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Pas 3 3 a MARITIME LAW. COLLISION—MUORING OF VESSEL—SP ACE OC- CUPIED — LOCAL ORDINANCE — VESSEL MOORED—TUG AND TOW—NEGLIGENCE. The Nicholson and the Adams. District Court, N. D. New York. 1886. If a local ordinance permits the mocring of vessels, two abrenst, and if the two together do not project as far into the river as a single vessel of the class constantly oc- cupying the same spnce, the veasel at rest cannot, by reason of the circumstance that she is moored as xforesaid, be charged with negligence in being moored in an improper place. 5 A tow is in fault if, in threatening weather she enters a narrow fairway, filled with ves- sels, with her head eails insufficiently secured, and, if this fault contributes to pro- duce a collision, she is chargeable with negligence. The degree of care required on the part of the tug must, obviously, be measured by the condition of tow. ‘To tow a large and deeply laden schooner up a narrow and obstructed channel, at the rate of five or six miles an hour, with « hurricane blowing, and the tow’s sails unfurled, is not good sea- manehip, and, if this lack of care contributes to a collision, she is chargeable with negli- gence. In Admiralty. Action in rem, against tug and tow, by the owners of a vessel moored in a river. George Clinton, for libelant. H. C. Wisner, for the Nicholson. George S. Potter, for the Adams, Coxe, J. The libel in this action is filed by John Wimett, the owner of the canal boat R. Webb Potter, against the schooner Elizabeth A. Nicholson and the steam tug James Adans, alleging that on the evening of September 8, 1885, a collision, occasioned by their negligence occurred between the schooner and the canal boat, by which October 18 less, and that the collision was occasioned by the carelessness of the other two. It is entirely clearthat the accident was not, in a legal sense, an inevitable one. It is only when safe navigation is rendered im. possible froin causes which no human fore- sight can prevent— when the forces of nature burst forth in unforeseen and uncontrollable fiir7, sothat man is helpless, and the stoutest | ship and the wisest mariner are at the merey | of the winds and waves—that such accidents occure ‘The collision could have been pre- 1 vented; therefore it was not inevitable. It! also i3 true that no one of the three boats con- | cerned would have been managed as it was, if the sudden and almost unprecedented gale had been anticipated. | Negligence is imputed to the Potter in two particulars. It is said that she exhibited no light, and that she was moored in an im- proper piace. The master of the Potter testifies positively that when he retired for the night he placed a light upon her for- ward cabin, aud when he came on deck after the collision it was still burning. The proof that there was a light at all times on the Scoville is even more satisfactory. Op- po:ed to this is the testimony of the crews of the tugs and schooner that they saw no light. When it is remembered that the night was dark and misty, that the schooner was des- tined for the Wells elevator, on the opposite side of the river, and that there was nothing to direct the attention of the sailors to the point where the canal boats lay unti! after the schooner lufted, it is not surprising that they did not observe the lights. After the schooner took the sheer there was little time for observation; the few minutes that elapsed before the collision were moments of intense excitement. The business in hand was sufficiently urgent to absorb the atten- tion of every on the three vessels, and, if NTT RS NT ET, Mee aca Miiiatn:. ana ieee ieee, Meee — aie i ‘ foe . i | r / he Marine Recond. 4-pott. The next moment, as she came | vessel, severally according to the rule laid | under the Jee of the elevators and large | down in the Alabama, 92 U. S. 692, and the structures on the westerly bank, the sails | Washington, 9 Wall. 513. came becalmed, and the wind struck her star- There should be a reference to the clerk ‘5 board quarter. ‘This, especially with a port | to compute the damages, | SE helm, tended to throw her stern to port “ STOP THE SACRIFICE OF LIFE AND her how to starboard, and recessitated a PROPERTY. quick change of helm from port to star | Fanxroite, Dee. 20: board, and vice versa, as occasion demanded. | tien is ac itn To thus enter a narrow fairway, filled with s. Le oe be hoped that the harbor com- the latter received serious injury. ‘he Adams is a large and powerful harbor tug. The Nicholson is a three masted schooner, with a capacity of 650 tons, carry- ing a square sail, square topsail, and top- gallant sail on her foremast. On the evening