42 F. 687 | N.D.N.Y. | 1890
Ón June 16, 1888, .the schooner Ellsworth, loaded with stone and drawing about 13 feet of water, was taken in tow by the Pierre-pont at' the quarry dock, Grindstone islan’d, St. Lawrence river, bound .for Chicago. While passing through what is known as the “Middle Channel ” between Grindstone island and Seven Pine island, the schooner struck a sharp pinnacle rock, and was injured. This rock was 450 feet from Seven Pine island, the point which occasioned the injury being about 11 feet from the surface of the water. If the accident occurred in the regular channel,- where no obstruction was known to exist by those engaged in the navigation of the river, the libelants cannot recover; if it occurred outside the regular channel, the steamer was at fault.
The weight of testimony clearly establishes that the rock in question was unknown to pilots whose business it was to navigate the St. Lawrence river. The government chart shows 25 feet of water at this point, and there is hardly a dispute that prior to the accident the regular channel was supposed to extend much nearer than this to Seven Pine island. Within 200 feet of the island there is a shoal, and there is reason to believe that some of the libelants’ witnesses mistook this shoal for the venue of the accident. If the captain of the Pierrepont, who took ranges at the time the schooner struck, is correct in locating her position at 450 feet from Seven j?ines, the proof is overwhelming that she was in the regular channel when the accident happened. But, even though some of the libelants’ witnesses did have knowledge of the rock which occasioned the injury, it was a knowledge gained rather as fishermen than as pilots. If known at all, the knowledge was confined to two or three, and was not- imparted by them to river pilots generally. It is well settled that a steamer is not negligent when the tow strikes an unknown obstruction in a regular channel. The Angelina Corning, 1 Ben. 109; The Mary N. Hogan, 30 Fed. 927, reversed on the facts, 35 Fed. Rep. 554; The James A. Garfield, 21 Fed. Rep. 474; The Willie, 2 Fed. Rep. 95. The Pierrepont was neither insurer nor common carrier. She was bound to exercise ordinary care, skill, and prudence, and was liable only if she failed in these respects. The burden is upon the libelants to establish negligence, and they have nót done so. The accident might have happened, to,.any one of the river .men produced at the trial, and should a similar accident happen in the future, still further south of Seven Pines, it would occasion no. more surprise. The libels are dismissed, with costs.