21 F. Cas. 86 | S.D.N.Y. | 1869
This is a libel filed by Ambrozio Ralli, the owner of the Austrian ship Figlia Maggiore, against the British steamship Russia, to recover for the damages caused to the Figlia Maggiore and her cargo, by a collisiorubetween her and the Russia, which took place in the harbor of New. York, off the Battery, on the 25th of May, 1869, about 11 o’clock, a. m. The Fig-lia Maggiore arrived in port the day previous, from Marseilles, with a valuable cargo, and came to anchor off the Battery, at a place designated by her pilot, and was at anchor at the same place, at the time of the collision. Tlie Russia was coming in from sea, on a voyage from Liverpool, and was bound to her wharf at Jersey City. The libel alleges, that the Figlia Maggiore was anchored from three hundred to four hundred yards distant from the Battery, and at a place usual and customary for vessels to anchor. The tide was ebb. and the weather was clear. The Figlia Maggiore’s stern was tailing down towards the direction from which the Russia was approaching. The stem of the Russia struck the port side of the Figlia Maggiore between the main and mizzen rigging, angling somewhat forward, and crushed her in, so that she sa*nk to the bottom in less than ten minutes, with all the property on board of her. The libellant, as carrier of the cargo on board, having possession of it at the time it was sunk, claims to recover in this suit for the damage to it,' as well as for the damage to the vessel and her appurtenances, and for loss of freight, if any.
The defence set up in the answer, to show no fault in the navigation of the Russia, is, that, owing to the crowded state of the mid-
There is nothing to show that the Figlia Maggiore was anchored in an improper place. On the evidence, she was anchored in a customary place of anchorage, and in a place not forbidden by any state law or city ordinance. As to any general regulation made by the harbor masters, it is not shown that those charged with the anchorage or management of the Figlia Maggiore were notified of any such regulation, or had been warned not to allow their vessel to remain where she was. As she had taken her anchorage in a place not shown to have been in itself unsafe or improper, as respected the navigation of other vessels, a failure on the part of the proper harbor master to notify her to remove from such anchorage must be regarded as a waiver, in her favor, of at least any general regulation, of which she was not, in fact, notified, which forbade her anchoring at the place where she was anchored.
Of the various other defences set up in the answer, none are made out. Those on ; board of the Figlia Maggiore did not neg- lect to take any measures which it is shown they could have taken to prevent or avoid the collision or its consequences. The allegation, in the answer, that the Figlia Mag-giore would not have received the damage actually sustained, if she had been tight and strong, is not true in the sense stated, nor is it any defence in that sense. She had just come in, in fair seaworthy condition, from a long voyage; and she was entitled, in law. to have the navigation of the Russia, in respect to her, regulated by some other standard than her capacity to successfully resist, at anchor, a blow from the Russia in motion. Amoskeag Manuf’g Co. v. The John Adams [Case No. 338].
The service on the claimants of the attachment issued against the libellant by the state court after this suit was brought, can in no manner affect this suit in rem against the Russia.
One more point, raised in the answer, remains to be noticed. It is, that, as both of
In the present case, no reasons exist why this court should decline jurisdiction. The case !.s one of collision. The Russia has been arrested within the jurisdiction of this court The collision took place in the harbor of New York. Several of the witnesses on both sides belong in New York, and were not on board of either vessel. There is no special question arising under the local laws either of Great Britain or of Austria to be be determined in this case. These consid
. There must, therefore, be a decree for the libellant, with costs. The reference to ascertain the damages will include damage to the cargo as well as to the vessel, the former being claimed in the libel to be recovered by the libellant as carrier in possession at the time the damage was done. The Commerce, 1 Black [66 U. S.] 574, 582; The Commander in Chief, 1 Wall. [68 U. S.] 50-52. ¡ j I