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THE LUCKENBACH.

ASKEW V. THE LUCKENBACH.

(District Court, S. D. New York. December 19, 1892.) NEGLIGENCE-PERSONAL INJURIES-USUAL CONSTRUCTION.

Libelant, a fireman on a tug, was thrown against the deck house by a
lurch of the vessel, and at the same time, the iron door of the house
swinging to, his fingers were caught near the hinges and cut off. There-
upon he brought this suit, alleging negligent construction of the vessel.
Held, that the weight of the evidence showed no negligence in the construc-
tion of the tug. Held, further, that not only were the appliances of the tug
in good order, but they were in the exact condition in which they were
when libelant engaged work, and were perfectly known to him, which
fact would bar recovery.
In Admiralty. Libel by John Askew against the steam tug Lucken-
bach for personal injuries. Libel dismissed.

Hyland & Zabriskie, for libelant.
Peter S. Carter, for claimants.

BROWN, District Judge. On the 3d of July, 1892, while the libelant was on duty as fireman on the Luckenbach, which was proceeding eastward a few miles outside of Sandy Hook, in rough weather, on coming from the fire room to the upper deck, in order to look at the steam gauge inside of the house, he was, as he says, thrown by a sudden lurch against the starboard side of the house, where, to save himself, he caught with his right hand the door casing on the hinge side. Just at that moment the iron door swung to, and cut off the ends of his two middle fingers. The libel was filed to recover for the injury, on the ground of the insufficient and negligent construction of the tug in not having a railing around the open hatchway near the gauge, which would afford support in heavy weather; and also that the fastening of the door was out of order, whereby it was allowed to close improperly.

There is some evidence tending to show that according to the libelant's admissions to the captain, though these are denied by him, he was endeavoring to force the door open, and slipped at the time of the lurch, and thus got his hand upon the jamb of the door.

Upon the other points, however, the libelant's testimony is overborne by the weight of testimony, showing that the door in question on the starboard or weather side was not only required by the general rule of the tug to be closed in such weather, but that orders to close it had been repeatedly brought to his knowledge that morning. His denial of the statements made by the several different witnesses in that regard, whom I must believe, throws some doubt upon the rest of his story, as to the way his hand got in the door, though that is corroborated by one eyewitness.

There is a further difficulty which I am unable to explain, in the libelant's account of the way in which the door closed, taken in con

"Reported by E. G. Benedict, Esq., of the New York bar.

nection with the inability to open it immediately afterwards. If the skid outside prevented it from opening afterwards, it should have prevented shutting, unless the skid was brought there by water at the very moment the door shut; but in that case if the door was previously fastened back, as the libelant asserts, the water would apparently have prevented the door from shutting. I do not find it necessary, however, to decide that point definitely, because on other grounds, I am satisfied the libelant cannot recover in this case. The weight of evidence is certainly to the effect that the door fastening was in good order. There can be no doubt of this, if the libelant's own statement is true, that the door had not been closed that morning, nor for a week before; and that he had never known it before to close of itself through heavy seas.

The only point remaining concerning negligence is the absence of a guard around the open hatchway, by which the men coming up the ladder from the fire room below might find support. I am not clear, however, that there was not a reasonable provision for so. small a house. There was a sufficient guard rail on the bulkhead immediately adjoining the opening, and running two or three feet above it, which gave all the hold needed there to persons coming up. The room was small, and there was a rod within arm's length of a person passing around the opening to go to the starboard side, which would afford any desired support in that direction; no accident had ever occurred there, and there is no evidence that the usual provisions for so small a room were not supplied. According to the evidence, there was not enough space for the necessary work in that room to admit of a rail around the opening such as is seen in the larger house on The E. F. Luckenbach. But aside from this, this accident had no immediate relation to the absence of a guard around the open hatch. If the libelant had fallen down the hatch in consequence of the want of a guard, the absence of the guard might have been said to be the proximate cause of the injury. But instead of falling down the hole, the libelant, according to his own story, on the lurch of the ship, was thrown over the other way to starboard, against the side of the house. This would certainly not have happened had he chosen to support himself by the rod or stanchion to the left, which he could easily have done, if he wished for support, whether he was crossing to starboard, or was looking at the register. It would be mere speculation, there. fore, to say that if there had been a guard around the hatch he would have made use of it, and would not have been thrown against the house. The shutting of the door at the moment the libelant's fingers reached the jamb, moreover, was not a natural result of the absence of a guard around the opening. It had no direct connection with it; and it was not a consequence naturally to be expected to result, or in fact resulting, from the absence of a guard; it came from a wholly independent cause that is not, therefore, the proximate cause of the injury. Even if it had been, I should have found great difficulty in allowing any recovery, as the hatchway and all the arrangements of the room were in no respect out of order, but in the exact condition they were in when the libelant engaged work, and were perfectly known to him. The Maharajah, 40 Fed. Rep. 784, affirmed 1 U. S.

