11 F. 156 | S.D.N.Y. | 1882
This libel was filed to recover for damages for injuries to the steam-tug Belief, inflicted by the steamer Bristol in a collision on the East river, near the Fnlton ferry, on the morning of July 5, 1872, under the following circumstances:
The Relief, about 7 o’clock in the morning of that day, left pier 20 on the East river, New York, and steamed across the river towards the Brooklyn shore, designing to take in tow to Harlem an ice-barge which the steam-tug Birbeck was to cast loose, and put in charge of the Relief. TheBirbeek came up the river on the New York side and let go the barge not far from the middle of the stream, and the Relief was lying at rest, waiting for the barge*157 to drift somewhat further up the river, before proceeding to fasten along-side. While the Belief thus lay at rest, heading partly towards the Brooklyn shore and partly up the river, and drifting witli a strong flood tide, she was sighted by the steamer Bristol, coming down the East river on one of her regular trips from Eall river to New York, when about one-half pr three-quarters of a mile distant, about half a point on her starboard bow. A signal of two whistles was blown by the Bristol, signifying her intention to go to the left, i. e., between the Belief and the Brooklyn shore, and her wheel was put to starboard. The Belief answered at once with one whistle, and immediately started her engine at full speed, and headed for the Brooklyn shore. The Bristol at once repeated her signal of two whistles, adhering to the former notice that she was to go to the loft, and shortly after rang her bells to slow the engines. The Belief responded again with ono whistle and kept on. The Bristol then signalled her engines to stop and back, and gave several whistles indicative of danger. By this time she had approached quite near to the Belief, and, before the Bristol could he stopped, she struck tlio Belief upon her port quarter, with a blow somewhat angling, about 12 feet from her stern, carrying away the rudder and a portion of lier stern.
The evidence was conflicting as to the distance of the Belief from the Brooklyn shore, as she lay at rest when first sighted by the Bristol, and also as to which gave the first signal to tire other. There were but three persons on board the Belief. Two of them, the pilot and the deck hand, testify that she lay about 100 yards off the Brooklyn shore. The captain and the lookout of the Bristol testify that the Belief seemed to them to lie nearer to the New York than to the Brooklyn shore. The testimony, however, of Albertson, one of the Fulton ferry pilots, called by the libellants, furnishes the most trusty evidence upon this point. He had loft the Fulton ferry slip in charge of one of the ferry-boats, on one of her regular trips to New York, and had come out into about the middle of the stream, and turned directly down the river, and passed astern of the Belief. He testifies that the Belief was about half way between him and the Brooklyn shore, and that he passed the ice-barge adrift upon his starboard hand, and within three rods of it. The width of the East river at this point is about 1,800 feet, and as this testimony of the pilot would place the Belief at about one-quarter of the distance across from the Brooklyn side, she must have been at least 450 feet distant from that shore.
There are other circumstances which would indicate that the Belief must have been lying even further out into the stream than this estimate. The same pilot testifies that he saw the collision, and that it was about two of his boat lengths, i. e., 326 feet, off the upper Brooklyn ferry slip. The Belief had been under way, heading, ac
Upon the question, which gave the first signal to the other, I think the weight of the testimony is in favor of the claimants. On board •the Bristol, the captain, the two front pilots at the wheel, and the lookout were all in a position to observe, and were specially charged with the duty of observing, vessels lying in their course, and of giving suitable signals, and they would be naturally more observant than those on board the Belief, which was lying at rest in the stream. The former all testify that their signal of two whistles was given before any signal was heard from the Belief, and that the first signal from the Belief, of one whistle, was heard immediately after theirs; and the statement of the libel, that the Belief started after the two whistles from the Bristol, agrees with the testimony of the Bristol’s witnesses, but is not reconcilable with the testimony of the witnesses from the Belief upon the trial.
When this first signal of two whistles was given from the Bristol the Belief was at rest, and the Bristol had, therefore, the right to choose on which side of the Belief she would go. Nothing indicated to the Bristol the intentions of the Belief, — whether she was expecting to go forward or to go backward, — except the possible conjecture that she had some connection with the ice-barge, which was adrift, unattended, upon her port quarter. The ferry-boat, which was also be
But although I find that the Bristol was justified in shaping her course to the southward of the Eelief, it seems to me also clear that she did not exercise that degree of promptness and diligence which was required of her under the twenty-first rule, in stopping and backing when danger of a collision was obviously imminent.
