22 F. 859 | S.D.N.Y. | 1885
On the thirtieth of April, 1881, the libelant’s canal-boat Manitoba was lying across the end of a short pier at the foot of
The libel was not filed until April 17, 1883, nearly two years after the injury. By that time nearly all the persons who were on the bark at the time of the accident were beyond the reach of the vessel. The first mate, who was present at the time, was, however, procured and examined. While, under such circumstances, the libelant’s evidence must be rigorously scrutinized, and interpreted against him on all doubtful points, and while some of the testimony presents points, for criticism, I cannot, on the whole, doubt that some injury was caused to the libelant’s boat; and that it arose wholly from the fact that the bow’-line of the bark was not properly cast off, and that the-bark must be held liable, therefore, for her negligence in this respect.
It is urged that the claim should not be entertained, on account of the lapse of two years before the libel was filed, most of the bark’s witnesses in the mean time having passed beyond reach. It is shown that the bark during these two years had been in New York four different times, remaining from two to three weeks each time, and that the libelant, therefore, had opportunity to commence his suit earlier. Bor the libelant, it is shown that quite soon after the damage arose he placed his claim in the hands of his proctors, who reported to him that they were unable to find the bark; that he was afterwards absent from the state about a year; and that he caused the arrest of the vessel upon her first arrival here that became actually known to him. I do not know of any precedent for holding, nor do I think it would be reasonable to hold, that a claim is barred under such circumstances for no other reason than the possible loss of some testimony that might have been obtained by the respondents if the suit had been brought sooner. There has been no change in the ownership of the vessel, and there is no question of priority as respects subsequent lienors.. In a suit in personam the owners would clearly be liable; and any loss or inconvenience through the difficulty of procuring all the evidence they might desire would be felt as much in a suit in personam as in this suit in-rem. The difficulties arising from the partial loss of testimony through the discharge of seamen are of constant occurrence in admiralty causes; but these difficulties alone have never been
There is no sufficient evidence to charge the canal-boat with negligence contributing to the damage. She was discharging, as is to be inferred, in the ordinary manner, by lying across the end of the pier; and, in order to discharge from her after-liatch, the boat had to be brought down so that her bows projected some 30 or 40 feet below the line of the pier. When the bark was about to be moved out by the tug, the circumstances of the situation were not such as to indicate any danger to the canal-boat, or naturally or reasonably to call upon her to remove from her position. That this was understood by both is to be inferred from the fact that no notice was given by the bark that she was about to remove, or that any further precautions were required on the part of the canal-boat. There was, in fact, plenty of room for the bark to be pulled out astern in the mode attempted, and no injury would have happened had the lines been properly cast off. The case is wholly different, therefore, from that of The City of Paris, 14 Blatchf. 531, whero the tug-boat had notice of danger to herself, was improperly secured, and, by her own change of position, contributed to the collision. It is equally unlike the eases of The Canima, 17 Fed. Rep. 271, and Shields v. The Mayor, 18 Fed. Rep. 748, where the bows projected beyond the pier at which steamers were accilstomod to land. Decree for the libelant, with costs.