163 F. 862 | S.D.N.Y. | 1908
Edward Reilly, the owner of the scow Prosperity, brought this action to recover the damages alleged to have been -caused by the swells of the steamboat Hendrick Hudson, while passing the .scow, then discharging a portion of her load of stone, at the foot of 158th street, North River, on the 12th day of August, 1907. It was alleged by the libellant that the scow was in all respects strong and seaworthy, was properly moored, and that the steamer when going up the river at an excessive and dangerous rate of speed,' caused great suction and extraordinary swells which lifted the scow and caused her to strike violently against the bottom of the river.and the dock where she lay, whereby the seams of the scow were opened and she was otherwise seriously damaged. Faults were alleged: (1) in proceeding at a high and dangerous rate of speed,
The answer of the steamer required proof as to the ownership of the scow, denied that she was staunch and seaworthy and alleged on the contrary that she was old, rotten, leaky and unseaworthy, required proof of her location, denied that she was properly moored, denied that the steamer passed the location described at an excessive and dangerous rate of speed, denied that she caused extraordinary swells or that any from the steamer caused the scow to strike violently against the bottom or the dock where she lay, whereby her seams were opened, or that she was thereby damaged; the answer alleged that the scow, in addition to being rotten and unseaworthy, was negligently and improperly fastened and that the place where she lay was not a proper or safe place for the scow to be moored or fastened; it was further alleged that the steamer passed the place at a reasonable speed and in a careful and proper manner and in such a way as to do no damage to boats which she passed, or which were properly moored or fastened at the docks, and that the scow was damaged through negligence on the libellant’s part.
The testimony shows that the boat was about 10 years of age and in good condition. Her usuai spring overhauling had been somewhat delayed and nothing had been done in the way of caulking and overhauling since November, 1906; but before she encountered the swells, which are the subject of this action, she leaked so little that it was unnecessary to pump her daily. By a survey, held on the 20th of August, following the accident, it was found that the oakum had worked out of the sides, ends and bottom and the scow was leaking badly.
The Prosperity was a rectangular wooden scow with a level deck and vertical sides with inclined overhanging ends, rising on a sloping angle from a flat bottom. She was about 100 feet long, 31 feet beam, with 10 feet depth of hold. Her whole load was carried on deck and kept in place by bulkheads at each end, forming a cargo box about 75 feet long and 29 feet inside width, tier ordinary load was from 470 to 500 yards-, weighing about 500 gross tons. On this occasion .she was loaded with a cargo of about 380 yards of broken stone of which 100 yards were to be delivered at 158th street. When she reached there, she was at first placed on the outside of a sand scow lying fastened to the south side of the wharf and remained there for several days, probably the 8th, 9th and 10th of August. On the 11th, she was moved around to the north side, where she lay through the night outside of another barge, and she obtained a discharging berth the next morning by lying in a diagonal position, her bow in toward the shore and the stern outside of another barge. The tidal current commenced to run flood about 5 o’clock. She was thus made fast and commenced discharging, and was only partially finished when the accident happened. There were 5 other vessels fastened to the pier at the time.
The testimony of Mr. Kirby was particularly relied, upon by the claimant, who said he observed that the swells of the Hudson scarcely moved boats lying at the pier. This witness was a very competent naval architect, who designed the Hudson for speed and with a view of creating the least swells possible and doubtless was successful in a degree in the latter respect. He certainly was as to speed, because it appeared that the Hudson ordinarily made at least 16 miles an hour, as she was doing in this instance, notwithstanding stoppages at various landings on the river. He was called as a witness after having made certain observations on the 17th of October, 1907, when he measured the height of the swells the steamer made at the pier and he said that they were “exactly eight inches.” They were much higher than that in this case, sufficiently so to be dangerous to a vessel lying as the Prosperity was, with not very much water under her. Mr. Kirby also said that the people working on (at) the pier paid no attention to the waves made the day he took his observations. The testimony of the men working on the Bourne No. 3 was that when the swells from the Hudson came in on the 12th of August, they were obliged to stop working for fear they would be knocked overboard, a very different state of affairs from that which existed when Mr. Kirby ascertained his facts.
It is urged that the Hudson was operated in a reasonable everyday manner, the same as in the last two seasons of 1906 and 1907, upon the same timé schedule as had been long used by the steamers of the line and no accident followed, and liability should not result from the accident in this case as the Prosperity was placed in a precarious position and she was the only vessel at the wharf claiming to have received any injury from the swells on this occasion. It does not appear, however, that such operation was not attended by the creation of dangerous swells but rather the contrary. It is true that the Prosperity’s position was somewhat different from that of the other boats at the pier but it was necessarily so taking the facilities for discharging there into consideration. It can not be expected that vessels will so manage their work, as to receive extraordinary swells without harm. The vessel making such swells is responsible for their effects upon innocent vessels.
The case of The Daniel Drew, 13 Blatchf. 523, Fed. Cas. No. 3,565, cited by the claimant, can not now be regarded as an authority for a different rule. The more recent authorities (The Drew [D. C.] 22 Fed. 852; The Majestic, 48 Fed. 730, 1 C. C. A. 78; The Asbury Park [D. C.] 138 Fed. 617, affirmed 142 Fed. 1037, 71 C. C. A. 684; Id. [D. C.] 138 Fed. 925; Id. [D. C.] 144 Fed. 553; The Hendrick Hudson [decided February 28, 1908] 159 Fed. 581) impose a greater degree of care upon vessels which cause swells than was required in the Drew Case.
Decree for the libellant, with an order of reference.