly turned back with the canal boat, and taking the canal boat to the north side of the American cotton docks, on Staten island, left her there, alongside of the north side of pier 1. The place where the canal boat was left was not a regular slip. It had never been excavated for a slip, but was simply part of the land used by the lighthouse station at Staten island, which adjoins pier 1 of the cotton docks. At the time the canal boat was left at that pier the master of the canal boat objected to the place as unsafe. The wind was then high. During the after*313 noon tlie master of tlie canal boat proceeded to New York, and informed the owners of the tug that the boat was in danger, and requested them to move her to a safe place. They promised to do so in the morning. The master also made unsuccessful efforts to procure another tug to move him to a safe place. The bottom alongside pier 1, where the canal hoat was moored, was a shelving bank; tin water being some 30 feet deep at the end of the pier, and shoaling town ids the shore. During the night the caual boat suddenly broke in two, and sank.”
These facts are fully supported by the testimony. The breakage was caused by the grounding of the bow of the boat in comparatively shoal water, the depth increasing rapidly towards the stern. The boat suddenly cracked, and sank before the captain and Ms wife could get ashore.
The theory of the libel was that the plací; where the tug left the canal hoat was unsafe, by reason of insufficiency of water; that the unsafeness ought to have been known by the master of the tug; and that, when informed of the danger, the owners neglected to remove the boat to a place of safety. It was not denied that the obligation to put the canal boat, into a. safe place rested upon the tug when she thought it proper to suspend towage, and to leave the boat at Htaten island; but the contention on the part of the tug was principally to the effect that there was an abundant depth of water where the boat lay, that the accident happened by reason of her bad condition, and that her captain was negligent in not foreseeing and preventing the danger. The conflict of testimony upon the depth of the water on the north side of pier 1 was truly said by the district judge to be “extraordinary;” but the significant-fact which is at variance with the measurements of the claimants is that the canal boat did break in two while lying at this place in low water. It is a further fact that the grounding, and not her unsoundness, caused the injury.
The point was made in argument by tlie claimants that the captain of the canal hoat was guilty of neglect in not attempting to rescue his hoat and cargo from known or anticipated dangers during the day and evening before she sank, but the testimony does not support the claimants’ theory. On tin; contrary, the captain went to yew York in the afternoon of March 31st, and informed the owners of the tug of the danger, and asked their immediate assistance, but they preferred to delay until the next morning. The affirmative evidence is that he foresaw the coming trouble, and was both anxious and earnest in his attempt to gain assistance, and to save the hoat and cargo.
The decree of the district court is affirmed, with costs.
