#### SNARE & TRIEST CO. v. THE UNITED STATES.

[No. 29998.

Decided January 28, 1911.]

*On the Proofs.*

There is a collision between the XJ. S. S. *Colorado*and the claimant’s barge. The case comes into court under a special jurisdictional act which creates no liability and imposes no condition. (Act 34 Stat. L., p. 2567.)

I.Where a claim is described in a jurisdictional act as *“for loss and damage to barge, tools, and machinery, resulting from a collision with the V. S. S. Colorado on the night of February 9, 1905,”*the recovery must be limited to the loss of the barge, tools, and machinery, and can not be extended to incidental losses, although directly proximate.

II.Where two vessels were moored at a dock and ice was accumulating in the river, and the situations steadily growing more serious, the circumstances were such as called for a high degree of care in the moorings of a vessel lying at the dock.

III. Where an ice floe was a sequence of prior manifest conditions sufficient to put the officers of a vessel on their guard, they should have forestalled the breaking away of their vessel by more than ordinary precautions.

IV. Where there was no eyewitness of a collision occurring at night the fact that the paint of one vessel was found rubbed upon the side of the other at the point of injury is an item of circumstantial evidence which may be considered.

*The Reporters'1*statement of the case:

' The following are the facts of the case as found by the court:

I. The claimant was engaged, under contract with the Government, in the work of constructing an extension to Piers Nos. 2 and 3 at League Island Navy Yard, near Philadelphia. In connection therewith it employed a derrick barge or lighter. On February 9, 1905, said barge was moored to Pier No. 2, near the end thereof, close to the stern of the U. S. S. Colorado, and adjacent to the work being done by claimants.

II. Prior to the mooring of said barge, to wit, on January 10, 1905, the U. S. S. *Colorado*had been put in the slip immediately adjoining Pier No. 2. The first mooring of *110the *Colorado*was done by the contractors who built her. On January 19, 1905, she went into commission, and the captain of the ship took command. The contractors merely secured the ship temporarily pending her formal delivery to the United States. Subsequently the commandant of the navy yard directed her mooring, and the arrangement of bow and quarter and breast lines, together with spur shores, were gotten into place and secured. On January 19, 1905, some slight changes in the moorings were again made, principally in the lines leading from the vessel toward her stern, to prevent her forging forward under strong winds; also one additional spur shore added to keep her off the pier. Between the ship and the pier was a small float, placed there originally to prevent the ship from fouling the pier and afterwards retained to prevent her swinging against the pier in case of an accident to the spur shores.

III. The U. S. S. *Colorado*was 502 feet in length, with her beam about 70 feet. At the time complained of she was moored in such a manner that the stern of the ship was about 25 feet distant from the derrick barge.

IY. During the month of January, 1905, ice in considerable quantities was present in the river. In the early part of February, 1905, a great amount of ice began to flow past the ship with the tides, up or down the river. Ice boats were at this time engaged in breaking the ice in aid of navigation. On February 9,1905, a very heavy flow of ice came down the river on the ebb tide. Sometime during the night of February 9, 1905, the ice on the ebb tide piled up around the starboard quarter of the *Colorado*until the pressure thereof forced her stern in toward the pier, carrying away the after spur shore, swinging the ship in against the float, tripping out of place the spur shores at the forward end of her, causing the chains by which she was moored to part and the stern of the ship to press hard against the derrick barge, crushing in a portion of the sides of the barge, from which the barge filled and afterwards sank. Immediately after the accident the Colorado was remoored at her former position with her own steel cables not theretofore used for the purpose, and remained under similar conditions securely moored for several weeks. Paint from the *Colorado*just applied to *111tbe ship appeared on the derrick barge at the place of the barge’s injury.

Y. The force of the collision against the derrick barge broke nine fender piles in the uncompleted pier, caused the loss of two derricks, one engine and boiler, and various tools employed about the use of the barge in the service in which it was then engaged. The derrick barge did not break away from its moorings after the collision; after the same was raised she was found to be securely moored.

