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distance, went nearer than usual to the tow, and nearer than was safe at full speed, and that the accident arose from the failure to use the customary and requisite caution when going so near."
The general principle deducible from these cases would seem to be that stated in the case of The Batavia, 9 Moore, P. C. 286, in which it was stated, that, if the steamer "was going at such a rate as made it dangerous to any craft which she ought to have seen, she had no right to go at that rate. At all events, she was bound to stop, if it was necessary to do so, in order to prevent damage being done by the swell to the craft that were in the river."
The rule is also stated in the case of The Morrisania, 13 Blatchf. 512, Fed. Cas. No. 9,838, where Judge Hunt, the same judge who decided the case of The Daniel Drew, supra, said that the “undoubted right to the navigation of the river is subject to the restriction that it must be exercised in a reasonable and careful manner, and do no injury to others that care and prudence may avoid.”
In so far as deductions of principle can be made from the various statutes and cases, as illustrated by the above citations, it would seem: (1) That the boat causing the injury must be held responsible for any failure to appreciate the reasonable effect of its own speed and motion through the water at the particular place and under the particular circumstances where the accident occurred. (2) That boats in the neighborhood, which may be reasonably expected to be affected by the swells of the steamer causing the injury, are to be taken into consideration, and that the officers of the steamer must use reasonable judgment and care, not only to see whether such an accident is likely to happen, but whether they have taken all reasonable precautions to avoid such an accident, even when the result of former experience has shown that, in the ordinary and usual course of events, the boat passed is likely to escape injury. (3) That the tug or smaller craft, if properly managed, with the tow properly arranged, has a right to assume that large craft will observe such precautions as are reasonable to avoid inflicting injury, and that these precautions will not be merely such as would be sufficient to produce ordinary and customary circumstances of passing. (4) That the tug or smaller craft, relying on the presumption that the larger craft will take precautions, is under no obligation to warn the larger craft, if the tug or smaller craft is in a proper place and navigated properly according to general rules.
From this view of the authorities let us look at the case at bar. The testimony shows that the Chapin is a large steamer, propelled by a screw, and creating a considerable swell. She passes up the East river and through the Sound on practically daily trips during the summer season, and is accustomed to frequently meet tows and scows. Her captain and mate must be held to be acquainted with the amount of disturbance which she creates moving through the water at her various rates of speed, and to be sufficiently informed upon all matters connected therewith to estimate the effect of the passage of the steamer at any particular time upon boats either being overhauled or met with in the narrow channels of the East river and Long Island Sound. The fact that this accident happened under the conditions above stated of itself shows that the Chapin was proceeding at such a rate of speed, and causing such swells, as to make it dangerous for scows laden in the customary manner, at least if the Chapin passed within a distance of from 75 to 100 feet of the scows. These facts were matters which the captain or pilot of the Chapin could take into account in estimating the speed and nearness with which the Chapin could pass a scow or a tow of scows, approaching in daylight, with nothing to prevent the Chapin from choosing her position and rate of speed. It would appear that the Chapin had slowed down and was proceeding at a somewhat slower rate of speed, so far as her engines were concerned; but there is nothing to rebut the testimony that the effect of the Chapin passing through the water was to cause swells, which were the only proximate cause of the injuries sustained. The Chapin may have passed tows exactly similar to this numerous times, and the tows invariably have passed through the swells safely, but that fact would not relieve the officers of the Chapin from considering, upon this particular occasion, the amount of disturbance which was then being caused, and the effect which that disturbance would have upon the scows which the Chapin was about to meet. The tow was in plain sight for a sufficient distance for the officers of the Chapin to have formed an opinion and to have exercised judgment in directing the movements of their boat. It is considered that the officers in charge of the Chapin either relied upon their past experience, and therefore made no attempt to estimate the necessities of the particular situation, or that from familiarity, or because of freedom from previous accidents, these officers misjudged the effect of the swells from their own boat.
On either theory the Chapin must be held responsible, and the libelant may have a decree.
JAMES SHEWAN & SONS V. NEW ENGLAND NAVIGATION CO.
(District Court, E. D. New York. July 31, 1907.) 1. SHIPPING-DUTY OF STEAMER WITH RESPECT TO SWELL-STRUCTURES AT
The duty of a passing steamer with respect to causing dangerous swells is the same toward a floating dry dock permanently located alongside of a pier as toward vessels in the same situation, and she is bound to exercise reasonable care to avoid causing injury to such dock, having re gard to the character of the structure and its greater liability to injury from its size and therefore longer subjection to the action of the swells; and it is also the duty of the owner of the dock to take into account the same liability to injury from swells and to make reasonable provisions against it.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Shipping, $ 345.
