91 F. 171 | N.D.N.Y. | 1898
The task of the Julia was of the simplest character. She undertook to tow the canal boat six miles from Troy to Albany in broad daylight down a wide river and through piers which were 200 feet apart. The canal boat was helpless, being wholly under the control of the tug. That, in such circumstances, the tug swung the canal boat against the bridge abutment would seem to be sufficient to establish her negligence. It is true that the river was unusually high and that a brisk wind was blowing from the northwest, but these were conditions for the tug to deal with, not the canal boal. The master of the tug was required to know the capacity of his boat in the then existing state of wind and water. If unable to handle six boats safely he should have taken a less number. He knew,’ or should have known, whether it was prudent to venture out with six boats, and the Allen was justified in relying on his judgment. He knew the character of the wind and that it was liable to increase and shift at that season of the year. It would seem, then, considering the fact that the Julia is one of the smallest and weakest of the river tugs, that it was negligent to attempt to take so large a fleet and, in any event, there was a lack of prudence in making v. the tow with two lumber boats, thus offering a broadside of 200 feet by 11 feet to the wind. Mason v. The William Murtaugh, 3 Fed. 404.
Such an accident, as this cannot happen without some one being to blame and no one is shown to be at fault here but the tug. She was negligent either in the making v. or the navigation of the tow. It is immaterial which. The attempt to show that the collision was the result of a vis major is not sustained by the proof. There was a sudden shifting of the wind, but nothing occurred which prudent navigation might not have anticipated and avoided.
The highest velocity reached by the wind on the afternoon in question was 29 miles per hour, and even assuming that the collision occurred at this time the situation was not one that presented insurmountable obstacles to a prudent navigator had due precautions been taken. The accident was not inevitable. It is safe to say that not a single well-considered case decides that such circumstances as are here proved bring the case within the rule of inevitable accident. Union S. S. Co. v. New York & V. S. S. Co., 24 How. 307, 313. That the problem presented no unusual difficulties is demonstrated by the fact that the tow just ahead of the Julia went down without a mishap.
But it is- asserted that the canal boat was at fault and this is urged as a defense by the tug. The libel is by the owner of the cargo. The canal boat is not a party to the .action. She had no motive power -of her own and depended wholly upon the tug to propel and steer
The libelant is entitled to a decree.
