The Jersey Central

221 F. 625 | 2d Cir. | 1915

PER CURIAM.

[ 1 ] There is dispute in the testimony as tp weather conditions at the Packer Pier when the two tugs left there. We are not satisfied that conditions were such that they should be held in fault merely for leaving the balance of their tow tied up there while they proceeded to make delivery of individual units. So far as the evidence shows, the tow was made securely fast, with no likelihood of swinging out and obstructing navigation before the return of one or -other of the tugs. This method of tying up at that dock and distributing therefrom has been in use for years, and unless there is some reason shown for doing so which does not now appear, we should not be inclined to hold that the company must keep a sentinel tug at the dock till the last barge is removed in anticipation of possible contingencies. For their mere absence at the time of the collision we are not inclined to hold the Philadelphia & Reading Railroad in fault. We are not satisfied that conditions existing when the tugs left were such that they should be held in fault for leaving.

[2] At some time after the tugs had left dense fog set in and a condition arose which has been presented here several times. Several vessels have been tied up at the end of a pier, in such a way as to interfere with the entrance into an adjoining slip, or have swung out with ■the tide so as to obstruct the fairway, or have been made fast side by side, so that their combined beam has practically extended the pier head a considerable distance into the river; and while these conditions existed a dense fog has shut in, so that their position became invisible to •navigating vessels. Reference may be had to Hughes v. Penn. R. R., 113 Fed. 925, 51 C. C. A. 555; The McCaldin Bros. (D. C.) 117 Fed. 779; The P. R. R. No. 5, 181 Fed. 833, 104 C. C. A. 343 (where a single vessel only was moored to the pier); N. Y., O. & W. R. R. v. Cornell Steamboat Co., 193 Fed. 380, 113 C. C. A. 306; The Express, 212 Fed. 672, 129 C. C. A. 208.

It is now established in this circuit that when such a situation exists —at least when there is more than a single vessel at the pier head—and fog signals indicate the approach of another vessel, there should be sounded some warning of the presence of the obstructing vessels; not navigating or anchored signals, but some other sound, to take the place of sight, whether it be given by beating a pan, or blowing a mouth horn, or using a watchman’s rattle or a megaphone. When the tug which had the tow in charge has been at hand, she has been held in fault for not giving such warning. When she is absent, reasonable care and prudence should be exercised by the master of a boat thus left tied up, when conditions indicate that danger threatens. The master of libel-ant’s barge was up and about, he knew how the fleet was tied up, that fog had set in since it had been tied up, he 1 saw nothing- of the two' tugs which had brought the tow up, and heard nothing, in the way of warning from them, although fog signals of navigating vessels were being sounded. The circumstance that he could see nothing of the tugs and heard no sound from them would indicate that they were following the usual custom, distributing the several units of the tow. Under those circumstances we think reasonable prudence would require him to be watchful for the safety of his own boat, and to sound such warning as might indicate her presence to approaching vessels.

Although the Jersey Central was moving slowly, she was not going at a rate of speed which would make it possible to stop, when she sighted a stationary object before she hit it. Her master puts the distance at which he sighted the pier at 100 feet, and it seems quite apparent that, if he had not hit the barge, he would have hit the pier. We think the District Judge properly held the tug in fault.

Decree" reversed, with half costs of this appeal to appellant against the libelant, and cause remanded, with instructions to decree in favor of libelant against the Jersey Central for half damages, without costs.