The Libby Maine

3 F.2d 79 | W.D. Wash. | 1924

NETERER, District Judge.

The respondent claims that under sections 9913, 9914, C. S. of Wash., the flotilla of rafts was a public nuisance, in that it obstructed navigable waters of the harbor, and that under The Admiral Cecille (D, C.) 134 P. 673 (this district), no permit having been obtained, the libelant was clearly at fault, and may not recover.

The mere fact of anchorage without written permit is not a bar, where the injury was the result of the negligence of another.¹ The libelant, however, was clearly at'fault in anchoring the flotilla and not giving signals, as provided by article 15 of the Inland Navigation Rules (Comp. Sf. § 7888). Rafts are as great, if not a greater, menace to navigation, as ordinary water erafts, and must be included within the general term “vessels.”²

In a recent case in the Eastern district of New York, The Southway, 2 F.(2d) 1009, 1924 A. M. C. 1225, it was held that, when barges are lying at a stakeboat in a fog, each barge must ring a bell to notify passing vessels of the size of the fleet. -Ward, Circuit Judge, in The Cohocton, 299 F. 316, 1923 A. M. C. 737, held to the same effect. Precaution on the part of the, tug in charge of -the rafts,, under the circumstances, was necessary. See article 29, Inland Nav. Rules (Comp. St. § 7903); Erie & West Trans. Co. v. City of Chicago, 178 F. 42, 101 C. C. A. 170. A raft of logs is much larger than a barge, and a flotilla, of course, increases the size by the number of rafts. This flotilla, not giving fog signals, was clearly a menace to incoming vessels.

The Libby Maine, entering the harbor in this fog, should have navigated more cautiously — if uncertain, should have dropped anchor until the fog lifted — and is at fault in proceeding at the speed at which she was moving. The Southway, supra; The Watuppa (C. C. A.) 283 P. 8.

Both the parties are at fault, and the damage, should be divided. Libelant may have a decree for one-half of the damages; neither party to recover costs.

1 Fowler v. Harrison, 39 Wash. 617, 81 P. 1055; Switzer v. Sherwood, 80 Wash. 19, 141 P. 181, Ann. Cas. 1917A, 216; Cornell Steamboat Co: v. Phœnix Const. Co., 233 U. S. 598, 34 S. Ct. 701, 58 L. Ed. 1107; Swain v. Mehl, 200 Ill. App. 296.

2 The Mary (D. C.) 123 F. 609; U. S. v. Marthinson (D. C.) 58 F. 765; Seabrook v. Raft of Railroad Cross-Ties (D. C.) 40 F. 596; U. S. v. One Raft of Timber (C. C.) 13 F. 796; Charles Barnes v. One Dredge Boat (D. C.) 169 F. 895.