The Lady of Gaspe, 276 F. 900

The Lady of Gaspe

276 F. 900 | 2d Cir. | 1921

HOUGH, Circuit Judge.

The claim made on this appeal is that, admitting the lighter did obstruct the entrance to the pier, admitting that she might justly be called an obstruction to lawful navigation, and admitting that she had received warning and orders to move, yet nevertheless she was (1) not an outlaw; and further (2) was not required to move unless those who wanted her out of the way furnished a tug for her convenience.

*902[1] We are not aware of any circumstances under which a vessel for purposes of civil suit'becomes an “outlaw”; it is always necessary for other vessels having to do with her to exercise care according to the circumstances. The Westernland (D. C.) 24 Fed. 703. But one even exercising care does not insure the safety of those who are persistently and wantonly exposing themselves to danger. The carelessness or obstinacy of the person ultimately injured often furnishes the background or groundwork which constitutes the circumstances measuring the care demandable from others.

[2] Pushed to its logical conclusion, the position of libelant is this: My lighter was a menace to navigation, therefore the Gaspe could not navigate until that menace was removed. This, under The Etruria (D. C.) 88 Red. 555, is not the customary law of this harbor. If it were, one vessel might block the entrance to a large slip or choke a narrow channel as long as she liked, or until the harbor authorities were roused to interfere. No hard and fast rule can be laid down; every case will always depend upon its own set of circumstances. In this case it was not impossible, but very difficult, for the Gaspe to get into her slip unless the lighter moved. Therefore it is claimed that a tug should have been furnished to move her.

[3] How a vessel is to move or to navigate depends upon her habitual method of- propulsion. In The Westernland, supra, the schooner which blocked the steamer’s exit from a slip could not move without assistance; in this case libelant’s lighter could move without any other power than the muscles of her crew. She was in the habit of so moving or navigating, and it was no excuse for remaining where she was that, if the easiest thing were done (i. e., move up the slip) she might get “blocked in.” That would have been inconvenient, perhaps even expensive, but it does not justify remaining a wilful menace to navigation.

■ [4] Inasmuch, therefore, as the lighter was able to comply with a reasonable warning by her habitual method of wharf-side navigation, it was a fault in her to refuse so to do. It was not a fault for the Gaspe to come in contact with this obstinate lighter. That, also, is a question of degree; but there is no evidence to show that the contact was not as light and gentle as the circumstances required, there is no evidence of.hreaking the lighter’s hull. ,

■ [5] If we were satisfied that the Gaspe had an anchor hanging from her cathead, or otherwise unusually projecting from her side, she likewise would be liable under The Sontag (D. C.) 40 Fed. 174, and The Overbrook, 142 Red. 950, 74 C. C. A. 120. No vessel can lawfully navigate around wharves and piers with such a dangerous appendage. But there is very little evidence on this subject; the result thereof is very doubtful; the point was given no attention in the opinion of the Court below, and fault in the carriage of her anchor is not specifically assigned for error in this Court.

Therefore we disregard it, and direct that the decree appealed from be affirmed, with costs.