App. 20; Railroad Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. Rep. 1044; The Serapis, 51 Fed. Rep. 91.

On the whole I cannot regard the case of the libelant as sufficiently established; and the libel must, therefore, be dismissed.

THE JOHN H. MAY.

THE ORION.

THE OAKLAND,

RIGGS F. THE ORION AND THE OAKLAND.

(District Cuurt, E. D. Pennsylvania. January 17, 1893.)

No. 26.

COLLISION-DAMAGES-DETENTION BY STORMS.

A schooner, bound from New York to Jacksonville, Fla., was injured by a collision occurring without her fault while at anchor in the mouth of Chesapeake bay, and was compelled to put into Norfolk for repairs. After the repairs were made, she again started on her voyage, but before reaching the place of collision was compelled by bad weather to put back to Hampton Roads, where she was detained by the storm for several days. Held, that she was not entitled to damages for this detention, as it was not such il probable consequence of the collision as inight have been foreseen.

In Admiralty. Libel by Riggs, master of the schooner John H. May, against the steamer Orion and the barge Oakland for a collision. The latter vessels were heretofore adjudged to have been alone in fault. 52 Fed. Rep. 882. The cause is now heard upon a case stated for the assessment of damages for detention of the schooner by bad weather after repairs were coinpleted. Clain, denied.

The case stated was as follows: “The schooner John H. May, on a voyage from New York to Jacksonville, Florida, was run into by the Orion and Oakland, while lying at anchor in the mouth of Chesapeake bay. The Orion and Oakland have been adjudged in fault for the collision. The schooner was seriously damaged, and was obliged to put into Norfolk, Virginia, for repairs. The repairs were made, and in coming out from Norfolk, and before getting back to the place in the mouth of Chesapeake where the collision happened, the May was unavoidably detained in Hampton Roads by stress of weather from February 19th to March 1st. Upon the latter date she again reached the point on her voyage where the collision occurred. Compensation is claimed by the libelants, as part of the damage arising from the collision, for this detention of eleven days at Hampton Roads. This claiin is resisted by the respondents as too remote. Are the libelants entitled to compensation for this delay ?

Curtis Tilton, for libelant.
Morton P. Henry, for respondents.

BUTLER, District Judge. The question presented must be de. cided in the respondents' favor. The detention at Hampton Roads was not the direct result of the collision, but of the tempestuous weather which arose subsequently. It was not a probable con

sequence of the accident, such as should have been foreseen, and is therefore too remote to be chargeable to it.

Furthermore the libelant was virtually back at the place of collision when the detention occurred. She was but eight or ten miles away, and it may be assumed that she could safely have gone this distance, especially with the aid of a tug. She did not go further doubtless because the storm forbade a continuance of her voyage to sea, and made it necessary to seek a harbor somewhere. The safest. and most convenient was Hampton Roads, and she therefore stopped here. Had she gone further down she must have returned or sought harbor elsewhere. I do not understand it to be urged that if the storm had arisen after reaching the place of collision, or if the detention had occurred afterwards, such detention would be chargeable to the accident. Of course it would not be. As well miglt it be said that all detention on the subsequent voyage, from similar cause, (which might probably have been escaped but for the collision,) should be so charged.

THE H. S. NICHOLS."

THE CERES.

THE G. W. WRIGHT.

THE JAMES T. EASTON.

DU BOIS v. THE H. S. NICHOLS and THE CERES.
SAME V. THE G. W. WRIGHT and THE JAMES T. EASTON.

(District Court, S. D. New York. January 4, 1893.) 1. COLLISION WITH WRECK-NEGLIGENCE-PILOT-IGNORANCE OF CHANNEL.