After the lapse of so many years considerable variation was to be expected in the estimates of the distance between the two boats at the times of the various signals exchanged between them. The master of the Bristol estimates that when the Eelief started forward and gave her one whistle in immediate answer to the previous two whistles of the Bristol, they were from a quarter to a half á mile apart. The Bristol was already sheering to the southward under a starboard wheel. The imminent danger of collision was obvious unless the Eelief should immediately reverse her engine. As she had already disregarded the previous signal of the Bristol, and had answered showing a contrary determination, and had already started forward, I do not think the Bristol was justified in assuming that she would reverse this determination on a repetition of the Bristol’s signal of two whistles, or in waiting as she did to see the result of a repetition of her own signal, before stopping and backing.
The testimony of the engineer furnishes the best indication of the time before the collision when the bells to stop and back were given him. He estimated it at about 15 seconds only, during 10 of which the engine was backing. He says that she made about one and a quarter revolutions backward; and this accords nearly with his'estimate of time. Before the signal to stop and back, he says he was running under a slow bell for about three-quarters of a minute, and this is an estimate only. The captain states that he rang the bell to slow after the first whistle from the Eelief, and after an immediate repetition of his signal of two whistles, and that he did not stop and back until after the repetition by the Eelief of her single whistle. Captain Keenan, one of the pilots, says, “We were close onto her [Eelief] when the bells came to stop;” and this accords with the engineer’s testimony. All the other testimony confirms the master’s statement that they were from a quarter to a half a mile apart when
The master testified that under a slow boll the Bristol could be stopped in running twice her length — a little over an eighth of a mile. The Belief was struck only 12 feet from her stern, and a delay of three seconds in the approach of the Bristol would have avoided the collision. Upon the claimant’s own testimony, as it stands, I must hold that the Bristol should have stopped, and backed her engines, at least half a minute before she did, and that had she done so a quarter of a minute earlier the collision would have been avoided.
Upon the foregoing views the damages in this case would therefore be apportioned, were it not for the additional defence interposed by the claimants that the libellants have lost their lien through their laches in asserting it as against the claimants, who became bona fide purchasers of the Bristol over two years before the libel was filed.
At the time of the collision, July 5, 1872, the Bristol was one of the Fall River line of steamers owned by the Narragansett Steamship Company of Rhode Island. On June 8, 3874, this company sold all its property, including the Bristol, for $1,600,000, subject to certain mortgages to the Old Colony Steam-boat Company of Massachusetts, who are the claimants in this case; and the former company thereupon went out of business and became practically defunct. Prior to the sale, the claimants in this case used all practicable means of ascertaining what liens, encumbrances, or charges existed against the property purchased. Many such claims thus became known to them, not, however, including the claim in suit, of which they had no knowledge or notice until more than two years afterwards. At the time of the sale to the present claimants a deposit of bonds to tho amount of $300,000 was made in the hands of trustees for the purposes of indemnity against all outstanding claims or demands upon the steam-boat property, which remained for about five months, until October 30, 3 874, when all known claims upon the property having
The excuse offered by the libellants for the delay of nearly four years and a half in filing their libel, is that when the claim was first placed in the hands of their proctors, shortly after the collision, promises of settlement were made by persons connected with the Narragansett Company, and that the proctor who had special charge of the ease having awhile afterwards become disconnected with the office, it was not until several years afterwards that his remaining associates discovered that the libel had not been filed. The Bristol, during all this period, had made her usual trips between New York and Fall Biver thrice a week, except during the winter months, when she was laid up; and there had, therefore, been the most ample time and opportunity for the libellants to assert their lien during the period of nearly two years which elapsed from the time of the collision until the sale to the present claimants.
