The M. D. Wheeler, 100 F. 859

The M. D. Wheeler

100 F. 859 | E.D.N.Y | 1900

THOMAS, District Judge.

The master of the claimant’s tug, the M. D. Wheeler, agreed to tow a schooner to Oropsey & Mitchell’s wharf, at Gravesend, near Bath Beach. On Thursday, April 20, ÍS99, at about 2 p. m., while approaching the wharf, the schooner grounded; and when her head was some 20 or 25 feet away from the dock, and her stern still further away, the tug abandoned her, whereby she was left helpless, although there was an increasing flood tide, which at its full strength, about an hour thereafter, would offer some chance of getting her off. The master of the schooner protested against this desertion. Whether it was the contract or duty of the tug to place the schooner at the end of the wharf need not be determined. It was certainly the tug’s duty to remain with her after she went aground, or attempt to put her in a position of safety; and the failure to do so is an approximate cause of the schooner's subsequent listing and filling, and the resulting damage. But did the master of the schooner contribute to the injury? After the schooner went aground, the abandonment of her by the tug was negligent, because it was inferable by the tug’s master that injury might flow from that condition. Should the master of the schooner have drawn the same inference? If so, what did he do to avoid the threatened injury, or what could he do? Shortly after she went aground, Forward, her master, who was then absent, arrived. It was then about 3 p. m., and within an hour of high water. He could not discharge her cargo of laths without a customs permit, *860and lie went away for the purpose of obtaining tbe same, did not return until about 7 o’clock in tbe evening, and thereafter went to bed. Between 12 and 4 o’clock be awoke, and found tbat tbe vessel was full of water. around bis bertb, and tbat she bad listed. Some of ber cargo of latbs on the deck was swept off, and be put a plank ashore and began discharging the deck cargo, in which employment the crew continued for a day or two following. On Monday tbe tug Wheeler was again called to pump up the schooner, for which she was separately paid; and thereupon the tug set tbe schooner up to tbe dock, where she was discharged. This was what tbe master of tbe schooner did do, and nothing done by him was in its nature calculated to avoid the danger threatened at tbe time tbe tug deserted tbe schooner. If the tug was negligent in failing to apprehend tbat the schooner was left in a dangerous position, whereby she might list and take water with injurious results, why should tbe master have failed to draw tbe same inference? And yet he did nothing to avert tbe perils, but calmly went to bed and slept until tbe water gathered threateningly about him, when he put forth the proper energy to save, the cargo. Such energy was due from him at 3 o’clock on the previous afternoon. If he could not have obtained the services of a tug to get the schooner off at high water, as it is probable he could not, he could have taken steps to lighten the cargo or to unload the ship, or to have the tug stand by and keep the schooner up, or he could have taken steps to make fast his deck cargo, or perchance have used ropes to keep the schooner from listing. It is not for the court to point out what should have been done, but it is sufficient that the master was not privileged to fold his arms and to go to sleep. Tf the tug was negligent, the master was also, for the same precise reason. Hence the, damages and costs will be divided.