The tug Ceres, in taking a mud scow to sea from New York harbor by Coney island channel, ran the scow aground. Thereafter the tug Nichols, passing through the channel with libelant's scow No. 3 in tow, ran No. 3 upon the stranded scow of the Ceres with such force as to cause No. 3 to sink. The owners of the Nichols sent the tug Wright to stand by No. 3 during the night and warn other vessels of the wreck, but in spite of the presence of the latter tug, with two red lights set, the tug Easton came down the channel, and ran her tow upon the sunken No. 3, inflicting on it further damages. The owner of No. 3 brought these suits against all four of the tugs, alleging negligence in their failure to give proper signals on the part of the Ceres and the Wright, and negligence in failing to observe and keep out of the way of the grounded scows on the part of the Nichols and the Easton. Hold, that questions as to lights and signals were immaterial, as the Ceres and the Wright gave signals which were sufficient to warn an approaching vessel of some danger, and that the fundamental cause of the collision was a lack of knowledge of the true channel, and the proper way of navigating through it, on the part of the masters of the Nichols and the Easton, which rendered those tugs alone liable for the

damages. 2. SAME-COLLISION WITH WRECK-SIGNALS REQUIRED.

In a dangerous place, some notice of the presence of a wreck is a reasonable obligation on the part of the owner of such wreck; but, no special signals being prescribed, any plain signals that naturally serve as a warning to keep off are sufficient.

' Reported by E. G. Benedict, Esq., of the New York bar.

H

In Admiralty. These were two libels by Jacob Du Bois, as owner of scow No. 3, against the steam tug H. S. Nichols and the steam tug Ceres, in the one case, and against the steam tug G. W. Wright and the tug James T. Easton, in the other. Decree for libelant against the Nichols and the Easton, and exempting the Ceres and the Wright.

Goodrich, Deady & Goodrich, for libelant. Peter S. Carter, for the Nichols and the Wright. Stewart & Macklin, for the Ceres. Hyland & Zabriskie, for the Easton. BROWN, District Judge. The libelant is the owner of scow No. 3 which was employed in taking mud from New York to and beyond Sandy Hook, to be dumped within the prescribed limits. Like other scows in this service, she had no motive power of her own, but was towed with two other scows behind her by a tug upon a hawser about 400 or 500 feet long, the two scows behind No. 3 being connected closely together by a short hawser. Quite a number of scows and tugs are in this service. They draw from 7 to 12 feet. The usual route lies through the Coney island channel, a passage which appears from the chart to give 10 feet depth of water at low tide for a breadth of at least 1,000 feet at its narrowest part abreast of Lewis' shoal, but which the witnesses have supposed to be considerably less.

The ordinary practice for tugs going down is, to pass near the light on Norton's point, the westerly end of Coney island, thence to go about half a mile on a S. S. E. course, and then to haul around to about E. by N. The narrowest part of the channel is met soon after hauling upon the last-named course, where it runs between the east bank on the south and Lewis' shoal, or spit, on the north. The usual navigation brings the tows down to this vicinity in the last quarter of the ebb tide; and the evidence shows that the grounding of tugs for a few hours at this part of the channel way is not infrequent. Several tugs, each with two or three scows in tow, usually go down with every ebb tide night and day.

At about 1 o'clock A. M. on September 7th, 1892, the libelant's scow No. 3, loaded with mud, and drawing 77 feet of water, while going past Lewis' shoal in tow of the steam tug H. S. Nichols, was pulled head on against the stern of another scow which had got aground opposite Lewis' shoal on the east bank, while in tow of the tug Ceres, which had gone down not long before. Still another scow was at the same time aground on Lewis' shoal oppposite. The captain of the Nichols testifies that on approaching these two scows aground, he supposed them both to be upon Lewis' shoal, i. e. to the northward of the channel, and that he, therefore, attempted to pass to the southward of the scow of the Ceres; in doing so, he pulled No. 3 against the latter scow with sufficient force to break the bow of No. 3, and to cause her to sink in a few minutes. The first above libel is filed to recover the damage from that collision.

Before sinking, the stern of No. 3 swung around to the northward and eastward, and the two scows No. 6 and 11 which were behind No. 3, also drifted away to the north ward and eastward, passing the sunken scow on her northerly side while the Nichols went on her

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