No. 324 | 2d Cir. | Apr 21, 1924
Libelant’s barge was anchored wherever the Potter put her, and we agree with the court below that the chosen anchorage was proper, and the Potter therefore without fault.
The only question remaining is whether the Franks, moving across anchorage ground in a fog of remarkable density, and at the rate of
For the barge it is urged that her failure to ring bells according to rule did not contribute to collision; but the rule of law is that a vessel infringing a positive regulation must affirmatively show that such violation did not contribute. The Pennsylvania, 19 Wall. 125" court="SCOTUS" date_filed="1874-03-16" href="https://app.midpage.ai/document/the-pennsylvania-88869?utm_source=webapp" opinion_id="88869">19 Wall. 125, 22 L. Ed. 148.
Thus far we agree with the court below, but think it was inadvertently further held that the Franks, although going-at a rate of speed which rendered it impossible for her to stop within the distance objects could be seen, was not liable because the anchored barge was not ringing a lawful bell. The contrary was held in The Raleigh (C. C.) 44 F. 781" court="None" date_filed="1890-12-03" href="https://app.midpage.ai/document/hardy-v-the-raleigh-8840894?utm_source=webapp" opinion_id="8840894">44 Fed. 781, The Etruria, 147 F. 216" court="2d Cir." date_filed="1906-05-22" href="https://app.midpage.ai/document/the-etruria-8761436?utm_source=webapp" opinion_id="8761436">147 Fed. 216, 77 C. C. A. 442, and The Haven (C. C. A.) 277 F. 957" court="2d Cir." date_filed="1921-12-14" href="https://app.midpage.ai/document/the-haven-8823570?utm_source=webapp" opinion_id="8823570">277 Fed. 957.
Decree modified, to award libelant half damages; costs of this court to libelant, and costs here to the Potter also.
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