189 F. 40 | 2d Cir. | 1911
On October 5, 1909, the steamship Dorothy was lying aground in Newtown creek and was endeavoring, at high tide, by means of her propeller and a hawser to the shore, to get herself free. The Dorothy is a large steamship about 315 feet in length. She was headed upstream and was lying with her bow between 300 and 400 feet from the dock on the Brooklyn, or southerly, side of the creek, her stern reaching almost to the East River.
The Wyomissing, with a tow of 16 loaded barges, reached the mouth of the creek intending to tie up at Bergen’s Dock and there distribute her East River boats. The tow was made up in four tiers, the injured boat — the Carney — tailing behind the fourth tier. Accompanying the tow, as helper, was the tug Pencoyd. When the head tier of the tow had reached the bulkhead, the Carney, at the end of the tow, had been swung by the flood tide in the river diagonally across the creek and towards the starboard side of the Dorothy. Up to this time we understand the proof to be that the Dorothy’s propeller had not been in motion. At 11 o’clock the Dorothy started her propeller at a time when the Carney had been carried by the tide to about amidships of the Dorothy. She was then about 100 feet from the Dorothy’s starboard side and was in no danger from the propeller. Fifteen minutes after it started to revolve the Carney was, by means of the suction thus produced in the comparatively shallow waters of the creek, drawn against the revolving blades and received injuries from which she sank shortly thereafter.
The steamer was found at fault because of the negligence of a lookout at her stern in failing to give warning of the drifting of the Carney towards the propeller. The tug was inculpated because she failed to give the Dorothy warning of the proximity of the Carney at the time her engines were started; also in failing to give assistance to the Carney. We concur in the finding against the Dorothy, but are unable to find negligence on the part of the Wyomissing.
The Dorothy was aground in a part of the harbor where vessels alone and with tows were constantly going m pursuit of their ordinary vocations. She was 315 feet in length and with the line out to the Brooklyn shore, which she refused to remove, she was seriously obstructing navigation. It cannot be pretended that the Wyomissing and the other tugs having business in the creek were called upon to suspend operations and lie out in the East River until, the Dorothy was floated. The tug was entirely justified in proceeding to the lumber dock for the purpose of sorting out and distributing the barges in her custody. That she did this prudently and with a due regard for all the dangers which were reasonably to be apprehended, we are convinced. She was not called upon to assume that the Dorothy would start her propeller when the barges were in dangerous proximity and
The witnesses called- for the Dorothy were an oiler, who was stationed at the stern “to watch the propeller and see that nothing came up to her,” and two engineers, who were in the engine room and saw nothing of what was transpiring. The captain, who, according to the oiler, was on the bridge, was not called. The negligence of the Dorothy is so plain and so clearly accounts for the accident that it is not necessary to speculate as to other causes.
Eor IS minutes, at least, her propeller was revolving and the suction produced was gradually drawing the Carney nearer and nearer to the danger. All this was apparent to the oiler, who was on watch and also to the man on the bridge, and yet nothing was done to prevent the disaster. If this situation were insufficient to induce those in charge of the Dorothy to stop her engines, it is not easy to perceive what means could have been employed to produce that result. The testimony shows that there was general commotion among the barges, signals were given and warnings were shouted to the steamer. Even though it be conceded that these were given when tire Carney was in extremis, it does not detract from the proposition that the steamer knew of the danger and that signals, even if given sooner, would have added nothing to that knowledge. If she had stopped her propeller for a few minutes, until the barges had been safely moored or towed away, there would have been no collision. That it was her duty to stop her propeller we have no doubt. The duty was so obvious that the Wyomissing was justified in believing that it would be performed and she cannot be held at fault for assuming that the Dorothy would act as common sense and ordinary prudence dictated.
It follows that the decrees should be reversed and the causes remanded to the District Court with instructions to enter a decree in the first of the above entitled actions against the Dorothy with costs and to dismiss the libel in the second of the above entitled actions with costs to the Wyomissing.
The Wyomissing should recover her costs in this court.