203 F. 855 | 2d Cir. | 1913
“Such waters are not to be appropriated to the exclusive use of any one class of vessels. We do not mean to hold that ocean steamers are to accommodate their movements to craft unfit to navigate the bay, either from • inherent weakness, or overloading, or improper handling, or which are carelessly navigated. But of none of these is there any proof "here, and, in the absence of such proof, we do hold that craft such as the libelant’s have the right to navigate there without anticipation of any abnormal dangerous condition, produced solely by the wish of the owners of exceptionally large craft _ to run them at such a rate of speed as will insure the quickest passage. To ’ hold otherwise would be virtually to exclude smaller vessels, engaged in a legitimate commerce, from navigating the same waters.”
Broadly, the rule is as applicable to the lower bay as to the upper bay and was applied in respect of it in Ross v. Central R. R. Co. (D. C.) 146 Fed. 608, affirmed 157 Fed. 1004, 85 C. C. A. 678. See also The St. Paul (D. C.) 124 Fed. 103. The only distinction is that by reason of closer proximity of the sea and less traffic more latitude may be allowed incoming steamers in "their operation and more care may be required from small craft in their handling. Thus undoubtedly steamships may proceed there at a high rate of speed when the channel is free and no danger is to be apprehended. But they have no right to so proceed when the channel is full of boats or when, at night or by
On the other hand, we are not satisfied that the tug was free from fault. 'I'he scows were less than six feet apart and so close that the swells caused the rear scow to override the other. No substantial excuse is given for this method of making up the tow. The prevention of sheering seems, in respect of the lower bay, an inadequate reason. We cannot see why the rear scow could not have been towed on a much longer line. In the absence of proof showing that the arrangement was necessary, we think that the libelants cannot be heard to say that they were not negligent or that their negligence did not contribute to the injury. While the scow might have been injured by the swells in a different way in the case of a different make up, she could hardly have been injured in the same way.
It must be distinctly understood that we are not laying down any general rule as to the obligation of incoming steamers to tows in the lower hay which are in a “hunched up” arrangement. If there are substantial reasons requiring very short hawsers upon tows there it may be that such method of towing does not constitute negligence and that incoming steamers must govern their movements with respect thereto. But the present testimony fails to show in this case any substantial necessity for the arrangement.
The decree of the District Court is reversed with costs and the cause remanded with instructions to decree for the libelants for one-half damages.