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We construe these later provisions as intended to protect the shipowner against any unfair exercise of the privilege of the charterer to have the ship docked, by requiring the latter to send her to a port where the ordinary facilities for docking such a steamer should be available at the time or within a reasonable time, and, if found not available, to send her to some other port where there should be available facilities, and bear the expense of sending her there. Their effect is to cause the charterer to remain liable for the ship's hire until he sends her to a port where docking facilities are available; but when she is sent to a proper port, the charterer's liability for hire is suspended, and it is for the owner to make necessary arrangements to have her docked. The charterer sent the steamship to Mobile. She reached that place on December 5th. The dock was out of condition when the steamer reached Mobile, and also when she was ordered by the charterer to go there. Upon information that the dock would be in order shortly, the steamer was allowed to remain at Mobile; but on December 12th, when an effort was made to dock her, it was found that the condition of the dock rendered it impossible, and it became apparent that the dock would not be in condition to receive the steamer before the end of the month, and doubtful whether it would be then. On December 31st it became obvious that any further delay of the vessel would be useless, and on January 4th her owner ordered her to, and she sailed for, New Orleans, reaching that port late the next day, and was docked there on January 6th.

During the time the steamer was at Mobile the charterer was insisting that the steamer was on the owner's time, and the owner was insisting that she was on the charterer's time, and frequent communications passed between them, in which the owner asked for instructions, and the charterer refused to give them.

When the charterer learned that the dock at Mobile was out of repair, he should have sent the steamship promptly to another port, unless he preferred to remain liable for the hire, or to wait for the repair of the dock at Mobile and meanwhile remain liable for the hire. The master being under the orders and directions of the charterer, and it being the charterer's duty to furnish the master. from time to time all requisite instructions and sailing directions, the owner was not under any obligation to select a new port of docking. It is true that the owner was at liberty to send her to another port, but this was because the charterer in effect authorized the owner to take possession of her until she should be docked. The general rule is familiar that where a party is entitled to the benefit of a contract, and can save himself from a loss arising from a breach of it with reasonable exertions, it is his duty to do it, and he can charge the delinquent with such damages only as, with reasonable endeavor and expense, he could not have prevented. It is urged that this rule required the owner to take steps to minimize the loss likely to accrue by reason of the delay in having the vessel sent to New Orleans or some other port where there were proper docking facilities. But this was a loss which would accrue to the charterer, and not to the owner; and to apply the rule to the pres

ent case would have required the owner to do what at any time and every day the charterer could have done himself, and should have done.

The decree is affirmed, with interest and costs.

THE CHAUNCEY M. DEPEW.

(Circuit Court of Appeals, Second Circuit. May 17, 1905.)

No. 202.

COLLISION-VESSEL LYING AT END OF PIER-NEW YORK STATUTE.

*

Libelant's canal boat was lying outside of others at the end of a pier in East river, in violation of Laws N. Y. 1897, p. 314, c. 378, § 879, which prohibits vessels from obstructing the waters of the harbor by lying at the exterior end of wharves in the North or East rivers, and provides that "any vessel * * so lying shall not be entitled to claim or demand damages for any injury caused by any vessel entering or leaving any adjacent pier." While so lying, respondent tug brought a barge to the end of the pier to be warped into the adjoining slip, and, through negligence in handling, brought her into collision with the canal boat. Held that, while the statute did not govern the right of recovery in a court of admiralty, the regulation was one which it was competent for the state to make, and its violation was a fault on the part of the canal boat which contributed to the collision and rendered her liable for one-half the damages.

Appeal from the District Court of the United States for the Southern District of New York.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding the tug solely in fault for damages sustained by libelant's canal boat William S. Deyo in consequence of a collision with the barge Sharon, which the Depew was endeavoring to place in the slip on the south side of the pier at the foot of Ninety-First street, East river. The opinion of the District Court is reported in 130 Fed. 59.

