| E.D.N.Y | Jun 7, 1905
The tug Brown was going to sea, having in tow the mud scow McGirr No. 22, and, eight or ten feet aft thereof, the scow No. 38E. When in the middle of the channel, and 1,500 to 2,000 feet below the fort at Governor’s Island, the swells of a steamer passing on the tow’s starboard side so disturbed the scows that the stern of scow No. 22 got under the timber across the bow of No. 38 and lifted it, and for such injury the libel is filed.
The master of scow No. 38 was not produced, as he was in California. Pirro, master of No. 22, testified that a steamer “going rather fast” passed the tow 200 or 300 feet away, and “made the sea big, swell, and it went under the stern of the scow 38.” Erickson, captain of the tug, says that the Asbury Park passed the tug 400 or 500 feet off; that she was going about 12 miles an hour, although he would not swear that she was going more than 10 miles; that when he looked back the scows were “jumping in the sea, in the swell,” and that the steamer was then 2,000 feet aft the tow; and that, using glasses, he saw her name under the stern. The captain and pilot of the steamer state that the name is under the fantail, and that when the propeller is in motion it would be very difficult, if not impossible, to see the name at a considerable distance. The captain of the tug places the accident between 3:30 and 4 p. m. Anderson, the engineer of the Brown, confirms the captain’s statement that the tug slowed down, and that shortly he got a bell to stop and to go ahead again, and that as he went about he did not see the steamer, but did see the swells breaking all over the scows. The claimant’s witnesses, Braisted, the captain, and Martin, the pilot, of the Asbury Park, gave evidence to the effect that the Asbury Park left Atlantic Highlands at 2:33 p. m., and reached the pier in New York at 3:35 p. m., passing Governor’s Island about 3:28. Neither of them have any recollection of the tug and scows or of the accident. They state that in the neighborhood in question, before reaching such a tow, and when two, three, or
The evidence establishes (1) that swells did affect the dumpers so as to cause the injury; (2) that the swells were caused by the Asbury Park; (3) that if the speed of the Asbury Park is properly reduced, and if she passes at a proper distance from a tow, she produces no injurious swell. As she did cause an injurious swell, it is inferable that she was not observing the customary care which she had theretofore deemed requisite for safety.
The claimant bases an argument upon discrepancies in the statements of the libelant and its agents and servants as to time. But experience teaches that misstatement of time and distance is a common error, and departure from accuracy in such regard in this case is not sufficient to override the evidence that the offending vessel was the Asbury Park.
The libelant should have a decree.