in question the Potter lay moored at the Lion elevator, near the en- trance of Peck slip, on the westerly side of the Buffalo river, outside the steam canal boat Scoville and the steam tug Maytham, It was a frequent occurrence for boats to lie at this point. The river for some distance below is about 200 feet in width, but at the point in question it issomewhat wider. Dur- tb ing the early part of the evening the wind was light, blowing trom the southeast and south, the velocity being about seven miles At 10p.m., as appears by the 2 United States signal office, it cre | to 18 miles, at 11 p. m. it was ‘T4 miles, and at midnight 20 miles per bour. - At 11:20 p. m. avery severe squall set in from the southwest, aud continued until 11 155 p. m,, the wind blowing from the lake, “and directly across the river, At 11:45 the wind reached a maximum velocity of 35 miles per hour, ‘he storm was accompanied by rain, thunder, and lightning. he night was very dark. The Adams had taken the Nicholson in tow some three miles up the lake, having two lines from the schooner,— one fromthe port, and another from the star- board, bow. Her destination was the Wells elevator, some 900 feet beyond where the Pot- ter lay, and on the opposite side of the river. The Nicholson was heavily loaded drawing about fourteen feet of water. Her square sails were not securely furled, but hung loose in the gearing. The clews were hauled up close, but when the squall struck them the bunt-lines of the lower sail gave way, leaving about two-thirds of its surface exposed, The yards were braced around to port, so that the sails would draw when the wind struck them. The schooner and tug had arrived at the entrance to the harbor before the squall became serious. ‘I'he schooner sheered badly, and the tug signaled for assistance, but continued her course up the river, at the rate of between five and six miles per hour. When near the Richmond elevator the tug dropped the port line, backed to the starboard bow of the schooner, and rade a line fast to her timberhead, near the bow. At about the same time another tug, the Annie P. Dorr, came to the assistance of the Adams, and took a line from the starboard quarter of the schooner. Soon afterwards the Nicholson sheered to starboard and struck the Potter on the star- board corner of the stern, two feet from the side, breaking the lines which held her to the other boats. ‘Lhe stem of the Adams struck the stern of the Maytham, and the fine from the tug to the schooner was parted. The Potter swung out from her moorings, an@ before, she could be again secured‘ the lights on the canal boats Lad been tar more brilliant than they were, it is quite probable that no one would have observed them. But I am fully convinced that had the light been absent it would not have con- tributed in the slightest. degree to the acci- dent. If the collision is attributed to the faultof the tug the great weight of testi- mony proves that her captain would have taken the same course if he had known the precise location of the canal boats at the Lion elevator. Indeed, he did know of the position of the tug Maytham, for she had for several days been tied up at that point. If, on the other band, the collision is attributed to the fault of the schooner, it is entirely clear that she luffed from causes which could not have been affected by any number Of lights at that pointin the river. The tug would not, and the schooner could not, have taken a different course, Regarding the position of the Potter, it cannot, upon this proof, be held to be improper. No regulation forbade two canal boats from lying abreast at that point. The two together did not project into the river as far as one of the larger steam or sail vessels which constantly lie along the docks, The court has heretofore considered several causes where it appeared that canal boats not only, but large vessels, were moored, three and tour abreast, at dangerous points—so dangerous, ia fact, that an argu- ment inculpating them could easily have been constructed, for the city ordinances forbid more than two vessels from lying abreast—and yet the subject was not alluded to except incidentally. When a proper case arises the court should not hesi- tate to condemn the practice, but there would be little propriety in pronouncing that to be negligence which is permitted by local regulations, and which, perhaps, is rendered necessary by the crowded charac- ter of the harbor, The frequent occur- rence of collisions which, were it not for this custom, might, perhaps, be prevented, ought, it would seem, to require more stringent rules in this regard, in the future, or at least the strict entorcement of the existing