14 F. Cas. 48 | D. Mass. | 1852
The libellants’ vessel having, while at anchor in a barbor, been rim foul of by the schooner, when the weather was not so heavy that she could not ride safely at her anchors, the schooner is prima facie liable. The explanation given is that, having taken a pilot, she was getting under way in the usual manner. She took up her large anchor, and liad heaved in to the fifteen fathom shackle of the smaller chain, when the vessel got loose and drove into the barque.
Much stress is laid on the fact that a pilot was on board. This is not, in itself, a good defence. It only goes to show care on the part of the owners. If the defendants chose a prudent and skilful master, and a prudent and skilful pilot, they have certainly done all that they could personally do to insure the safety of their vessel, and its proper management. But if that prudent master, or pilot, behave imprudently or unskilfully, in the particular instance, the defendants will be answerable, unless exonerated by virtue of some statute.
Let us see, then, whether the defendants’ agent exercised that ordinary care and skill which the law requires. It is said that the schooner was got under way in the usual manner. In determining what is usual, we must look to the circumstances. One important circumstance is, that the schooner’s small anchor, when let go the night before, had dragged, so that they were obliged to let the large one go.
Another material fact is, that the schooner was unquestionably short-handed; the mate and one man were sick below, and the cook had been so, and although about the deck, took no part in the active work of the vessel. The master, knowing all this, went ashore, leaving orders to get up the large anchor. This was injudicious. — so say the experts; and. independently of their testimony, I should not hesitate to pronounce the master’s conduct imprudent.
The master then comes on board with the pilot. The latter, not knowing that the vessel had dragged the night before, gives the ' order to heave short. The captain ought to' have told the pilot that the anchor had failed before; that with a larger scope, it had dragged. There was no immediate necessity of heaving short. The pilot’s boat had gone ashore for two hands. I suppose they intended to wait for these men. Why heave short before tliey came?
If those two men had been on board, and the vessel had struck adrift, as she did, it is probable that the collision would not have happened. Those men could have got up a jib, as the testimony says, in two or three minutes, and the schooner could have been sheered off. Then, as to getting sail on her. the evidence proves that the proper mode of getting a fore-and-aft schooner under way, where there is a vessel or a shore under her lee, is to get up sail, the mainsail at least, before heaving short. I think, therefore, the schooner was to blame.
The only remaining question is, whether the barque was also in fault. It is contended that she took a dangerous position. She anchored to leeward of the schooner, distant from 125 to 150 fathoms. The weight of evidence is, that it was a proper position. One witness gives a reason for thinking it proper to anchor to leeward, for there is no dispute that the distance was ample. He says, that the great danger of drifting, arises upon a change of wind; and of course, on a change of wind, the relative position of the vessels would be altered, and the windward vessel would not drift in the direction of the other.
On the whole, I think the schooner alone is in fault. The amount of damages is to be settled by an assessor, unless the parties can agree.