6 F. 192 | E.D.N.Y | 1881
This is a proceeding in rem to enforce a lien against the tug William Murtagh for the amount of the damage caused to the sloop Bolivar for running upon a sunken canal-boat named the Anna Maria, which at the time lay under water near the mouth of Gowanus creek, in the harbor of New York. The evidence shows that the Anna Maria, on the sixth day of April, had been taken in tow by the William Murtagh to be towed from Elizabethport to New York with several other boats. While prosecuting that voyage this boat was found to be sinking. Effort was at once made by the tug to get her into a place of safety, but before she could be got upon the flats she sunk in the channel-way. After the Anna Maria had gone to the bottom the tug proceeded on her voyage with the other boats. On the eighth day of April the sloop Bolivar, while navigating the channel in question, ignorant of the presence of the canal-boat in the channel,—
In disposing of this case I assume that the sinking of the boat arose from her unseaworthy condition; and I also assume — without intending so to decide on the present occasion — that it was negligence on the part of the tug to attempt to tow such a boat across the harbor of New York, and that such negligence was one cause of the boat’s sinking. I consider tlie case as turning upon the question, whether, with these assumptions, the tug has been shown to have been under the obligation to remove the wreck, or so buoy it as to give notice of its presence. Upon this question my opinion is adverse to the libellant.
The evidence shows beyond dispute that the canal-boat went down in spite of all reasonable exertions on tlie part of the tug to get tlie canal-boat to a place where she could sink and be out of the channel; that after the canal-boat sunk the tug proceeded on her way with tlie remainder of the tow, without any objection on the part of the master of the canal-boat. The damage sued for occurred on the eighth of April, after all connection between the tug and the canal-boat had
In this case, sometime prior to the damage in question, all connection between the tug and the canal-boat had been terminated, under circumstances justifying such action on the part of the tug. Because her connection had been so terminated under such circumstances, I am of the opinion that at the time of the damage to the Bolivar the tug was under no obligation to prevent the canal-boat from being a cause of damage to other vessels navigating the channel wherein she was sunk, and consequently is not liable for the injuries sustained by the Bolivar. It is said that if such be the rule an inducement is held out to tugs to abandon their tows at the earliest moment, in all cases of disaster, in order to escape further responsibility; but it is not seen that such a consequence will follow from a case like the present, where it is proved that the tug was justified in terminating her connection with the canal-boat, because every reasonable effort had been made on her part to get the canal-boat to a place of safety before she sunk, and no requirement was made by the master of the canal-boat for any further effort in his behalf. The tug, having done all that it was possible for her to do to aid the canal-boat in its distress, had the right to terminate her connection with the canal-boat, there being a master of the canal-boat there present; and, having so terminated her relation with the canal-boat under circumstances justifying such action, all obligation in regard thereto ceased and was at an end.
The libel must therefore be dismissed, and with costs.