The Ship Queen of the East. The Brig Calypso.

THESE were cross libels, filed by the respective owners of the brig and ship above named, to recover the damages occasioned by the vessels' coming in collision in the harbor of New York, in the night of January 2d, 1870.

On behalf of the brig, it was alleged that she was lying properly anchored off the Battery, the tide being flood, and the wind blowing heavily from South-Southwest when, about 9 o'clock in the evening, the ship dragged her anchors and dragged by the brig, bringing up astern of her; that it was then found that the ship's cable had become foul of the brig's cable; that the ship did nothing, though requested to clear the cables, and, on the turn of the tide, the vessels swung together, injuring the vessels seriously.

On behalf of the ship, it was alleged that she was started adrift by a squall, that she was allowed to drift by the brig, to give her a clear berth, and brought up astern of her; that the brig, shortly after, began to pay out chain and drift down upon the ship, which could not pay out more chain herself, because, if she had, she would have swung against a pier; that the brig drifted close under the ship's bows, and when the tide turned, the vessels swung together.

For the brig, Beebe, Donohue and Cooke.

For the ship, Evarts, Southmayd and Choate.

BENEDICT, J. It appears quite plainly from the evidence that there was negligent management on board the ship, in permitting her to drag as she did, owing doubtless to the circumstance that the master was on shore, the chief mate off duty, and the second mate alone in command. Accordingly, if, as a result of such negligence, the ship was placed in dangerous proximity to other vessels at anchor in the harbor, she must be

The Ship Queen of the East. The Brig Calypso.

held responsible for all damages arising out of her improper location.

There is no disputing, upon the evidence, that the brig was anchored in a proper place; that the precautions taken by her to prevent dragging, were proper and successful; that those on board of her were watchful and, when the ship was seen dragging towards them on the flood tide, took the proper steps to enable her to pass in safety; and that, when, upon the turn of the tide, the ship swung down upon the brig, everything possible to be done, on the part of the brig, to avoid damage, was done. As the evidence stands, I incline to believe the statement of those on board the brig, that the ship, in dragging past them, caught their chain, and by reason of that entanglement, the brig was started towards the ship, after she had brought up under the brig's stern. The manner, in which the ship is stated to have passed the brig, does not appear to me improbable, when the currents of the locality, the wind and the tide, the weight of the ship and the nature of the bottom are considered. Nor does it appear impossible that the ship's chain and anchor should have become entangled with those of the brig, as is claimed on her part. Certainly, the impossibility is not so manifest as to require me to hold, in the face of the positive denial of eight witnesses from the brig, that the brig's chain was paid out after the ship brought up astern, and the vessels, by that means, brought nearer to each other. If it be true then, that, when the ship ceased to drag, she was under the stern of the brig with her chain entangled with that of the brig, the berth was foul, and the damages which ensued when the vessels came together upon the turn of the tide, must be held to be the result of the negligence which placed the ship in that position. Furthermore, I am of the opinion that the ship would be responsible, if the facts were as claimed in her behalf upon the hearing. Under the admitted circumstances,

The Steamboat Matteawan.

the brig having selected a proper place of anchorage, was entitled to room to swing in safety upon as long a scope of chain as might be necessary to prevent her from dragging, and if, to avoid dragging, she was compelled to pay out chain after the ship had brought up under her stern, and where a nearer approach involved danger of collision upon the turn of the tide, the damages arising from such proximity could not be chargeable to the brig as resulting from any neglect on her part, but must be held to have arisen from that neglect which permitted this large ship to drag at a single anchor so long a distance, and placed her under the stern of the brig when a few fathoms change in the position of the brig would render a collision imminent. The decree in the first case must, therefore, be that the libellants recover of the ship, "Queen of the East," the damages by them sustained, by reason of the collision in question, with costs. In the second case, the libel against the brig must be dismissed with costs.

MARCH, 1870.

THE STEAMBOAT MATTEAWAN.

COLLISION IN NEW YORK HARBOR.-FOG.-STEAMBOAT AND SLOOP.

Where a steamboat in the harbor of New York was proceeding in a dense fog, running close shut off, when she heard a fog horn off her starboard bow from a sloop which was working by sweeps, from an unsafe anchorage in the Narrows, towards the east shore of the bay, and on hearing the horn the engine of the steamboat was stopped, but was not backed, and she was allowed to drift, and the two vessels came in collision.

Held, That the steamer was in fault for not backing;

That the sloop was not in fault for being under way in a fog.

The Steamboat Matteawan.

BENEDICT, J.-On the afternoon of the 16th of March, 1868, the steamboat Matteawan bound from New York to Key Port, was proceeding down the bay in a dense fog, and the sloop Fame was working by sweeps from an unsafe anchorage in the Narrows to a place of greater safety, on the east shore of the bay. There was at the time but little wind. A fog horn was constantly blown from the sloop, and a whistle constantly sounded from the steamboat. While the steamboat was running shut off close, she heard the sloop's horn, and her engine was at once stopped, but no stern way was given her, and she was allowed to drift. Shortly, the sloop appeared through the fog a very short distance away. It was then too late for the steamboat to avoid her, and so the vessels came in contact. As to these facts, there is no dispute, but on the part of the claimant it is insisted that upon these facts, under the ruling of the Circuit Court in the case of the Sylph, (4 Blatchf. C. C. p. 24), there can be no recovery, in as much as both vessels had undertaken to move in a dense fog.

The case of the Sylph was a case of collision between two steamboats, in a fog, where both vessels stopped and were backing at the blow. The Court below considered, that the nature of the blow indicated that the Sylph had not checked her way as much as possible, and she was accordingly in fault. The Court above, however, held, that such negligence on the part of the Sylph could not be deduced from the evidence, and added, that the Court would not feel bound to examine into conflicting testimony with great closeness, when both the vessels had deliberately undertaken to navigate the bay in a dense fog.

Neither the adjudication of the case of the Sylph, nor the remark of the Court, which I have quoted, have any bearing upon a case like this. Here it is shown by the pilot and engineer of the steamboat that, although they were running in a dense fog, and made aware of the

The Steamboat Matteawan.

presence of an approaching vessel by her horn, they omitted to give their vessel sternway, as they had abundant opportunity to do, but, on the contrary, allowed her to drift down upon the approaching vessel, and so caused the collision. In a fog, a steamboat cannot, under ordinary circumstances, take any chances; she must exercise all the precaution possible, and it was a clear duty on the part of the pilot of the steamboat, under the circumstances, on hearing the horn of the sloop, at once to give his vessel sternway, instead of which he allowed her to drift, and she thus came under the bows of the sloop. This negligence must render her liable for the damages sustained by the sloop. Let a decree be entered accordingly, with an order of reference to ascertain the amount.

Benedict & Benedict, for libellant.

Beebe, Donohue & Cooke, for claimant.