Pangburn v. Norwegian Bark Gunn

3 F. 35, 1880 U.S. Dist. LEXIS 117

• Court: District Court, E.D. New York
• Decided: May 28, 1880
• Status: Published

Opinion

Benedict, D. J.

On the second day of August, 1878, the Italian bark Carmelita Eocca arrived in the slip off Kelsey’s stores, Brooklyn, and placed herself outside of the German ship Paulina, then moored on the upper side of the wharf. A squall was threatening, and two hawsers were at once run from the stem of the Carmelita Eocca to the pier. Before her bow fastening' could be put out, the Norwegian bark Gunn came into the slip in tow of a tug, and placed herself along-side of the Carmelita Eocca. The storm was then imminent. Those in charge of the Gunn commenced at once to make fast by running lines to the Carmelita Eocea. Two lines were' made fast to her, although warned that her fastening was not complete, and that permission to make fast to her could not be given. A hawser was also sent in a boat from the Gunn, to be made fast to the pie/. As the men were about t® put the hawser over the spile on the pier, the lighter Helen Brown, having lost control of herself in the storm which was then upon them, drove against the hawser and pulled it from the hands of the men who had it, and subsequently brought up on the stern of the Gunn. About this time the master of the Gunn jumped on to the Carmelita Eocca and made fast a third line to her, and at about the same time the two hawsers from the Carmelita Eocea to the pier parted, and both the Carmelita Eocca and the Gunn went adrift. They brought up on the canal-boat William Doran, lying further up in the slip, each vessel doing damage to the canal-boat. Some damage was also done meanwhile to the Carmelita Eocca by the Gunn, and some damage was also done to the German bark Paulina by the catching of her yards by the Carmelita Eocea as she went adrift.

Out of this occurrance the three entitled suits arose. The first is brought by the owner of the canal-boat William Doran, to recover for the damage done to that boat by the striking of the Gunn upon her. The second is by the same libellants, to recover for the damage done to the William Doran by the striking of tho Carmelita Eocca upon her. The third suit, which was brought in the southern district of New York, but is heard before me with the other causes, by consent, is by the owner of the Carmelita Eocca, to recover for the damages caused to that vessel by the act of the master of the Gunn in causing her to go adrift.

The defence on the part of the Gunn is that the damage arose from inevitable accident, and not from any fault on the part of those in charge of the Gunn. The defence on the of the Carmelita Eocca is that the damage done by her to the canal-boat was caused by fault of the Gunn, and not by any fault on the part of the Carmelita Eocca.

I do not deem it necessary to follow the careful argument that has been made on behalf of the Gnnn to justify the steps taken by those in charge of that vessel to make fast, and show that it was impossible for them to have done more that they did to get the vessel properly fastened before she broke adrift; for, as I view the case, the controlling fault on the part of the Gunn was in coming along-side the Carmelita Eocca at the time she did. The Gunn was in tow of a tug. A heavy storm was seen to be approaching. There is no evidence to show that the slip where these vessels were was the only or indeed a proper place to enter at such a time. It must be presumed that there were other places where the Gnnn could have made fast if the effort had been made in time, and perhaps she could have anchored without difficulty. Instead, she took the risk of getting into the slip where she was bound, and then making fast before the storm should break. In this she failed. The storm was upon her before she was made fast, and the consequence was the damage to these other vessels in the slip, who were guilty of no fault, and sustained injury simply because the Gunn attempted a dangerous maneuver to do what, according to her own showing, it was impossible for her to accomplish in the time at her disposal, namely, get properly fast to a pier in the slip.

It is said in behalf of the Gunn that she would have accomplished this had not the lighter Helen Brown struck her hawser as it was being run to the pier, and afterwards brought up upon her stern, and that the presence of the lighter was the immediate, unexpected and unavoidable cause of the accident that followed. But the storm was upon them before the lighter came. The delay in making fast the hawser, caused by the lighter, was but slight, and the weight of the lighter herself not great. The master of the Gunn had no right to calculate so closely in such a case. Some little delay in getting fast should have been allowed for. As it was, it is doubtful if the bark would have been fast in time had the lighter not been there at all. In regard to the suit of the Carmelita Bocea, it is to be remarked that the claim is not that the Gunn injured her by breaking adrift, but by causing her to break adrift.' The answer made to this, on behalf of the Gunn, is that the master of the Gunn, in fastening to the Carmelita Bocea, was actuated by a sense of peril, and th.e act may, therefore, be excused. His perturbation “carrieth a privilege,” it is said. But the difficulty is that he had no right, with his eyes open, to put himself in a place where he must necessarily be perturbed. Having placed himself where he must take the risk of dragging the Carmelita Bocea from her moorings, or suffer greater danger himself, he must bear the lesser loss that arose from his effort to avoid the greater one. He attempted a dangerous maneuver, and failed in the attempt.

My conclusion, therefore, is that the owner of the canal-boat is entitled to recover of the Gunn the damage caused to the canal-boat by the striking upon her of the Gunn and the Carmelita Bocea, and that the owner of the Carmelita Bocea is entitled to recover of the bark Gunn the damage sustained by her by reason of her being carried from her moorings by the Gunn. I am not able to see that the Carmelita Bocea is responsible to the owner of the canal-boat in any amount, for the evidence fails to show that her lines were insufficient; and as.to having the anchor hanging, viz., so that it caught the canal-boat, this was no fault under the circumstances, for on dire occasion it was the first duty of the Carmelita Bocea to make herself fast, and she had no time to secure her anchor before she was carried adrift. There will, therefore, be a decree in the first case in favor of the libellant, with an order of reference. A similar decree will be entered in the third ease. In the second case the libel will he dismissed, and all with costs.