Comfort v. The Wallace

E.D. New York

Comfort v. The Wallace

32 F. 672, 1887 U.S. Dist. LEXIS 108

DecidedNovember 9, 1887

StatusPublished

This text of 32 F. 672 (Comfort v. The Wallace) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Comfort v. The Wallace, 32 F. 672, 1887 U.S. Dist. LEXIS 108 (E.D.N.Y. 1887).

Pincite

Opinion

Benedict, J.

This is an. action by a pilot to recover bis pilotage for taking to sea the ship Wallace, in February, 1885. The pilot took the' ship through the Swash Channel, and, while passing through the channel, the ship touched the bottom, and damaged her false keel to the extent of about $200. The defense set up is that “the libelant, in whose solo charge the boat was, directed her course through the Swash Channel in so negligent and improper a manner as to cause her to touch bottom.” The negligence here charged is not keeping the vessel in the channel while proceeding through the Swash. This charge is wholly unsupported by evidence. The negligence contended for in the brief of the claimant is in “attempting to take the ship through the Swash Channel.” The answer does not permit such a contention, but, if it did, the contention must fail. It is proved that the Swash Channel, although narrower than the Main Channel, has the deeper water, and is constantly used by vessels coming to and departing from New York; that, when this ship went through, the depth of water exceeded her draught; that the cause of the ship’s touching bottom was a heavy and unusual wave, which was encountered while in the channel, by which the ship was lifted so as to cause her to strike bottom; that when the pilot reached the Swash Channel there were large quantities of ice in the Main Channel, and before starting the pilot had been warned by the owner not to take the ship through the ice, because her bottom was of soft wood. These circumstances relieve the pilot of the charge of negligence. Attempting to take the Swash Channel under any circumstances is not to be held negligence, and I am not willing so to hold.

The libelant must have a decree for the amount of his pilotage, with interest and costs.

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Benedict, J.

This is an. action by a pilot to recover bis pilotage for taking to sea the ship Wallace, in February, 1885. The pilot took the' ship through the Swash Channel, and, while passing through the channel, the ship touched the bottom, and damaged her false keel to the extent of about $200. The defense set up is that “the libelant, in whose solo charge the boat was, directed her course through the Swash Channel in so negligent and improper a manner as to cause her to touch bottom.” The negligence here charged is not keeping the vessel in the channel while proceeding through the Swash. This charge is wholly unsupported by evidence. The negligence contended for in the brief of the claimant is in “attempting to take the ship through the Swash Channel.” The answer does not permit such a contention, but, if it did, the contention must fail. It is proved that the Swash Channel, although narrower than the Main Channel, has the deeper water, and is constantly used by vessels coming to and departing from New York; that, when this ship went through, the depth of water exceeded her draught; that the cause of the ship’s touching bottom was a heavy and unusual wave, which was encountered while in the channel, by which the ship was lifted so as to cause her to strike bottom; that when the pilot reached the Swash Channel there were large quantities of ice in the Main Channel, and before starting the pilot had been warned by the owner not to take the ship through the ice, because her bottom was of soft wood. These circumstances relieve the pilot of the charge of negligence. Attempting to take the Swash Channel under any circumstances is not to be held negligence, and I am not willing so to hold.

The libelant must have a decree for the amount of his pilotage, with interest and costs.

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Bluebook (online)

32 F. 672, 1887 U.S. Dist. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/comfort-v-the-wallace-nyed-1887.