The Cascade , 73 F. 270 ( 1896 )

COXE, District Judge

(after stating.the facts). The discussion at the argument resulted in establishing the -following propositions: First. The libelant was free from fault. Second. The accident was. not inevitable. Third. It was not due to an inscrutable fault. Fourth. It was due to the negligence of the Cascade, or the Unadilla, or both. Fifth. If the chock had not broken the collision would have been avoided, or, at least, the force of the blow would have been greatly diminished.

The first four of these propositions are conceded. The fifth is established by a preponderance of evidence. There can be little doubt that the breaking of the chock was the proximate cause of the accident. Had the chock held the injury would have been averted altogether. The vessels might have come together, but not with sufficient force to cause damage.

It is very difficult to determine, from the testimony, just what caused the sheer in the first instance. It might have been produced either by the heel of the schooner being caught on the edge of the shoal, or by the bad steering of her helmsman. The helmsman was not produced and it would seem that no very diligent effort was made upon the part of the Unadilla to secure his presence. Were it necessary to find definitely upon this proposition I am inclined to think the weight of evidence, direct and presumptive, tends to the conclusion that it was the helmsman’s action.in swinging the schooner’s bow too far to port which caused the commencement of the sheer. No other cause has been established. The evidence fails to show fault upon the part' of the Cascade. The master was a competent pilot. He knew the river at Black Bock harbor well. He had landed a large number of vessels at Byan’s dock and always successfully. The course pursued by him was the usual one. He did no negligent act, he omitted nothing which care and prudence dictated. Whether it was prudent or otherwise to shorten line after rounding up it is unnecessary to determine, for the reason that it is clearly proved that the sheer commenced some time after the line was taken in and was in no wise attributable to that maneuver.' Although there is considerable dispute upon the testimony as to the position of the Unadilla and the location of the shoal I am convinced that the schooner’s heel was not caught upon the shoal. The evidence upon this point is certainly conflicting, but even if it be conceded that it is impossible to say with certainty what caused the sheer, it does not aid the Unadilla when a plain fault, such as the giving way of the chock, is attributable to her. The testimony is that sheers of this kind are very apt to occur at the point in question. There is nothing particularly dangerous about such a situation; if the tackle holds the tug has no difficulty in controlling the movements of the schooner. The Unadilla was required to furnish suitable and sufficient means to enable the tug to tow her safely, and if the accident happened by reason of her failure in this regard she alone is responsible. The chock gave' way in a manner which indicates either that it was improperly constructed or else ivas out of repair from long use. Tire monkey rail, which was of oak, did not break or give way, indicating that the strain was not an unusual one. The bolts simply pulled out, and the whole structure was precipitated into the river, and, of course, was not produced in court. With such a plain and undisputed fault before the court it is unnecessary to search further for the cause of the accident. The insufficient chock was not the fault of the tug, but of the schooner. The libelant is entitled to a decree with costs against the Unadilla, and a reference to compute the amount. As to the Cascade the' libel is dismissed, without costs.