ordinances. An examination of the voluminous testi- mony submitted leaves the mind in doubt as to the proximate cause of the accident. So many opposing opinions and conflicting theories are advanced, there is such a marked conflict as to what took place just prior to the collision, that anything like demonstration is out of the question. It is thought, how- ever, that the evidence discloses negligence on the part of both the schooner and the tug, and that the disaster must be attributed to their joint fault. First, as to the Nicholson. It is sufficient- ly established that her head-sails were not properly secured. ‘I'wo-thirds of one of them, owing to the defective bunt-lines giving way, was exposed to the wind. As another schooner, the Michigan, struck her, | she passed up the river the wind through causing additional damage. There is here a triangular contest, in which each boat insists that she is blame- - the slips caught her head-sails, and turned her bow to port. ‘To counteract this, it was necessary, at such times, to keep her helm waited for assistance, vessels, stationary and moving, would be questionable seamanship at any time, and in any circumstances; but with a storm threatening—and there is evidence of ominous signals in the sky before the harbor was reached—it was a grave fault. That it made navigation in the harbor more hazzard- ous is conceded. The schooner had exhibited a tendency to become unruly lower down the river, near the coal shutes, It ean hardly be disputed that with her port braces hauled in, and her head-sails alternately drawing and becalmed, necessitating fre- qnent and skilful changes of the helm, she was not in acondition to be easily bandled. Ludeed, it is quite clear from the testimony that ber helm was not put hard a-starboard at any time after passing the Richmond slip, and, ifs. pitt to starboard at all at that point, it was not done in time to prevent the sheer. Had her jibs or fore- sail been up and drawing her fault would have been admitted by all, and it must be held that the actual condition of her head- Sails was negligence, only in a less degree, and contributed to produce the accident. It is not necessary to examine the other acts of carelessness imputed to the schooner, They are disputed, and the one alluded to is sufficient to justify a decree against her. Was the Adams at fault? It is true that a tug is not a common carrier or insurer. The highest possible degree of skill ia not required of her. She is bound, however, to exercise reasonable skill and care in the discharge of her duties. The law requires her to know and guard against the perils of the harbor, to select the safest and best way to reach the point of destination, and to determine whether, in the existing state of wind and water, it is safe to proceed with her tow. The Nicholson, after she entered the harbor, was, in fact and in law, under control of the tug. The condition of the headsails of the schooner was obvious to those on board the tug. The master of the tug saw them hanging loose in the gearing. Koowing the intricacies of the harbor, he could appreciate the danger from this source more fully than the master of the schooner. The degree of care which he as- sumed must be measured by the obviously dangerous condition of the tow. Greater skill and prudence was required. What might have been skilful seamanship on a calm moonlight night mnst be regarded as bad seamanship when the condition of the elements on the night in question is con- sidered. Stated generally, it was imprudent for the Adams totow a large and deeply loaded schooner. with her headsails unfurled, up a narrow and obstructed channel, at the rate of five or six miles an hour, on an dark night, with a hurricane blowing from the south-west. It is true that the suaden squall put both vessels in an awkward and hazardous situation; and though it is by no means easy, upon this proof, to determine which of the courses suggested the Adams should have adopted, it is quite certain that she should not have taken the course she did, which was the most perilous of them all. - When just inside the pier at the light- house the squall burst upon them. The tug knew that she would have difficulty in con- trolling a vessel so circumstanced as the Nicholson. She could have checked down, and gone alongside of the schooner, and where there was ample sea-room to maneuver. Even had she proceeded, it was not necessary for her, in the teeth of the harbor regulations, to proceed at so high a rate af speed. Again, it was bad seamanship for the Adams, at the Richmond elevator, when the Dorr was at hand, and in a moment more would have had a stern line fast, to give up all control of the