Phillips v. The Energia

• Decision Date: 04 April 1893
• Citation: 56 F. 124
• Parties: THE ENERGIA. v. THE ENERGIA. THE WILD PIGEON. PHILLIPS et al. INSURANCE CO. OF NORTH AMERICA v. THE ENERGIA and THE WILD PIGEON.
• Court: U.S. District Court — Southern District of New York

56 F. 124

THE ENERGIA. THE WILD PIGEON. PHILLIPS et al. v. THE ENERGIA.

INSURANCE CO. OF NORTH AMERICA v. THE ENERGIA and THE WILD PIGEON.

United States District Court, S.D. New York.

April 4, 1893

Owen Gray & Sturgis, for the Wild Pigeon.

Wing Shoudy & Putnam, for the Energia.

Butler Stillman & Hubbard, for the insurance companies.

BROWN District Judge.

The above libels were filed to recover damages arising from a collision near buoy C 4, in the 'Cut Channel' of the Lower bay, at about 11:30 o'clock in the forenoon of December 22, 1892, between the steamship Energia, outward bound, and the two-masted schooner Wild Pigeon, laden with coal, bound eastward from South Amboy. Both vessels were damaged. The steamship had some plates broken and was obliged to return to New York, discharge a part of her cargo, and make repairs; while the schooner after collision drifted on the shoals to the eastward of the Cut channel, where she sank and became a total loss. The first libel is to recover the value of the schooner and cargo; the second was filed by the underwriters upon the cargo of the Energia, to recover for damages to the cargo on board the steamship, which, upon abandonment, was settled for by the insurers, the amount having been actually paid since the filing of the original libel. A supplemental libel was filed on the 14th of February, alleging payment, to which an answer was filed setting up the exceptions in the bill of lading as respects negligence, and its stipulation that 'the law of England should govern the contract.'

The Cut channel, in which the collision occurred, is about a thousand feet in width, by 30 feet in depth at low water. The tide was about one-third ebb at the time of the collision, so that the actual depth of water in the Cut channel was about 33 feet. The Energia was a steamship of about 2,000 tons register, 337 feet long, and at that time drew 23 1/2 feet of water. The wind was west-northwest, and the steamer was proceeding along the easterly or port side of the Cut. The schooner, on first coming out from South Amboy, had designed to go up through the Narrows and out by way of the Sound; but upon a more favorable turn of the weather, the master concluded to go out by way of Sandy Hook, and thereupon hoisted his mainsail and took a course of east by south, a change of several points to the starboard of his previous course. In behalf of the steamer, it is claimed that this change of course was a violation of the obligation of the sailing vessel 'to keep her course.'

I have carefully examined all the arguments of counsel in support of this contention and the evidence bearing on it, and am unable to sustain it. To say nothing of the testimony of the schooner's witnesses, who assert that this change of course was made several miles from the Cut, it is manifest from the testimony of the pilot and of the second and third officers of the steamer, that the schooner's mainsail was up, and that she was heading out to the eastward when at least a mile and a half or two miles distant. The heading spoken of by them at that time was a heading manifestly to go out by way of the Hook, and not a heading to go up through the Narrows. They speak of some minor changes in the schooner's heading made afterwards; but the evidence on this point is very indefinite in itself, and manifestly is not sufficient to outweigh the testimony of those in charge of the...