Liability of vessel for injuries caused by creation of swell, see note to
The Asbury Park, 78 C. C. A. 3.] 2. SAME-INJURY TO FLOATING DRY DOCK FROM SWELL.
Libelants were the owners of a floating dry dock 278 feet long and 90 feet wide permanently stationed alongside of a pier on East river by means of four very heavy vertical timbers or spiles driven along the side of the pier, to which the dock was secured by means of yokes or eyes of heavy lumber built around the vertical timbers, allowing the dock to move down and up as it was submerged or pumped out, or as the tiãe fell and rose. The large steamer Payne, owned by respondent, passed down
the river in the daytime at a distance of about 1,100 feet from the pier against a flood tide at a speed of 12 knots or more through the water, and her large swell caused the dock to oscillate to such extent as to break the end yokes and also one of the vertical timbers. Held, that the Payne was in fault for not reducing speed so as to avoid causing such dangerous swells; that libelants were also in fault for failing to make better provision against the action of swells from passing vessels by giving greater play to the yokes at the ends of the dock.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Shipping, $ 345.] In Admiralty. John F. Foley, for libelant. William Greenough (James T. Kilbreth, of counsel), for respondent.
CHATFIELD, District Judge. The libelants are the owners and proprietors of a stationary, but floating, dry dock, located at the south side of a slip between the piers at East Fourth and East Fifth streets, New York City. The dry dock consists of a pontoon or submerged structure, about 278 feet long, 90 feet wide, and about 11 feet deep. On this pontoon bulkheads arise for the entire length along each side, and the complete structure, up to a distance of about two feet from the top of the bulkheads, can be submerged to allow a vessel to pass in at the outside end of the dock. The total submerged draught is 33 feet. The pontoon being pumped out, the dock rises until the deck of the pontoon is out of water.
In manner of construction it is similar to other wooden dry docks, but it is stationary in the sense that it is fastened by four extremely heavy vertical timbers, placed upon the south side of the dry dock and immediately along the face of the north side of the pier at East Fourth street. As the tide rises and falls, or as the pontoon of the dry dock is pumped out or submerged, the dock slides up and down next to these four timbers, while four yokes or eyes of heavy lumber, called “saddles,” built around these vertical timbers, prevent the dock from moving in or out, upstream or downstream, and allow but slight play about the timbers themselves. These four vertical timbers are sunk in the ground to a considerable depth, and make the dock stationary, with the exception of the up and down motion. The testimony shows that the libelants have maintained this dock, constructed in this fashion, for a considerable period at the same spot, and that the libelants have made claims for injuries occurring from the swells of passing steamers on some occasions. The testimony also shows that there is but one other dock of this particular style so far as its mode of fastening is concerned, in the waters around New York, and that that dock is in a protected basin, rather than alongside of a waterway used frequently by large vessels, as is the East river.
The occurrence for which damages are asked was caused by the passage of the steamer William G. Payne down the East river, in the neighborhood of 11:15 o'clock in the forenoon, upon the 11th of June, 1905. At that time the tide had started to run up the river with the beginning of the flood; low water at Governor's Island having occurred in the neighborhood of 9 a. m., and the tides at the locality in question being less than an hour later than that at Governor's Island. The dock had been submerged in order to admit a boat, the steamer Surprise, which was moored at the outside end of the Fourth Street Pier, ready to move into the dock. The testimony of the libelants is that the Payne passed within a few hundred feet of the dock, the distance varying; but from a consideration of all the testimony and of the localities referred to, and taking into account the Third street reef, shown upon the government charts almost opposite Third street, it is believed that the Payne passed down outside of this reef some little distance, and probably 1,100 to 1,200 feet from the end of the pier where the Surprise was moored. The Payne was seen by the docking superintendent of the libelants, and, as she passed, he, as also some of the witnesses who were upon the Surprise, observed her swell, and watched it strike the Surprise and the dry dock. Under the action of the swell the Surprise was considerably tossed around, but her method of mooring by lines prevented any injury to her. The dry dock, however, was carried up and down the timbers, and the yokes or saddles, passing around the outside and the inmost timbers or spiles, were broken, while the saddles upon the spiles in the center were loosened. One of the spiles, which was testified to be about 22 inches square, and 58 feet long, with 16 feet of its length driven into the river bottom, was cracked, and injuries resulted for which the libelants charge that they suffered damage for repairs, loss of service, and other incidental expenses to the amount of $1,501.43. The witnesses for the libelants estimate the speed of the Payne at from 12 to 15 knots an hour over the ground. The officers of