The U. S. Grant

| E.D.N.Y | Apr 15, 1874

BENEDICT, District Judge.

This action is brought by Elisha A. Packer and others, the owners of a cargo of c.oal laden on board the canal-boat O’Rourke, to recover for its loss by reason of the sinking of the canal-boat while being towed through Hell Gate by the steamtug II. S. Grant.

The charge is that through carelessness on the part of those in charge of the tug, the canal-boat, in passing the Gate, was forced upon Flood Rock and so sunk, and the cargo lost.

The negligence imputed to the tug is failing to keep the proper channel in passing Flood Rock. The answer as an excuse sets up, that while passing through the Gate the tow encountered ice, which forced its way between the boat O’Rourke and the one alongside, and rendered the lines so that the bow of the O’Rourke was forced away and separated from the other boats, and therefore touched Flood Rock, without any negligence on the part of the tug.

The proofs show that the boat O’Rourke was sunk by her stern catching on Flood Rock, as the tow was passing the Gate; but the evidence wholly fails to show that the striking on the rock was caused by any such forcing off of the bow of the O’Rourke from the rest of the tow as is described in the answer. It affirmatively appears that the navigation of the tow was not impeded by any ice which forced itself between the O’Rourke and the boat alongside. But if any such accumulation of ice had occurred, as to prevent the proper management o£ the tow, it would not have excused the tug, for in such case it would be clear negligence in the tug to attempt to pass the Gate while so impeded. Another excuse, not set up in the answer, may be noticed, which is that after passing Astoria the tow encountered a large field of broken or mush ice, which made it impossible for the tug to keep in the proper channel, and, although her helm was put hard a-port, it forced the tow upon Flood Rock. The evidence scarcely makes out the presence of any such field of ice, but, if such a field did appear, the tug should have waited off Astoria, as she might have done, and allowed the ice to pass her; or if not, then she should have taken the ice in such a way upon entering it as would enable her to keep the proper channel.

Various charges of fault on the O’Rourke are made, none of which are supported by the evidence. A conclusion against the tug is therefore easily arrived at, upon the evidence of the circumstances attending the accident.

A similar conclusion would be justified by the evidence respecting an admission, that the accident arose from negligence on the part of the tug, made by the owner of the tug. As a general thing I put very little reliance upon the admissions of fault which are so often proved in tlfis class of cases. Here a peculiarity appears in this, that not only did the owner of the tug admit his liability to the owner of the O’Rourke, and to the owner of the coal, but it also appears that he after-wards paid the captain of the canal-boat for the loss of the boat, at tlie same time taking from him a written statement respecting the accident, calculated to be, and which has been, here used for the purpose of defeating the action brought by the owner of ‘the coal. Such a transaction throws great suspicion upon the case of the tug, and would of itself go far to justify a decree against her upon this „admission of her owner.

Let á decree be entered in favor of the libel-lant for his damages, with an order of reference to ascertain the amount of the loss.