The reasons offered for the delay are not such as concern bona fide purchasers, and cannot be held to affect their rights. It has long been settled that the privilege of a maritime lien, which is in the nature of a latent, unregistered mortgage, will not be enforced against bona fide purchasers or encumbrancers, without notice, after the failure to assert it within a reasonable period, and where ample opportunity for doing so has been offered. In the case of The Utility, Bl. & H. 218, the subject was carefully examined by Betts, J., more than 50 years ago, and he finds it to be “a principle common to the maritime law, wherever it is administered, that all liens upon vessels are temporary and evanescent, and cannot be continued any longer than until a reasonable opportunity has been offered for their enforcement ; ” and the libel filed in that ease, a little over two years after the supplies were furnished, was dismissed as against bona ñde purchasers. In the case of The Nevada, 2 Sawy. 144, a libel was filed about two years after the cause of action occurred, and was, dismissed as against an intervening mortgagee. In The Lauretta, 9 Fed. Rep. 622, the libel was dismissed as against an intervening purchaser upon a similar, delay of two years. In The Eliza Jane, 1 Spr. 152, upon a libel for supplies, the lien was held lost as against a purchaser after a delay of eight months only. In The General Jackson, 1 Spr. 554, a lien for supplies was held barred as against
The general doctrine on this subject is concisely stated by Sprague, J., in The Lillie Mills, above cited, in which he says:
“If there had been no transfer or attachment of the property, I should hold the lien was not lost. 'When the rights of third persons have intervened, the lien will be regarded as lost if the person in whose favor it existed has had a reasonable opportunity to enforce it, and has not done so. This is a well-settled rule of the admiralty. The lien for supplies lias its origin in the necessities and convenience of commerce and navigation. It is for the interest of navigation and commerce that these liens should exist, and it is equally so that they should not be allowed to extend unnecessarily to the injury of innocent third persons. In this case there can he no doubt the libellant has had ample opportunity to enforce his lien, and it cannot now be allowed to prevail against the rights of bono, fide purchasers or attaching creditors.”
The cases on this general subject are very numerous, and the same principles are declared in thorn all without exception. See The Key City, 14 Wall. 653; The Eastern Star, 1 Ware, 185; The Louisa, 2 Wood & M. 55; The Bolivar, Olc. 474; The Buckeye State, Newb. 111; The Dubuque, 2 Abb. (U. S.) 33; The D. M. French, 1 Low. 43; The Wexford, 7 Fed. Rep. 674; The Robert Gaskin, 9 Fed. Rep. 62. It is only where no reasonable opportunity has existed to enforce the lien through the absence of the vessel or the libellant, or other sufficient cause, that the lien is upheld as against subsequent purchasers or encumbrancers. The Atlantic, Crabbe, 440; The Eliza Jane, 1 Spr. 152; The Prospect, 3 Blatchf. 526.
It is claimed on behalf of the libellants that this exemption of bona fide purchasers should not bo allowed if the latter would have a legal remedy over against their vendors upon covenants against encum
It is clear that if bona fide purchasers are to be protected at all, they should be exempted from the annoyance and vexation of such litigations; otherwise, their protection would be but partial and inadequate, and scarcely worth the name. Such covenants of warranty, moreover, are not taken for the benefit of third persons; certainly not for the benefit of those who have lost their lien through laches in asserting it; nor is there any reason for holding that bona fide purchasers shall be worse off and less entitled to protection in consequence of their having taken covenants of indemnity than if none had been given. If, on the other hand, the vendors are irresponsible at the time of filing the libel, a covenant of indemnity would be of no value. In none of the cases on this subject has the decision turned at all upon the question whether the purchaser has or has not any available remedy against the vendor, but solely upon the laches of the libellant, by which, after full opportunity to enforce his lien, it is held waived as against bona fide purchasers. If the distinction claimed were allowed, the mere taking of a warranty would' deprive a vendee of the protection of a bona fide purchaser. The point was raised in the case of The Detroit, 1 Brown, 141, and held by Swayne, J., (p. 147,) to be unsound. The Hercules, 1 Brown, 560, 565.
The purchasers in this case took every reasonable precaution to provide for latent claims upon the vessels purchased. They not only made full inquiry from the vendors, and an examination of their books, to ascertain all such outstanding claims, but they also searched the records and dockets of all courts where claims might be filed, or proceedings pending, and withheld for nearly five months the sum of $100,000, placed in the hands of trustees, to cover any such claims. The sale of the property was in summer, while the Bristol was constantly running upon her tri-weekly trips to and from New York, and