88 F. 302 | N.D.N.Y. | 1898
(after stating the facts). On the 31st day of August, 1897, the libelant’s canal boat Whitney, while being towed by the respondents’ tug Florence down the Hudson river from Troy to Albany, sprung a leak of so serious a nature that it became necessary to beach her on Beverwyck island, at the northerly limits of the city of Albany. The theory of the libelant is that the damage thus produced was due to the negligence of the tug in not properly making up the tow and in going too near the shoals on the easterly side of the river. The theory of the defense is that if a collision occurred at all it was with a hidden obstruction unknown to experienced river-men. No negligence is imputed to the canal boat. The duty imposed upon the master of a tug in such circumstances is to use the caution and skill which belongs to prudent navigators. He is required to exercise ordinary diligence and see to it that the tow is properly made up and that the lines are strong and securely fastened. He must know the condition of the river, the width of the channel and the tow and the effect of the tide. He must determine whether canal boats when lashed together can pass safely between the edge of the channel and any obstructions which may be in the river. He is the pilot of the voyage and responsible for the navigation of both vessels. If accident results from the want of proper knowledge on his part of the difficulties of navigation in the waters which are the theater of his tug’s operations, the owners of the tug are liable. The Margaret, 94 U. S. 494; The Miagara, 20 Fed. 152; The M. J. Cummings, 38 Fed. 378, and cases cited. Although the master of the tug is bound to know of snags, sand bars, sunken barges and other dangers of navigation, he is not responsible for a loss occasioned by striking an unknown rock. The Angelina Corning. 1 Ben. 112, Fed. Gas. No. 384; The Mary N. Hogan, 30 Fed. 927; The Robert H. Burnett, Id. 214; The Pierrepont, 42 Fed. 687.
The evidence is overwhelming that the 'Whitney was in a seaworthy condition at the time she was taken in tow by the Florence. The respondents offered some evidence of admissions by the Whitney’s master that, on her journey from Buffalo, she struck upon sharp rocks at a point where blasting was going on and received injuries which caused her to leak. This is denied by the master and every member of the crew testified that nothing of the kind occurred. Admissions
The theory that the Whitney may have struck an unknown rock or other obstruction in the channel cannot be maintained. It is based wholly on conjecture. There is absolutely no proof of such an obstruction. It would require unusually strong evidence to convince the court that such an obstruction could exist in a channel only about 250 feet in width and traversed daily by a multitude of boats. There should be a decree for the libelant with a reference to compute the amount due.