Hudson River Cement Co. v. The Emperor

S.D. New York

Hudson River Cement Co. v. The Emperor

46 F. 143, 1891 U.S. Dist. LEXIS 36

DecidedMay 5, 1891

StatusPublished

This text of 46 F. 143 (Hudson River Cement Co. v. The Emperor) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hudson River Cement Co. v. The Emperor, 46 F. 143, 1891 U.S. Dist. LEXIS 36 (S.D.N.Y. 1891).

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Opinion

Brown, J.

The tug Garrison, in going down the East river about dusk on November 19, 1890, came in collision, a little above Catharine ferry-slip, with the libelant’s barge Isabella, in tow along-side of the tug Emperor going up, about 150 feet only off the end of the piers. The account of the collision given by the pilot of the Garrison is that, as he was going down in about mid-river, a ferry-boat came out of the Roosevelt ferry-slip, which is immediately above the East River bridge abutment, and gave him a signal of one whistle, in obedience to which, he ported his wheel to go to the right; and that as the ferry-boat passed him [144]*144she opened up under her stern the Emperor and her tow, so near to the Garrison that collision was then unavoidable. On examination I find it quite impossible to accept this theory of the collision on the ebb-tide. The collision could not have occurred where it did occur had the Emperor with her tow come up from below the ferry-boat as the latter canxe out from her slip. The men on the Emperor must also in that case have inevitably seen the ferry-boat, and several of their witnesses testify that no ferry-boat was seen. There can be no doubt that, if the ferry-boat came out at the time stated by the Garrison’s pilot, she came out astern of the Emperor, and that the Emperor and her tow were all the time in full view, both lights and hulls, it not being yet dark. The Garrison had no lookout, and it is probable that the ferry-boat engaged all the pilot’s attention, so that the Emperor and her tow were not noticed until quite near. The case is one of those in which the absence of a lookout proper on the tug, as required by law, becomes material. The omission of the lookout, though often immaterial, is always at the tug’s risk. The Emperor twice gave timely signals to the Garrison, which were also unnoticed. There was plenty of time and space‘for the Garrison to have avoided running into the tow. At the collision she had changed her course about 10 points, and was heading 2 points up river. Though the Emperor was navigating near the New York shore, and not in mid-river, as required by statute, yet, as she was in plain view, and gave repeated signals in time, and as there was abundant space for the Garrison to have avoided running into her tow had any proper attention been given her, the fault is deemed that of the Garrison only; and the Emperor’s navigation in the wrong part of the river is treated as not the proximate cause of the collision, and immaterial. The Francis, 44 Fed. Rep. 510, 512. Decree for libelant with costs as against the Garrison, and libel dismissed with costs as respects the Emperor.

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Brown, J.

The tug Garrison, in going down the East river about dusk on November 19, 1890, came in collision, a little above Catharine ferry-slip, with the libelant’s barge Isabella, in tow along-side of the tug Emperor going up, about 150 feet only off the end of the piers. The account of the collision given by the pilot of the Garrison is that, as he was going down in about mid-river, a ferry-boat came out of the Roosevelt ferry-slip, which is immediately above the East River bridge abutment, and gave him a signal of one whistle, in obedience to which, he ported his wheel to go to the right; and that as the ferry-boat passed him [144]*144she opened up under her stern the Emperor and her tow, so near to the Garrison that collision was then unavoidable. On examination I find it quite impossible to accept this theory of the collision on the ebb-tide. The collision could not have occurred where it did occur had the Emperor with her tow come up from below the ferry-boat as the latter canxe out from her slip. The men on the Emperor must also in that case have inevitably seen the ferry-boat, and several of their witnesses testify that no ferry-boat was seen. There can be no doubt that, if the ferry-boat came out at the time stated by the Garrison’s pilot, she came out astern of the Emperor, and that the Emperor and her tow were all the time in full view, both lights and hulls, it not being yet dark. The Garrison had no lookout, and it is probable that the ferry-boat engaged all the pilot’s attention, so that the Emperor and her tow were not noticed until quite near. The case is one of those in which the absence of a lookout proper on the tug, as required by law, becomes material. The omission of the lookout, though often immaterial, is always at the tug’s risk. The Emperor twice gave timely signals to the Garrison, which were also unnoticed. There was plenty of time and space‘for the Garrison to have avoided running into the tow. At the collision she had changed her course about 10 points, and was heading 2 points up river. Though the Emperor was navigating near the New York shore, and not in mid-river, as required by statute, yet, as she was in plain view, and gave repeated signals in time, and as there was abundant space for the Garrison to have avoided running into her tow had any proper attention been given her, the fault is deemed that of the Garrison only; and the Emperor’s navigation in the wrong part of the river is treated as not the proximate cause of the collision, and immaterial. The Francis, 44 Fed. Rep. 510, 512. Decree for libelant with costs as against the Garrison, and libel dismissed with costs as respects the Emperor.

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Bluebook (online)

46 F. 143, 1891 U.S. Dist. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hudson-river-cement-co-v-the-emperor-nysd-1891.