17 Blatchf. 132 | U.S. Circuit Court for the District of Southern New York | 1879
The only fault charged upon the Mary is her failure to sound her whistle. The evidence leaves no doubt on my mind, that the collision occurred inside the ends of the piers, and that the Mary was simply moving across the slip. The sailing rules require, that steam vessels, when under way in a fog. shall sound their steam whistles, and, when not under way, their bell. This evidently applies to vessels moored, or moving in the way of commerce, and not to those lying at ducks, or, ordinarily, to those moving about in slips. The object is not to notify vessels of their approach to the land, but of the proximity of other vessels in the waters they are navigating. The Shady Side was moving up the river. Her course was entirely outside the slip. A whistle sounded as a fog signal in the slip would tend to deceive rather than give information as to the actual facts. Such a signal would indicate the channel or fairway of the river, rather than a place inside the land, as a slip really is. What the Shady Side expected was information as to the waters she was to navigate, not the mooring places along the shore in the harbor. It was not a fault of the Mary, therefore, toward the [Shady Side, to omit the sounding of her whistle. The Shady Side was clearly in fault. While running in a fog, in a harbor liable to be crowded, she mistook her way and .ran into a slip at a speed which made it impossible for her to stop, so as to avoid a collision, after an obstruction came in sight. Such speed was certainly not moderate, under the circumstances, and indicated a want of caution, which is entirely inexcusable while navigating a harbor like that of New York, in a dense fog.
The real controversy in the case is as to the amount of damages. The libellant claims as for a total loss, because the expenses of repairs, added to the cost of raising and a reasonable demurrage, would exceed the value of the vessel when repaired. In this, I think, he is sustained by the evidence; but, if the boat had been sound and in all respects in a good condition at the time of the collision, the case would have been different. Neither the engine nor the boiler were seriously injured by the blow. The hull alone was hit. Had that been reasonably strong, it is scarcely to be believed that a cut into the side only, even as far as the keel, would have put her past repair. The fact. that, after she was taken out on the dock, her owner abandoned her, is evidence that, to his mind, her hull was not worth repairing. The mere mending of the break would not make an otherwise weak hull strong. Whatever damage happened to the engine and boiler, save in some unimportant particulars, was caused by the sinking. 'Phis seems to have developed the fact that the boiler was substantially worn out. and that the engine might possibly not be worth a new hull. The libel-lant. under these circumstances, is entitled to recover as for a total loss, less the value of what was saved.
The testimony as to value is conflicting and not altogether satisfactory. My conclusion, however, is. that the vessel was in a condition which made her liable to fail at any time. So long as she could be kept up. she would do reasonably good work, and make fair earnings. but. when she began to give out, she was likely to go altogether. She was nearly sixteen years old. and had been bought by the libellant, in Boston, for two thousand dollars, three years before. Somewhat extensive repairs were made on her after this purchase, and her market value in New York may have
The libellant may take a decree for three thousand five hundred dollars, with interest at six per cent, from March 16, 1S75. He is also entitled to recover his costs in the district court, but, as the claimant has been partially successful on his appeal, the costs in this court will be divided.