The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-10-28


stop at these ports and that he would put through in
five months he said he would positively stop at Rio and
Valparaiso and perhaps at Juan Fernandez Adjourned
U. 3. District Court.
Ger Decision BY Hon Judge Judson -Jomph Walters
The Brig Radius The two vessels in controversy
the sch Splendid Augustus master and
the brig Radius Solomon D McGraf, master. The da-
mage which is the subject matter of the libel the
total loss Of the schooner the ed day Of Decsmbsr
1919 under the following circumstances Pier 80 East
river is 344 feet long, the short pier the south sds
1872 feet long and tie breadth Of the clip between them
the brig Radius and two other vessels lay at the inner
end Of the slip and the schooner Splendid In the
slip within almost so feet of the foot Of the pier The
schooner measured % tons and the brig 300 and
The length Of the schooner was "a feet and the
length of the brig l25 feet Both vessels we're made fast
the epiles in the usual way and at O'Clock in tho
morning the Radius let go her fastenngs, and with
view of going out by the aid of she hauled
down the Flip to the position Of the schooner and made
fast directly outside the schooner covering the be-
tween hertelf and the pier with the lines Of the brig
master Of the schooner then inquired how long the brig
expected to lay in that position when Capt Nc Graz
piled but short time only waiting for q steamer to
take him in tow" Thus far all is right. and for that
purpose the brig had right place herself
veniently for the approach Of the steamer Towards
the steamer but the tide did serve. and
the weather began to be owery and at IL o'clock Capt
McGrsf concluded not to leave the slip until Monday
morning the GATH end then left the Radius the
Of chip keeper, and went he says, to coun-
termand his order to the steamer until Moncay,
leaving the Radius made fast, at frst with
position to remain unchanged until Mon
day. Here the important aspect
and from this time tho acts Of the parties become
decisive the controversy The Of the schooner
being absent the charge OF her remained with his mate
In the afternoon OF saturday while the storm was IN
cressng, Captain McGrsf returned to the vessel when
the mate Of the schooner requested him to slack his bow
line and the schooner to pass out This request
Is to by the schooners mate and Captain Nc trail
the fact admission Of its TRUTH
but he adds that he could not let the schosner out with
safety to the brig The may be narrowed down to
occurred to the schooner We are now to inquire into
the cause Of the damage where the blame rest and
how far the justification set up by the respondent
avail him for having destroyed the schooner Nothing
short Of justification can answer the issue To use the
i'm presve Of the witnesses the schooner
smashed by the brig, and she went down If the
brig had not AIKEN her postion-if she had
schooner out as requested-thsn the loss would not
have occurred There ground pretenoe that the
schooner was in the wrong or that she escape from
the fasteDings fore and aft placed there by the brig
without the consent Of the schooner The brig Is the
active instrument Of tine destruction Of the schooner and
1t not too much to say that the respondent must show
legal justification The burden of proof rests with
the brig Here We have the justification IL The re-
spondent claims that the brig could have been hauled
out or in at all because Of the gale The proof on this
point entirely fails; and there is neither question
doubt but what the brig might with safety to her
self at all times between twelve and four O'Clock have
been moved from her position. to safe position
for herself ahead Of the schooner There enough
in the slip; and the storm and the danger ap-
preached the master legally bound to do aud in
The omission Of that obvious duty, he guilty OF
negligence. z.
about clock made request that the Capt Of the brig
would slack his bow line let the schooner
when he on board the brig about o'clock that he
refused TO do and assigns the of his REFUSAL
that this 0uvre would endsnger the brig This act
Of the master a the brig places him in still greater
wrong The brig had stern line made fast TO the pier aft
the schooner which held her while her bow line
slack but enough let the schooner haul ahead
All that required TO relieve and the schooner
give that line slack ugh let the scho
pass over H. and then both lines OF the brig might have
hean faut and he bfiy mi eafs
before neither apology for this neglect
Of plain and positive duty But the respondent claims
psh that he must have line from the bow Of the
brig the slip to the opposite pier, and made fast
there which could not be done, for the additional reason
that city ordinance prohibited such an act, under
penalty q ten dollars Revised ordinances page 3is,
Sec No person shall place any cable rope chain or
ten dollars II is urged here, that this ordinance
Is positive in It's character, and the master wosld
have subjscted hmsef TO the penalty, had this
been done to relieve and save the schooner.
This construction of the ordinance too technical for
the in question In constituting all lave, to
consider the object the mischief the remedy This
ordinance was designed TO prevent obstrucous to tbs
free passage Of vessels into the slips There was at tho
time approaching vessel TO be obstructed aud more
over the schooner was In imminent danger Of destruc
tion and that imperous necessity would have been
justified by the spirit q the ordinance The cited
by counsel Goes not sustain the construction urged
3. We have the re.poDaents own view Of the case In
the defence assumed II Is simply this:-rhe master Of
the brig had lawful right TO leave his original position
In the slip, and make fast the outside Of the small
schooner be did this and possessing that
right and having exercised u lawfully the lay justices
bis remaining there under all circumstances; that ths
maritime law will not oblige him TO move his brig at
the expense Of single dollar to the haxaard Of
that sum. To sustain this position, witnesses
called in 10 show that large vessels frequently made
outside q small craft and that IL lawful and
customary TO do Whatever moral duty and obliga
ton might indicate, still there no legal obligation
which would compel its performance The court has
been called upon TO apply these principles 10 this
end sanction their application, by decree against tbs
libel The court is not Of any such rusg 10 the
admiralty practice. The claim IL much too broad.
with IL more reasonable and equitable spirit. Rather
would ray that aser q a shp should understand
that in Of imminent danger to another ship IL
his duty TO do all In his power TO avoid the injury,
especially when bis acts constitute the only danger
In the case The respondent has not only neglected
plain euty but has illegally and wrongfuly been the
out fault Of the other party The decree will be for the
btellsnt with reference to ascertain the damages.
Before Hon. Judge Judson.
Der. 4-Tive BHs.-The grand jury came into court
this morning, with true bills against Charles Johnson
Thomas Mensgan. George Osborne, aud Joseph Thomp-
SON for endeavor make n revolt board the ship
Liberty slao against John Lavart for assault With
dang rous weapon John Greene, on board the brig
Zenophon
Pals, pY,,erc,s in Enisnr The bills Of Indictment
against William Stuart, John Kelly and Henry Red
wz for fslse pretences in obtaining sustepance and
clothing from the United states swearing they we're
twenty years Of age not found and the accused
we're discharged.
Chors,s Of Layouy--The bills Of iadctment against
George iams for stealing letter and against Joha
Johnson larceny on the high also dismissed.
Marine Court.
Before the Hon Judge Lynch.
.-0cr T.-Tnpisonine s,smen in Fresn aii,-Wshs-s
FaknT John Roed-In this case, the plaintiff, vho
seaman on board the Marian Gage claims damages
Of who was aster for false in
ffr. fatl In tha ofn In mt