100 F. 886 | N.D. Cal. | 1900
Libel for damages sustained by the scow schooner Mabel and Edith, as the result of having been collided with by the schooner Ne'ttie Sundberg, the libel alleging that such collision was caused by the negligent and improper navigation of the latter vessel. At the tipie of the collision the Mabel and Edith was
1. Even If it should be conceded that the Mabel and Edith was moored in an improper place, as is contended by the claimants, there is hut one conclusion to he drawn from the facts above stated, and that is that the Nettie Bundberg was in fault. Of course, a case might be presented when the fact of collision with a vessel moored in an improper place would not of itself afford satisfactory evidence of negligence upon the part of the moving vessel, hut the present is not such a case. Tin collision, as we have seen, occurred in broad daylight, at a point where there was ample room for (lie.Nettie Buud-berg to have passed without coming in contact with the Mabel and Edith. There is nothing in (lie evidence to warrant the belief ox* supposition that the course! of-the moving vessel could not have been readily changed, and, this being so, the conclusion necessarily follows that the collision could not have taken place, without negligence upon ilxe part of the Nettie Bundberg-, either in not having a proper lookout, which would have enabled her to have seen the Mabel and Edith in time to have avoided her, or, if she had such lookout, then in the failure to exercise due care to prevent the collision, after the latter was discovered. The fact of the collision can he accounted for upon no oilier theory than that the Nettie Bundberg was negligent in one or the other of the particulars just mentioned, and negligence in either constitutes a, fault, for which she must respond in damages under the law as administered in courts of admiralty. The general rule Is that, "whether the anchored vessel is in an improper place or not, the vessel in motion must avoid her, if practicable, and can only excúlpale herself by showing that it was not in her power, by adopting any practicable precaution, to have prevented the collision.” Green v. The Helen, 1 Fed. 923; The Clarita and The Clara, 23 Wall. Id, 23 L. Ed. 146; The Marcia Trihou, 2 Spr. 17, Fed. Cas. No. 9.062. The case last cited was a libel in admiralty to recover damages sustained by the sloop Diploma, arising from the fact of having been collided with by the schooner Marcia Tribou. In that case
“The position of the sloop is one of the most material points in this case, and upon the evidence which has been introduced I am of the opinion that she was anchored in the channel outside of the harbor master’s line, in an improper place, and must be held to have been guilty of negligence in so doing. I am further of opinion that the schooner was also in fault in not avoiding the sloop, notwithstanding that she was anchored in an improper place. * * * Both parties having been in fault, by the rule of admiralty law the damages and costs are to be borne by each in equal proportions.” v
2. The contention is made by the claimants that the Mabel and Edith was moored in an improper place, and it becomes necessary to consider this, because, if well founded, both vessels were in fault, and under the admiralty rule the damages and costs must be equally divided between them. The Marcia Tribou, 2 Spr. 17, Fed. Cas. No. 9,062; Green v. The Helen (C. C.) 1 Fed. 916; The Clover, 1 Low. 842, Fed. Cas. No. 2,908; The Milligan (D. C.) 12 Fed. 338; The City of Macon (D. C.) 20 Fed. 159. It is not claimed that the position of the Mabel and Edith was improper in itself, as being one in which there was risk of collision with vessels coming into or going out of the harbor, improperly navigated, nor, if made, could such a claim be sustained. But the board of state harbor commissioners has, in paragraph 27 of the rules and regulations adopted by it for the port of San Francisco, provided as follows:
“Vessels, while lying across the end of any pier or wharf, will be responsible for any and all damage to themselves or to any other vessel while occupying that position.”
The claimants rely upon this regulation in support of their proposition that the Mabel and Edith was moored in an improper place. By an act of the legislature of the state of California approved March 19, 1889 (St. 1889, p. 380), amending section 2524 of the Political Code, the board of state harbor commissioners is given authority to make “all needful rules and regulations not inconsistent with the laws of the state or of the United States in relation to the mooring and anchoring of vessels” in the harbor of San Francisco. It is settled that the local authorities have the right “to prescribe at what wharf a vessel may lie, and how long she may remain there, where she may unload or take on board particular cargoes, where she may anchor in the harbor, and for what time, and what description of light she shall display at night to warn the passing vessels of her position, and that she is at anchor, and not under sail.” The James Gray v. The John Fraser, 21 How. 187, 16 L. Ed. 108. In the case just cited it was said that such regulations “are necessary and needful for the convenience and safety of commerce.” See, also, The Clover, 1 Low. 342, Fed. Cas. No. 2,908. There can be no doubt, therefore, that under its authority to make all needful rules not inconsistent with the laws of the state or of the United States in relation to the mooring and anchoring of vessels in the port of San Francisco, the board of state harbor com