Nicholson, knowing that she was almost certain to sheer the moment the line was thrown off. Whether the tug bacixed or not after she reached the schoon- er’s bows it is almost impossible to deter- mine. If, as she insists, the bluff of her port bow was on the svhooner’s starboard bow, and she was pushing the latter over under a starboard helm, using all the power she possessed, it is difficult to understand how her stem could have struck the stern of the Maytham. To reconcile the two positions would puzzle the the most accomplished ex- pert. oa It follows that the libelant is entitled toa decree against the Adams and the Nicholson. A moiety of the entire damages, interest, and costs, should be charged against each mittee and wen who are interested in mari- ners will urge that an appropriation be made this winter for the completion of the harbor of refuge at Portage lake, Manistee county, Michigan. Piers have been started at this point, being 400 feet apart, and what is now necessary is that they be extended out a proper distance inte Lake Michigan, and the channel dredged to 18 or 20 feet in depth, making it one of the best harbors of refuge in the world. Nature has done much to help the project, an inland lake, three miles wide and six miles in length,is tapped by these piers; besides it is so situated that there is less sea therein all winds, excepting a west gale than at other pointson the lake. If this harbor was completed at once, it would save many lives and thousands of dollars’ worth of property which are annu- ally lost and could be saved. Nearly every one in the United States has read of the loss of the tug A. P. Wright, near this harbor last week, and the terrible experience of the wrecked crew. Some of whom are yetina critical condition, all of which could have been avoided if the government had Portage harbor finished; further than this, the schooner Dewey, in tow of the tug, after the line broke, drifted helplessly in Lake Michigan, and when brave Captain Flynn, of Point au Sable station, attempted to as- tist them, he and two surfmen lost their lives. This can also be charged in the same category, all owing to the unfinished condi- tion of Portage Lake harbor, where both craft might have sought safe shelter if it had been finished to admit large craft. Furthermore, the keeper of North Mani- tou island life saving station, who is a brother-in-law of Captain Flynn, who was lost at Point au Sable, hearing of the disas- ter, set sail for the coast, ina gale. After a couragous battle with the storm.their craft capsized, and the crew clung to the boat nearly an hour when some fishermen at Gill’s pier discovered and rescued them, This trip would not have been necessary had not the foregoing accident occurred, and can also be indirectly traced to Portage lake harbor. . A gentleman, well posted on marine mat- ters says: ‘The completion of Portage lake harbor of refuge is a public necessity and the cost of completion is annually lost, which might be saved if it was opened, and T have no doubt but that the barges Mari- nette and Menekaunee, which were lost near by, would have sought shelter there, in tow of thesteambarge, had they. been certain there was water enough, thereby saving fifteen lives and $50,000 worth of property.’’ The attention of the lighthouse depart- ment has been repeatedly called to the fact that no light is on the piers at Portage lake, and the negligence is causing much talk and indignation on the part of masters of sailing vessels, coasting along the Michigan shore; causing them much loss of time, and danger in seeking that port on dark, stormy nights, This port has quite a large lumber traffic, and it is high time a beacon was placed there, : : A life saving station at Portage lake would fill a long felt want. Survivor OC, W. Annis, of the wrecked barge Marinette,says: “T think these stations are a splendid insti- tution, and there should be more of then along the lake coast,’ Respectfully, Cuas. BURMEISTER, — ly CANAL CONTROVERSY. Already some professed friends of the | canals are saying that it will be us ask the legislature for the sum of mon which the canal union deems necessary f next year’s im Fava ORE work on the state’s” water ways, ere isa sneaking regard for the federal-aid plan back of thi robe If the legislature were | faliee ought not to grant an appropr would be more ready to make the congress, without which Colonel says his eftorts in the W. will be unavailing. ah t by delude themselves as t mentot the state, Th have allies in unexp it must be admitted, strongholds. We dee able to tederal aid- mental to the best. least not calculated to ady because the Erie county fai has passed resolutions, implo