48 F. 917 | S.D.N.Y. | 1891
About noon on the 11th of April, 1891, the libelant’s barge Roseton, loaded with brick, in tow of the steam-tug Mascot, on a hawser, while going up the artificial canal which runs to the southward and eastward from Newtown creek, was run upon a sunken rock a little to the eastward of Stag street, and from 55 to 65 feet off from the southerly side of the canal. Subsequent examination showed that this rock was a sharp peak, rising up about 15 incluís above the level of a flat rock, about 9 feet long by 8 feet wide, which was situated a few inches only below the muddy bottom of the canal. Another rock near by, but probably somewhat further off from the southerly shore, had been well known to navigators, and was removed in December ¡previous. The claimant contends that the rock removed was the only rock known, and that the tug is not liable, because the rock on which the Mascot struck -was previously wholly unknown. If I were satisfied that the tug had pursued the usual course in going up the canal, I should hold her not liable. The clear weight of evidence, however, is that all boatmen knew that it Avas necessary to keep upon the southerly side of the channel-way, and that Avhen, as in this case, a schooner was moored at the bulk-head off Stag street, the usual course was to go as near to the schooner as possible. Had the Mascot pursued this usual course, the evidence leaves no doubt that the Roseton Avould not have been harmed. Schooners were very frequently moored there, and the -Roseton, and other barges drawing quite as much water, had been frequently taken past such schooners without injury. On this trip, moreover, the tide was at high water, so that everything was most favorable, ' These facts, with the evidence as regards the position of the rock, satisfy me that the Roseton struck the rock because the tug did not pursue the customary course, and go near the schooner that was lying there, but Avent at least 10 feet off from the schooner, instead of only 8 feet, as the tug’s witnesses contend. The customary practice Avas binding upon the Mascot. No reason for departing from it is suggested. In case of accident from obstructions AArhile departing from the customary course, it certainly is not incumbent upon the libelant to shoAAr that the tug or other boatmen had positive knowledge of the precise reasons for the custom, or of the exact location of each particular rock or obstruction, Avhatever it might be. It is enough in this case that the necessity of going very near to any schooner that might be moored •at the bulk-head Avas knoAvn; and the invariable custom of passing so near, viz., within two or three ieot, or even grazing the schooner, as the witnesses testify, is sufficient evidence of the necessity, and of some obstructions that required such navigation. The defendants, in effect, confirm this by their testimony that they did go Avithin three feet of the schooner, though I find them mistaken on this point. The general knowledge that a certain course was the proper course to take in consequence of some obstructions, and that it Avas the custom uniformly to adhere to that course, is sufficient to put upon the tug the risk of departing from it without reason. The Mary N. Hogan, 85 Fed. Rep. 554.
Decree for the libelant, Avith costs.
