THE W. C. KIRK

THE W. C. KIRK. (District Court, D. New Jersey. January 23, 1906.) Collision—Vessels at Wharf. While a barge 20 feet wide was discharging on one side of a creek 40 feet wide, a canal boat 17 feet wide was placed alongside to discharge upon the other side, and left during the night, and when the tide receded the vessels sagged together, and the barge was injured. Held, that the canal boat should not have been left in such close proximity to the barge, and was in fault; also that the barge was in fault because during the afternoon and after the canal boat was placed she moved farther up, where the stream was narrower, which brought her closer still to the other vessel. In Admiralty. Suit for collision. David O. Watkins and J. Boyd Avis, for libelants. Francis C. Bowthorp, for claimant. [MAJORITY — LANNING, District Judge.] LANNING, District Judge. The libelants’ barge Idella, loaded with crushed stone for the city of Woodbury, was tied up to the libelants’ wharf in Woodbury creek at the city of Woodbury, for the purpose of discharging her load, early on the morning of April 24, 1903. She was 80 feet long and about 20 feet in width. The creek at the point where the barge was moored is only 40 feet in width. During the day the canal boat W. C. Kirk, composed of two boxes—a bow box and a stern box, each loaded with coal—was brought up the stream. Before reaching the place where the Idella was located the two boxes were separated and the stern box taken in by the side of the Idella and tied to the wharf on the opposite side of the stream and unloaded, without accident. This box was then removed and the bow box of the canal boat brought up and tied to the wharf opposite the Idella. The Idella and the bow box of the W. C. Kirk remained at their respective wharves during Friday night. The bow box was 17 feet in width. As the tide receded early Saturday morning the Idella and the bow box of the W. C. Kirk came into contact, and the Idella was injured by the pinching she received. The proofs satisfy me that the W. C. Kirk ought not to have been taken in by the side of the Idella and left there during the night. The two boats were very close together at high tide, and those in charge of the canal boat should have foreseen the probability of accident as the tide receded. Those in charge of the canal boat were clearly guilty of negligence. But the proofs also satisfy me that late on Friday afternoon the Idella was moved by the libelants’ employés several feet farther up stream than she had previously been. By this movement the Idella was taken into a narrower part of the stream, and therefore closer to the W. C. Kirk. At that time the employés engaged on the W. C. Kirk were unloading the bow box, but there could have been no reasonable expectation on the part of those in charge of the Idella that the bow box would be unloaded in time to remove her from her place at the wharf before the next day. This movement on the part, of those in charge of the Idella was consequently an act of negligence. Both parties being guilty of negligence, there must be a division of damages. There will be a reference to a commissioner for the purpose of ascertaining the damages. The final decree, when entered, will be for one-half of the damages proven.