McMILLAN v. MORAN

McMILLAN v. MORAN. (Circuit Court of Appeals, Second Circuit. January 7, 1902.) No. 60. Towagfi — Injury of Tow— Neomgkncb of Tus. The master of a tug did not exercise reasonable prudence in attempting to take a tow under the Brooklyn Bridge when it was high tide, or nearly so, knowing that at mean high tide there was a margin of safety not exceeding one foot between the mast ol' the tow and the bridge, and the tug is liable for the damages caused by the breaking of the mast against the bridge. Appeal from the District Court of the United States for the Southern District oí New York. Chas. C. Burlingham, for appellant. J. Parker Kirlin, for appellee. Before WALLACE and LACOMBE, Circuit Judges, and TOWNSEND, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. While we do not agree with all the findings of fact in the opinion of Judge Brown in the court below (107 Fed. 149), we agree with him in the more essential facts in the case, and concur in his conclusion that the tug did not exercise due care under the particular circumstances in performing the towage service. Her master was informed that the mast of the tow was about 134 feet high. Assuming that he had a right to suppose that the bridge was 135 feet above the water at mean high tide, the margin of safety was too narrow in the condition of the tide at the time. He ought to have been aware, upon observation of the piers and slips, that it had receded but a little. In taking the chances when this was apparent or should have been, he disregarded reasonable prudence. Decree affirmed, with interest and costs.