A. G. Thacher, for appellant.

La Roy S. Gove, for appellee.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

LACOMBE, Circuit Judge. The Deyo was the fourth or outside vessel moored at the end of the pier at the foot of Ninety-First street. These craft lay parallel to the end of the pier, one outside of the other. None of them projected beyond the lower line of said pier, but all of them came out to said line, and all projected beyond the upper line of the pier. The tug had three barges in tow, two (the Sharon outside) on her starboard side and one on the port. The destination of the Sharon was the lower side of the NinetyFirst Street Pier, where she was to unload into another barge already there. There are shoals off the entrance to the slip on the lower side of the pier, and the usual method of entering, especially on a flood tide, is to head upstream, then round to so that the tow points downstream, bringing the starboard barge alongside of the

end of the pier. A line is then run from the barge to the pier, the tug drops back, places its bow against the stern of the barge, and goes slowly ahead, thus turning the barge on the corner of the pier, and swinging her into the slip by her line. The story of the claimant is that this turning or pivoting maneuver was employed by the Depew to enable the Sharon to enter the slip below the NinetyFirst Street Pier, the turn being made on the corner of the canal boat instead of on the corner of the pier. There is great conflict in the testimony as to whether the Deyo was headed up or down, but the District Judge who saw and heard the witnesses found that she was headed up, with her starboard side exposed. Claimant contends that the Depew slowly approached the four boats moored at the end of the pier, that a line was run to the barge already moored on the lower side of the pier, and that the tug then pushed the Sharon carefully around the corner of the Deyo. The District Judge, however, reached a different conclusion. The testimony of the surveyors showed that the damage was near the bow, planks driven in on the starboard side and out on the port, and the District Judge concluded that the tug had carelessly brought the Sharon into collision with the canal boat some distance above the place where it was necessary to bring the vessels into contact in order to make the turn. But in whatever way they were brought into contact, we are satisfied from the record that the tug did not sufficiently reduce speed, but brought the Sharon so violently into contact with the Deyo as to cause damage which more careful execution of the maneuver she sought to execute would have avoided. We do not find the tug in fault for undertaking to make the turn on the corner of the canal boat instead of on the corner of the pier. Under the statute hereinafter referred to, the risk of injury from such a maneuver, carefully conducted, was one which the canal boat assumed when she improperly placed herself at the end of the dock in water which was prohibited to her as a berth. But the privileged vessel, although thus obstructed and embarrassed, was none the less under an obligation to exercise reasonable care when undertaking to use the corner of the canal boat as a fulcrum instead of the corner of the dock. And that fault is sufficiently covered in the libel by charges of carelessness in "not avoiding" the Deyo, and in "not stopping and backing in time to avoid collision." We concur in the conclusion that the Depew was in fault.

It is contended that she is relieved from all liability for the consequences of that fault by the provisions of chapter 378, p. 314, Laws 1897, § 879, which reads as follows:

"It shall not be lawful for any vessel, canal boat, barge, lighter or tug to obstruct the waters of the harbor by lying at the exterior end of the wharves in the waters of the North and East river except at their own risk of injury from vessels entering or leaving any adjacent dock or pier; and any vessel, canal boat, barge, lighter or tug so lying shall not be entitled to claim or demand damages for any injury caused by any vessel entering or leaving any adjacent pier."

The District Judge held that this statute did not apply, because "the Sharon was bound, for a brief time at least, for the end of the

