The Nero

E.D. Pennsylvania

The Nero

189 F. 553, 1911 U.S. Dist. LEXIS 213

CourtDistrict Court, E.D. Pennsylvania

DecidedMarch 23, 1911

DocketNo. 26

StatusPublished

This text of 189 F. 553 (The Nero) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

The Nero, 189 F. 553, 1911 U.S. Dist. LEXIS 213 (E.D. Pa. 1911).

Pincite

Opinion

J. B. McPHERSON, District Judge.

There is no important dispute in this case except upon one point. The young man who was left in charge of the launch declares that the derrick enjoined him not to move his boat, and that he obeyed the injunction, although a slight change of place, which he could have made without trouble, would have avoided the collision. In my opinion the weight of the evidence is with the respondent in this matter; and certainly, if the warning testified to by her witnesses was actually given — and I find the fact to be as they have testified — the negligence of the launch is clear. This leaves to be considered the question whether the derrick was also, negligent in failing to take proper precautions under all the circumstances. In my opinion, she did all that could properly be required. She had no reason to suspect the presence of the launch, and only became aware of it when it is probable that the collision could not have been avoided. She is a large and unwieldy vessel, without power of her own, while the launch is a small boat, and could easily have been moved by hand with slight exertion by the young man in charge. The derrick might reasonably suppose that the launch would be moved the few feet that would have put her into complete safety, and I see-no negligence in the failure of the Hercules to put out a breast line to the short pier immediately to the north. I think it is' true that soon after the launch was discovered it was possible to throw a line from the derrick to the short pier, but it would have been necessary to send a man around the dock to catch it, and it is very doubtful whether hccould have reached the spot in time to check the movement of the derrick so as to avoid the collision.

I do not agree with the respondent’s contention that the launch was where she had no right to be. Pier 13 was open by permission of the owner to all boats having business there, and the launch was prosecuting her lawful business when she made fast to the pier upon the occa[554]*554sion in question. But, as I have already said, she was bound to take reasonable precautions to avoid collision, and in my opinion she failed to discharge the duty that was imposed upon her. She was a much lighter vessel and was much more capable of easy and speedy movement. In several respects the case resembles The Etruria (D. C.) 88 Fed. 555.

But I think the circumstances of this litigation should have some effect upon the disposition of the costs; and therefore, while the libel must be dismissed, I direct that the docket costs shall be equally divided, and that each party shall pay his own witnesses and the cost of taking and transcribing their testimony.

A decree to this effect may be entered.

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J. B. McPHERSON, District Judge.

There is no important dispute in this case except upon one point. The young man who was left in charge of the launch declares that the derrick enjoined him not to move his boat, and that he obeyed the injunction, although a slight change of place, which he could have made without trouble, would have avoided the collision. In my opinion the weight of the evidence is with the respondent in this matter; and certainly, if the warning testified to by her witnesses was actually given — and I find the fact to be as they have testified — the negligence of the launch is clear. This leaves to be considered the question whether the derrick was also, negligent in failing to take proper precautions under all the circumstances. In my opinion, she did all that could properly be required. She had no reason to suspect the presence of the launch, and only became aware of it when it is probable that the collision could not have been avoided. She is a large and unwieldy vessel, without power of her own, while the launch is a small boat, and could easily have been moved by hand with slight exertion by the young man in charge. The derrick might reasonably suppose that the launch would be moved the few feet that would have put her into complete safety, and I see-no negligence in the failure of the Hercules to put out a breast line to the short pier immediately to the north. I think it is' true that soon after the launch was discovered it was possible to throw a line from the derrick to the short pier, but it would have been necessary to send a man around the dock to catch it, and it is very doubtful whether hccould have reached the spot in time to check the movement of the derrick so as to avoid the collision.

I do not agree with the respondent’s contention that the launch was where she had no right to be. Pier 13 was open by permission of the owner to all boats having business there, and the launch was prosecuting her lawful business when she made fast to the pier upon the occa[554]*554sion in question. But, as I have already said, she was bound to take reasonable precautions to avoid collision, and in my opinion she failed to discharge the duty that was imposed upon her. She was a much lighter vessel and was much more capable of easy and speedy movement. In several respects the case resembles The Etruria (D. C.) 88 Fed. 555.

But I think the circumstances of this litigation should have some effect upon the disposition of the costs; and therefore, while the libel must be dismissed, I direct that the docket costs shall be equally divided, and that each party shall pay his own witnesses and the cost of taking and transcribing their testimony.

A decree to this effect may be entered.

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Bluebook (online)

189 F. 553, 1911 U.S. Dist. LEXIS 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-nero-paed-1911.

Opinion

J. B. McPHERSON, District Judge.

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