180 F. 700 | 2d Cir. | 1910
May 15, 1908, at about 6:15 p. m., the tide-being flood in the North and ebb in the East River, with little or no-wind and a clear atmosphere, the tug Edmund Moran left the Battery landing bound down the Upper Bay. At the same time the tug Glen Cove towing two canal boats side by side on a hawser about 125 feet long, with a third canal boat, The Bronx, astern of the port boat of the-first tier, was proceeding from the North into the East River. A Pennsylvania tug bound from the East River into the North River with a barge alongside passed between the vessels. In this situation the courses of the Glen Cove and Moran were crossing and it was the duty of the Moran to keep out of the way. When heading for the Bronx and not more than 70 feet away, she undertook to swing some
“I had scarcely reached a pttot 500 feet abreast of the landing when my steering wire parted. ' I immediately sounded my alarm whistles and rang for full speed astern; but, before my tug could reverse, I struck a coal boat which was the stem boat in a tow of three in charge of the tug Glen Cove. The coal boat sank almost immediately, and I was unable to secure her name.”
The cable which parted was made of iron wire around a core of hemp consisting of 6 strands, each strand composed of 6 strands of 7 wires each of 252 in all. All the wires were parted at the break.
The district judge overruled the defense because of testimony offered by the libelant to the effect that the wire cable showed signs of wear. The claimant contends that this finding is so contrary to the evidence that the decree should be reversed. But, adopting the claimant’s story, we come to the same conclusion. Its witnesses testified that the cable was of the usual kind and size for the purpose, bought of a first-class manufacturer, inspected twice a week, and now showing no signs of a defect; in other words, the claimant proves no cause for the parting. In the case of the Merchant Prince, Prob. Div. (1892) 179, the Court of Appeals reversed the Admiralty Judge, Sir Charles Butt, and held a collision was not due to inevitable accident. Ford Justice Fry said:
“The burden rests on the defendants to show inevitable accident To sustain that, the defendants must do one or other of two things. They must either show what was the cause of the accident, and show that the result of that cause was inevitable, or they must show all the possible causes, one or other of which produced the effect, and must further show with regard to every one of these possible causes that the result could not have been avoided. Unless they do one or other of these two things, it does not appear to me that they have shown inevitable accident.”
This language was cited with approval by the Circuit Court of Appeals for the Sixth Circuit in The Olympia, 61 Fed. 120, 9 C. C. A. 393, although in that case the court found the collision was due to inevitable accident.
There is testimony in this case that a sudden porting would cause a shock upon the steering cable likely to break it if a little slack, even if it were strong enough for ordinary use. The witnesses of the claimant exactly describe a situation in which a sudden porting was necessary. They admit that in order to clear the canal boat the tug, when within 60 or 70 feet, had to change her course to starboard 6 points. The claimant not having shown any affirmative cause why the cable parted, has it disposed of this possible cause ? The pilot says that when 125 feet (a length and a half) away from the canal boat he started to port, and, finding that the tug did not answer, when within 50 to 60 feet he put the helm over hard aport and rang to go full speed astern. We do not believe that the steering rope parted under a gentle porting.
Decree affirmed, with interest and costs.
