251 F. 271 | 2d Cir. | 1918
October IS, 1910, at about 8:30 a. m., the tug John D. Cordts, belonging to the Steamboat Company, started with a hawser tow consisting of 21 boats from its stakeboat in the North River, hound upstream. The boats were of irregular sizes, and some were loaded and some light. The wind being from the northwest, the light boats were properly put on the port side of the tow to protect
At about 10 p. m., when the tow was opposite Ft. Washington Point and on the Jersey side of the river, the lines of the boat Intrepid, which was astern of the starboard hawser boat, parted and she swung out, taking with her six. boats behind her, by breaking their side, lines and drifting with them on the ebb tide downstream and under the influence of a moderate northwest breeze diagonally across from the Jersey to the New York side of the .river. When they had reached the north end of the anchorage ground for small vessels inside the pier head lines between 158th street and 132d street, the master of the Fortuna threw off his lines from the boat Donovan, and that boat, with the Intrepid, drifted together into the anchorage grounds between the anchored boats and the New York shore, finally landing near 135th street. The boats Fortuna, Nolan, McClellan, Sunnyside, and No. 16 remained together. The Nolan and McClellan had no anchors; the Sunnyside had an anchor, which was not dropped; the Fortuna dropped hers, and shortly after Scow 16 dropped hers, hy which anchors the flotilla was held for about an hour. • Then, the anchor line of the Fortuna being cut, as it is supposed, by contact with something on the bottom, the flotilla began to drift again, but fetching up from time to time, until at last it drifted over and submerged the motorboat Rita, anchored near 147th street.
The owner of the Rita filed this libel to recover his damages against the Cornell Steamboat Company, which brought in the lighter Intrepid and the boats Sunnyside, McClellan, and Nolan under the Fifty-Ninth rule (29 Sup. Ct. xlvi). The petition was defective in making no allegations of negligence; but, as the claimants of the boats answered and went to trial on. the merits, the District Judge properly held they had waived the objection. There was no charge in any pleading that the flotilla was improperly -made up and the District Judge found that it was not. One witness testified that an extra direct strain was brought on the starboard hawser of the tug and a lateral strain on the lines of the Intrepid. The tug’s hawser did not part, and we are not satisfied that this extra lateral strain was the cause of the parting of the Intrepid’s lines.
The court held that the Intrepid’s lines, though large enough and so apparently sound as to malee the examination of the Steamboat Company a reasonable. one, were really unsound at the core, and that this was the proximate cause of the injury. He then stated that the next proximate cause was the failure of the McClellan and Nolan to be provided with anchors, of the Sunnyside to drop hers, and of the Fortuna and No. 16 to drop theirs sooner. Accordingly he directed a decree in favor of the libelant against the Intrepid, Sunnyside, McClellan, and Nolan, which were the only boats proceeded against.
We concur in the -finding that the Cornell Steamboat Company in making up the tow exercised ordinary and reasonable care in examining the Intrepid’s lines and was not at fault because of their actual
The decree, modified in the foregoing respects, is affirmed, with interest and costs to the libelant against the boats A. C. McClellan and J. S. Nolan. No costs to the claimant of the Intrepid, or to the Cornell Steamboat Company, or to the claimant of the Sunnyside.