YI. The reasonable value for making the repairs to said barge and restoring the necessary machinery, including the expense of raising the same, is $2,000.

*Mr. E. 0. Brandenburg*for the claimant. *Mr. F. Walter Brandenburg*and *Mr. Clarence W. De Knight*were on the brief.

*Mr. F. W. Collins*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

Booth, J.,

delivered the opinion of the court:

This case comes here under a special jurisdictional act, as follows:

> “AN ACT For the relief of Snare and. Triest Company.

> *“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,*That the claim of the Snare and Triest Company for reimbursement for loss and damage to barge, tools, and machinery, resulting from a collision with the U. S. S. *Colorado*on the night of February ninth, nineteen hundred and five, at the League Island Navy Yard, be, and the same is hereby, referred to the Court of Claims, with jurisdiction to hear and determine the same to judgment: Provided, That the petition is filed within six months from the passage of this act.” (84 Stat. L., 2567.)

The language of the jurisdictional act circumscribes the extent of the judgment. The recovery is limited to the loss of the “ barge, tools, and machinery; ” incidental losses, although directly proximate, are excluded. The Congress has frequently granted relief to claimants for injuries sus*112tained by the negligent conduct of its agents, and almost uniformly limited the extent of recovery as in this case. *(St. Louis & Miss. Valley Transportation Co.*v. *United*States, 33 C. Cls., 265, and cases there cited.) The claimant herein was engaged in executing a contract with the defendants. The subject matter of the agreement was the construction of an extension to Piers Nos. 2 and 3 at the League Island Navy Yard near Philadelphia. In the prosecution of the work a derrick barge or lighter was an indispensable adjunct, and on the night of February 9, 1905, was moored to Pier No. 2, then an uncompleted part of the contract work. The U. S. S. *Colorado*was moored to the same pier on January 10,1905. She had been put into the slip by her builders and was brought to the navy yard pending her final acceptance by the Government. The contractors simply moored the ship temporarily; after she went into commission she was more securely moored by authority of the commandant of the navy yard and subsequently made fast in the usual and customary way by her regular officers. The accident complained of occurred on the night of February 9, 1905. Prior to the event considerable ice had accumulated in the river; ice boats were employed in breaking the same, and the situation as respects its presence was constantly growing more serious. There were no eyewitnesses to the collision, but it is admitted by all the testimony in the record that on the date of its happening the ice situation was unusual, severe, and extremely serious.

The ice coming down the river on the ébb tide accumulated in great volume around the ship, and, as described in Finding IV, disengaged its moorings, broke her chains, and caused her to change her position in such a manner as to strike the smaller vessel of the claimant, which- resulted in her going down. The most significant circumstances attesting the fact of the collision was the presence of paint on the derrick barge at the point of her injury, and the unmistakable absence of similar paint from the stern of the *Colorado.*The derrick barge never did break her moorings, and when subsequently raised by the claimant showed an injury in but one place, directly opposite the position the *Colorado*must have occupied at the time of the collision.

*113*The Nellie*(139 Fed., 753) is a case strikingly similar to the case at bar. The common-law liability as to negligence is applicable in cases of marine collisions; applying its principles, elementary and quite familiar, brings this case fairly within the rule and establishes liability.

The circumstances surrounding the situation of the *Colorado*called for a higher degree of care in her moorings than was exercised. The ice floe which brought about her changed position was the sequence of prior conditions manifestly apparent, and a constant menace. It was not sudden and unexpected. The officers in charge of the ship were put upon their guard respecting this danger, and should have forestalled the accident by more than the ordinary precautions usually observed under normal conditions. *{The*Nellie, *supra; The*Drumcraig, *183*Fed., 804; *The*Severn, 113 Fed., 578.)

The cases cited above answer the defendants’ contention of inevitable accident. The facts do not bring this case within the rule.

Judgment is awarded the claimant in the sum of $2,000. It is so ordered.