2 F. Cas. 564 | S.D.N.Y. | 1868
Where a vessel in motion comes into collision with a vessel which is motionless, the burden of proof lies on the vessel so coming into collision, to show that the collision was inevitable, or that the motionless vessel was to blame. The Percival Forster, Down. Col. 58. In the present case it is claimed, on the part of the ferry-boat, that the force which swept her against the tug was a vis major, and that, therefore, the collision was, so far as the ferry-boat was concerned, the result of inevitable accident. The ferryboat must be held liable for the damages caused by her, while in motion, to the motionless tug, unless she shows affirmatively that her being carried against the tug was the result of inevitable accident, or of a vis major, which human care and precaution, and a proper display of nautical skill, could not have prevented. The Louisiana, 3 Wall. [70 U. S.] 164, 173; The Granite State, Id. 310, 313, 314. Inevitable accident, as respects a colliding vessel, means that such vessel has endeavored, by every means in her power, with due care and caution, and a proper display of nautical skill, to prevent the collision. The Lochlibo, 3 W. Bob. Adm. 310, 318. Within these rules, it is fully established, on the evidence in this case, that, so far as the ferry-boat is concerned, the collision was not the result of inevitable accident, or of a vis major. The evidence shows, and indeed it was admitted by the pilot of the ferry-boat, in his testimony, that, as she approached her slip, another ferry-boat was about the length of the Baltic ahead of the Baltic, bound for the easternmost berth in the slip; that the Baltic did not stop for such other ferry-boat, and that, if the Baltic had been alone, and such other ferry-boat had not been thus ahead of her, she would have been able to go nearer to the pier at the easterly side of the slip. The effect of this would have been, that the farther she got to the eastward, the farther would she have kept to the eastward, and away from the tug, when sagged to the westward by the ebb tide. I am satisfied, from the evidence, that if the ferry-boat had exercised due care, and had kept as far to the eastward as she ought, and as she could but for her crowding too closely upon the ferry-boat ahead of her, she would not have struck the tug. Even if the tug projected with her stern across the entrance to the slip, the feriy-boat, having chosen to attempt to enter her slip with the tug in that position, and under circumstances which made it difficult to escape a collision, must, a collision having taken place, bear the consequences of the contingency to which she exposed herself. The Hope, 2 W. Bob. Adm. 8, 10. If the tug haa been wrongfully lying wholly across the entrance to the slip, that would not have exempted the ferry-boat from responsibility for colliding with her in attempting to enter the slip. There was, therefore, fault on the part of the ferry-boat, leading to the collision.
But there was also fault on the part of the tug. The weight of the evidence is, that she was lying with her stern projecting partly across the entrance to the ferry slip, and where she had no right to lie. The character of the blow she received, the place where she was struck, and, indeed, the fact that there was any collision at all, all go to show that she must have been lying with her stem projecting to the eastward of the east end of Pier No. 1.
There must be a decree apportioning equally between the two vessels the damages sustained by the tug by the collision, with a reference to a commissioner to ascertain and report such damages.