This is a suit by the owner of a raft of pine logs to recover damages for running over and breaking up a raft by the steamboat Mary in navigating the Mobile river. The facts, as shown by the evidence, are substantially as follows: In August, 1902, the libelant had a raft of logs being floated from McIntosh Bluff, 65 miles from the city of Mobile, to said city. When near the Louisville & Nashville Railroad drawbridge, over Mobile river, the raft became unmanageable by reason of a sudden adverse wind (as testified to by the men navigating the raft), got athwart the river, and floated down broadside against the bridge; one end of the raft lodging on one bank of the river, and the other end on some driftwood near the other bank, thus completely blocking the channel and preventing the passage of vessels through the draw of the bridge. The raft had been in this position for several hours when the Mary came down the river, on her way to the city of Mobile, with a large number of passengers, a cargo aboard, and a barge in tow. In the meantime the men in charge of the raft had made some effort to get it adrift and away from the bridge, and called to their assistance a nearby tug, which fastened a line to one end of the raft and made a short and ineffectual effort to remove it. The tug then left the raft and went on its way. As the Mary approached near the raft, her master called to the men on it, saying something to them about the raft being in his way. They made no reply to him. They testified that they did not hear the call. The Mary approached the raft, touched it with her prow once or twice, and backed off a short distance, then came ahead again, and ran over it, and through the open draw span of the bridge, breaking the raft, and scattering many of the logs, some of which were subsequently rescued. The men on the raft were near its end, and not near that part of it struck by the Mary. The master of the Mary testified that, when he first came up to the raft, he thought he would “hitch onto it and pull it out of the way”; but when he called to the men on it, and received no answer, and seeing no effort being made by them to get the raft out of the way, he “got mad,” and determined to run over it and go through the bridge. The raft was estimated to be about 800 feet long, 75 feet wide at its widest part, and to contain about 1,400 logs. It was what was described and known by the mill and raft men (a number of whom testified in the case) as a “V raft.” It was constructed by placing 6 or 7 logs at each end of the raft, and fastening them together' with wooden binders and pins, which binders extended to the boom logs on the outside of the 6 or 7 logs mentioned, and were made fast to them. To these boom logs other boom logs were fastened at their ends, by lapping and securely pinning or tying
The contention on the part of the libelant is (i) that its conduct in permitting the river to become obstructed at the bridge by its raft was not negligent or otherwise wrongful, but was accidental, and that it was a temporary, and not an unreasonable, obstruction, and was not a nuisance; and (2) if it was a nuisance, and the Mary had the right to abate or remove it in order to effect a passage through the bridge, yet in exercising that right it was her duty to use ordinary care to do no unnecessary injury to the raft, and that running upon the raft and breaking it up was intentional and unnecessary. The contention of the claimant is that libelant’s raft was an unlawful one, being what is known as a sack raft, and that it was navigated in such a manner as to obstruct navigation; that the libelant, in obstructing or impeding the Mary’s passage through the drawbridge, became a wrongdoer, and created a nuisance, which the Mary had the right to remove; and that in exercising that right it resorted to such means only as were necessary and available. The claimant also objected to the evidence as to Avhat was known as a “sack raft,” and of a description of it, and con
“Navigable streams are as much dedicated to the use of rafts as to the use of other vessels. Rafts are included in the general term ‘vessels.’ If the privilege of use be abused, the persons so abusing the use are liable civilly for any damages they may occasion.” The Marthison (D. C.)
In answer to the contention of claimant that the court will take judicial knowledge of what a sack raft is, that the raft involved in this case was a sack raft, and that a sack raft is an unlawful raft, I will say. that, while courts do take judicial notice of matters of public notoriety and general information, such as public laws, historical events, the constitution and course of nature, main geographical features, and the like, and will generally take notice of whatever ought to be generally known within their jurisdiction, this court has not the judicial knowledge claimed for it in this instance, first, because there is no law of the
The counsel for the claimant has cited the case of The Athabasca,
“The facts in the present ease, as I collect them from the’ evidence, are that the libelant, having constructed a raft of logs at the foot of the Sault Ste. Marie, undertook to float and tow it down the river into Lake Michigan. The raft was about 1,200 feet long and 250 feet wide, and was inclosed in a sack boom; the logs lying crowded together in the boom, unfastened, except as they were surrounded and kept together by the boom. The latter consisted of long, stout, heavy timbers, strongly fastened together with chains. Across the body of the raft at different places were thrown two or three guys or cables, fastened to the sides, intended to keep the raft from spreading. There were two tugs in charge of her, one at the head and the other at the rear. The purpose of the tugs was to help the raft along, and to, pull and crowd it over to one side of the channel, in order to let vessels going up and down pass by, and otherwise keep it clear of collisions. Thus equipped the libelant started down the river with the raft. * * * About the time the raft entered the narrows, the Athabasca was coming up around a point, and had not yet seen the raft. She was signaled by one of the tugs in charge of the raft to check her speed, which she did, and proceeded along slowly as near the opposite shore as it was prudent to do. The raft was passing down with full rate of the current, the tugs at either end trying to pull and crowd the raft over to the other shore far enough to give room to the approaching vessel. The effect of this was to carry over the ends, leaving a large swell or bulge in the middle. * * * The swiftness of the current, the great weight and momentum of the raft, and its loose pouching structure, rendered it impossible for the tugs to n^ike any considerable impression on its course at that point. The Athabasca, not daring to go so far shoreward as to escape, as she approached the raft, collided with and broke it.”
The learned judge said:
“In my opinion, it was a hazardous undertaking on the part of the libelant to attempt to take a raft of the size, form, and structure of this one down*614 the river Ste. Marie, knowing the perils which were likely to arise from the almost constant passing of vessels, the swiftness of the current, and its occasionally narrow channels. It was an added negligence in the libelant that it did not take effective measures to warn the Athabasca before she came into the straits. Especially is this so because the approach of the vessel was known. The improvidence of the undertaking to move such a raft through this river, with the added failure to give proper notice to the Athabasca of the coming of the raft through the narrow portion of the channel, constituted the negligence to which the collision is attributable.”
The libel in that case was dismissed. In my opinion, the libelant in this case is entitled to a decree, and a reference to ascertain the amount of its damages; and it is so ordered.