pier." We are unable to concur in this conclusion; the Sharon was bound for the slip adjacent to the pier, although, to effect an entrance, it was necessary first to bring her side up to the lower corner of the pier end. The statute has been several times considered (see cases cited in the opinion of the District Court), but in all of them the colliding vessel was not bound either in or out of an immediately adjacent slip. In The Dean Richmond, 107 Fed. 1001, 47 C. C. A. 138, we held that the statute was not to be extended to cover cases which are not clearly within its terms, and commented on the circumstance that it was very loosely expressed. Although broad language is used in the second clause of the section, we are not prepared to attribute to the Legislature any attempt to regulate procedure in the federal courts, or to alter or modify the principles upon which those courts administer their admiralty jurisdiction. All that was intended was a prohibition against prosecuting the claim or demand for injury, caused by the moving vessel, in the courts of the state. Whether the conduct of a particular vessel has been rightful or wrongful may well be determined by reference to the local statute regulating its operations, but it is not to be assumed that the State Legislature undertook to interfere with the federal admiralty courts in the exercise of their peculiar jurisdiction. Referring to this very statute, we held in The Dean Richmond, supra, that "it was undoubtedly competent for the Legislature to prohibit such a use of the piers, in the interests of the general convenience and expediency." The Deyo lay at the end of the pier in flagrant violation of the terms of this statute. That she was an obstruction to navigation is manifest. "The purpose of the present statute would seem to be to remove all controversy * * * in respect to the extent of the obstruction caused by the manner in which the vessel is moored." The Dean Richmond, supra. She occupied water which in this particular case was required in order to allow the Sharon to be warped around the corner of the pier in the usual and proper manner. She was lying where she had no right to lie, increasing the difficulties of all boats trying to enter or leave the adjacent slips, and was herself in fault. Moreover, her fault contributed to the collision, whichever way it came about. Had she been elsewhere than in the prohibited place, the Sharon might have been brought up against the solid end of the pier with impunity, and could have been warped around the corner in water which the statute reserved for her uses, without injury to the Deyo, to herself, or to any other vessel.

Since both vessels were in fault, the damages should be divided. The decree of the District Court is reversed, with costs of this court in favor of the Depew against the Deyo, and cause remanded with instructions to enter decree in favor of the Deyo against the Depew for one-half the damages, without costs.

BLAKESLEE et al. v. NEW YORK CENT. & H. R. R. CO.

(Circuit Court of Appeals, Second Circuit. June 23, 1905.)

No. 206.

SHIPPING-INJURY OF BARGE AT WHARF-LIABILITY OF CHARTERER.

Evidence considered, and held insufficient to establish the claim of libelant that an injury to his barge, which was under charter to respondent, and was damaged by being struck by some moving vessel while at its docks, was caused by one of respondent's tugs; there being no direct credible testimony to identify the vessel causing the injury, which occurred in the night.

Appeal from the District Court of the United States for the Southern District of New York.

This cause comes here upon appeal to review a decree of the District Court, Southern District of New York, holding the respondent liable for damages sustained by the barge Katie (owned by Blakeslee) and her captain, Gunderson, who lost his personal effects when she sank in consequence of injuries sustained during the night of January 27-28, 1903. The decision in the District Court is reported in 132 Fed. 153.

F. M. Brown, for appellant.

La Roy S. Gove, for appellees.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

LACOMBE, Circuit Judge. The Katie was old and somewhat weak, but she had just been repaired, and we concur in the finding of the district judge that her condition was fairly good, and sufficient to encounter the ordinary contacts of harbor towage. The injuries she sustained warranted the conclusion that she had been subjected to an unusually severe blow. On January 27th, about 6 p. m., or a little after, the barge was taken in tow at Atlantic Basin, Brooklyn, by respondent's tug No. 13. She was then in sound condition. On January 28th, after 11 a. m., she was taken in tow at West Shore Docks, Weehawken, by respondent's tug No. 12. At that time her stem was knocked to one side, and there was a hole in her bow above the water line. It is conceded that no tugs other than respondent's moved her from place to place in the interim. She was under charter to respondent, and used only in its service, but that circumstance is not sufficient to establish the liability of respondent, which was not an insurer. There must be some evidence warranting a finding of negligence in her care or management. Undoubtedly the Katie received a severe blow that night from something, floating or stationary, and the only witness who testifies to the circumstances under which that blow was received is the co-libelant, Gunderson, who was on board of her all the time. All of his testimony was taken by deposition. So we are not embarrassed in weighing it by the conclusions of the district judge, who neither saw nor heard him. His statements as to the events of the night are so discordant that it is charitable to assume he was at the time

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