243 F. 216 | E.D.N.Y | 1917
The libelant chartered the scow Stella to the Merritt & Chapman Derrick & Wrecking Company for ordinary lighterage service, upon oral request over the telephone, on or about the 29th day of October, 1915. The Merritt & Chapman Company took the Stella into their possession at Fifty-Fourth street in the North River, and the master or captain of the Stella, who was on board at the time and was hired by the libelant, went along with the boat. She was loaded with a cargo of machinery or engines for a steamer lying upon the north side of Pier 10, on the Brooklyn side of the Fast River.
Upon arriving in the Fast River, it appeared that the slip between Piers 9 and 10 was filled with boats delivering cargo to this steamer, and the Merritt & Chapman Company tug left the Stella at the outer end of Pier 9. This occurred upon Friday, October 29th, and the Stella remained at the end of this pier until Tuesday morning, November 2d. In .the meantime she had had no opportunity to deliver her cargo to the steamship, and on the morning of November 2d, the captain of the Stella was told by the superintendent of the company in control of Pier 9, to drop his boat around the end of the pier and inside the slip, as information had been received that a steamer was to he docked in the slip between Piers 8 and 9. The captain did not see fit to follow this instruction, and at about 11 o’clock on that day the steamer Vaubati appeared, proceeding through Buttermilk Channel and up the Fast River in control of four tugs.
The officers of the Vauban were on board and her captain was upon the bridge, hut she was not under her own steam, and a captain from
The facts show that all the way from Pier 30 up to Pier 10 an exceedingly strong wind was blowing. The Fred B. Dalzell and the Dalzelline were both holding the vessel away from the piers, and the Dalzelline was actually being dragged stem foremost. One of the captains stated that she was used as a sort of sea anchor. But, inasmuch as the dragging force was the wind, it is evident that the Dalzelline directed her. course into the wind, instead of being dragged directly astern of the Vauban. When off Pier 10, various parties observed the Stella lying on the head of Pier 9, and with her bow projecting a few feet into the slip between Piers 8 and 9. The captains of the four tugs testify that they began a continuous blowing of alarm whistles, in the form of short toots, for the space of 20 minutes, in order to attract the attention of the Stella’s captain and to cause him to move his boat. No fire boat or police boat or fleet of salvage tugs answered this prolonged alarm, and whatever may have been the duration of the operation, apparently every one in sight or hearing ascertained that the
According to the captains of the four tugs, a tremendous squall or wind of hurricane force bore down upon the Vauban at this time from the west. They all agree that this wind forced the Vauban steadily over, in spite of the efforts of the four tugs, until the Vauban brought up on the forward port corner of the Stella, at a point just aft of amidships on the starboard side of the steamer. These witnesses testified that the Vauban had been taken up the river by the tugs to a point where her bow was opposite Pier 8, and was actually carried hack by this west wind, so that her bow swung clear of Pier 8 and into the slip, where she was placed in her berth along the southerly side of Pier 8, without injury to the steamer.
Pier 8, Bast River, on the Brooklyn side, is nearly opposite Pulton Market in New York, and the offices of the Dalzell Company are on the New York side of the East River at a point where a full view could be had of the occurrence on the Brooklyn shore. While the steamer was in contact with the Stella, Mr. Dalzell, who had j,ust come into his office, observed her position and the difficulties caused by the heavy wind against which the tugs were struggling with the vessel. He went downstairs and sent another tug, the Guiding Star, which arrived in time to help place the Vauban at her dock. But Mr. Dalzell did not hear the whistling and did not see the movements of the vessel prior to the time when she came in contact with the Stella.
The servants of the company which occupied Pier 8, and to which the Vauban was consigned, had cleared the steamer’s berth earlier in the day, and one of them had gone over to Pier 9 and gotten the captain of the S’tella out of his cabin in order to tell him to make way for the Vauban. This witness testifies that the captain of the Stella appeared to be intoxicated. At any rate, the captain of the Stella, who testified that he was a teetotaler, even though his appearance in court would cast suspicion upon that claim, made some profane answer and went back into his cabin, where he apparently remained, and ignored or did not hear the whistles of the fleet of -tugs, and was brought to a realization of the presence of the Vauban by the blow of the collision, which knocked him over, laid open his head, and would of itself be sufficient to account for his dazed condition from that time on. Pie evidently took no part in the movement of the steamer into the slip, but remained upon his vessel until she was towed away and ultimately taken to a dock for repairs. He has remained as captain of the vessel until a few days previous to the trial, and no explanation was given by either side as to the manner of his leaving that employment, nor as to the condition in which he appeared in court.
But beyond this is the proposition presented by the statute just referred to. The word “adjacent” means lying next to or adjoining. An “adjacent pier” to any particular pier must mean the next pier; that is, the pier on either side of the adjacent slip. The statute says that, if a boat is lying at a wharf, it shall be liable for damages by a vessel entering an adjacent dock or pier. As was said in the case cited, this does not make it illegal to lie at the end of a pier, nor can a vessel be held responsible for a collision out in a river with a boat which is not entering the adjacent slip.
The court finds from the testimony that the 'Dalzell tugs undertook to move the steamer up river at a time when, for the entire voyage, the wind was blowing at the rate of from 50 to 55 miles an hour. If the tugs were able to handle the Vauban on the voyage up the river, they could have proceeded further with the steamer in case it proved dangerous to enter the slip. The strong and sudden squall from the west caused the maneuver in question: but, according to the oral testimony and diagram made by the Dalzell captains, the direction from which they claim this squall came would have been the northwest. A west wind, as was inadvertently stated by the captain of the Raymond,
The libelant may have a decree for half damages against the owners •of the Dalzell tugs. Inasmuch as the'pilot on the Vauban did not interfere or prevent the maneuver, no costs will be awarded the Vauban, but the libel against the Vauban will be dismissed. The libel against the Merritt & Chapman Company will be dismissed,- with costs.