the Payne say about 10 knots an hour, which is her rate of running under one bell in slack water. Most of the witnesses for the libelants were of the opinion that the tide was running out, but, taking into account the lapse of time, it is believed that the respondent is right as to the condition of the tide, and that it was running up the river. If this were so, the Payne, when running against the tide, which had turned at least an hour before, in order to be going down the river at the rate estimated, must have made rapid progress through the water, even if running under one bell. The size of the swell depends principally upon the speed of the boat through the water, although the progress of the swell along the shore would be retarded, and the waves would not move as rapidly down the river against the tide as they would with it. But the point with which we are interested is the size of the swells rather than their rate of progression, and it is believed that the conditions shown indicate conclusively that the swells were large, and that the Payne causes considerable commotion for a boat of her size when under way. sponsibility of a large boat such as the Payne, which is a screw steamer of considerable size, when passing up and down a narrow and much used waterway such as the East river, has been frequently considered in the courts. Many of these cases have been reviewed in a case recently decided by this court (Phoenix Towing & Transportation Co. v. The Chester W. Chapin, 155 Fed. 854), and it is unnecessary to repeat that review here. The cases, however, arising from damages to a structure either built upon the shore, or to a vessel moored at the shore, while based upon the same principles as those arising from damages to a vessel proceeding in the channel, show that the courts have taken into account the condition, manner of construction, and location
of the structure of vessel along the shore in determining whether the injured party had used reasonable care on its part to avoid injury, even more strictly than they have considered the manner of fastening, and the seaworthiness of vessels in tows or craft injured by a large steamer when passing in midstream. Injuries occurring to a structure built upon or fastened to the shore are much fewer in number than those happening to floating, temporarily moored vessels, but the permanent character of such a structure evidently requires the exercise of not only the same degree of care, but the consideration of greater possibilities and more frequent and long-continued subjection to the swells of passing steamers than would be necessary in the case of a vessel moving up and down the channel or fastened to a dock by lines.
The responsibility of a vessel passing up and down a channel, with respect to the effect of its waves upon objects along the shore, is set forth in the case of The Rotherfield (D. C.) 123 Fed. 461, in the following language:
"Where a vessel properly moored at a dock, at anchor, or not in motion, is damaged by a vessel in motion, the presumption of law is that it was the fault of the one under way; and it is presumptively liable until the contrary is shown, the burden of doing which is upon the vessel under way. The Morrisania, 13 Blatchf. 512, Fed. Cas. No. 9,838; The Tiger Lily (D. C.) 11 Fed. 745; The Worthington (D. C.) 19 Fed. 836; The Drew (I). C.) 22 Fed. 852; The Rhode Island (D. C.) 24 Fed. 295; The El Dorado (D. C.) 27 Fed. 762; The Ogemaw (D. C.) 32 Fed. 919; The New York (D. C.) 34 Fed. 757. The vessel in motion must exonerate herself from blame by showing that it was not in her power to prevent the injury by adopting any practicable precautions. The Virginia Ehrman, 97 U. s. 309, 24 L. Ed. 890; The Bridgeport, 14 Wall. 119, 20 L. Ed. 787. It is the duty of steamérs passing docks or other mooring places to pass at such a rate of speed that no danger will result from her swell, or to pass at such a distance that no harm will result to a vessel, lawfully there and properly moored, from the suction produced by her passage through the water or from her displacement wave, and she is bound to know the effect of her swell. Spencer on Marine Collisions, $ 72. "A steamboat passing in the vicinity of other craft in shallow water is bound to use all reasonable precautions to avoid doing them injury from the known suction she causes.' The Drew (D. C.) 22 Fed. 852. In that case Judge Brown says: “The liability to do damage to boats lying in shallow waters through the swell and suction of her passage is a familiar fact.' 'The undoubted right of the steamer to the navigation of the river is subject to the restriction that it must be exercised in a reasonable and careful manner, and do no injury to others that care and prudence may avoid.'”
The conclusion from an examination of the authorities and from the facts shown in this case is that the Payne was proceeding at a rate of speed and causing a swell which her officers should have been observant of. If the swell which the Payne was causing upon this trip had inflicted injury upon a tow or a boat properly moored, the authorities seem to agree that she would be responsible for the injuries caused, and there seems to be no reason why she should not be responsible to the same extent to the dry dock itself.
In the case of the dry dock there is nothing to indicate that the officers of the Payne had any reasonable ground for supposing that the dock could be injured if boats properly moored at the same distance from the passing vessel would escape injury, and their duty, therefore, was the same as to such a vessel.