Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1907-05-17
DECISION RENDERED
IN ADMIRALTY CASE


Judge Dole of the Federal District
Court this morning rendered a deci-
sion in admiralty on the defendants
exceptions to libel in the case of Pope
e Talbot ct al. vs. the Pacific" and
, the Fearless. The ruling of the
! Judge removes the dredger Paclflc
from the case, the Judge finding that
the act she is alleged to have commit
ted does not render her liable to at
lachment. Three Of the exceptions ara
over-ruled as to the Fearless.
The case is brought in relation to
an injury alleged to have occurred to
the schooner Mary e. Foster owned
by the libellants, she being about to
so to sea in the tow of the tug Fear
less. The libellee Pacific was at the
time dredging the channel of the Ho-
nolulu harbor. The tug Fearless on
starting to take the Mary e. Foster
out to sea, signalled by whistle to the
dredger as to which side of the dredg-
er she should take the dredger replied
with a reply signal that she should
take the EVA side of the channel. The
tow, upon passing between the dredg-
er and the Eva side of the channel,
grounded, and after some Intellectual
attempts to pull her off she floated off
at the next high tide, whereupon tha
Fearless made an effort to tow he!
back into the harbor by attaching u
line to her stern and towing her stern
first. Under these circumstances the
E'pDr.
less, ran into the reef on the Waikiki
side of the channel and was more or
less injured by the two standings The
.ibellants brought this action against
both of the libellees but upon different
grounds. The allegation against tina
Pacific is that she was grossly neglg-
ent in giving the signal referred to
Tor the tow to pass on the Eva side OF
the channel, which act of negligence
is alleged to be one of the proXimatG
causes Of the stranding of the said
schooner The act of the Fearless in
proceeding with her tow in response
to the signal mentioned is alleged to
be an act of gross negligence owing to
the narrowness of the space available
for said passage, and the second
grounding Of the schooner is charged
t. be due in part to the negligent tow
ing of such schooner by the Fearless
and in part as an indirect consequence
Of the negligence which led to her first
stranding.
Judge Dole finds cause of action
set out in the libel against the Fear
less. She had the schooner in tow
when both STANDINGS took place.
AS to the fourth ground of exception,
the question Of negligence, the signal
OF the dredger to take the Eva side
of the passage did not relieve the Fear
less Of responsibility in going there.
She was engaged in the business of
towing vessels in and out of the har-
Dor of Honolulu; and consequently was
acquainted with the channel in all
Weathers and tides, and should have
known whether or not the Eva side of
the channel between the dredger and
the reef was safe for her tow. For
her. therefore, to have assumed the
risk of attempting such passage. which
is alleged to have been unsafe owing
to insufficient width, was a fault which
makes her liable for the consequences.
The syllabus is as follows:
Act of Notwithstanding by a
dredger in fixed position:
A dredger at work in a fixed position
III ship channel, signals, in answer to
The inquiring signal of an approaching
lug with its tow, that certain side
Of the channel is open for her to pass.
the tug attempts the passage and its
&c. C,tt InI IIo1I 81,
mailing by the dredger was not an act
Of navigation that rendered it liable
TO attachment.
Admiralty Observation-Disclosures re-
ceived by ship in charge of a tug.
Held, under the circumstances set
forth above, followed by a second
strandlng of the tow while in charge OF
the tug, that an ACTION lies in admir-
Rlty against such tug.
Liability of tug for injury to its tow
dnder signal to proceed
Under the first mentioned circum-
stances, tug is not relieved of re-
sponsibility because of a signal favor
able to her proceeding through the
passage indicated
Liability for secondary consequences
OF a negligent act Interruption:
Liability for secondary consequences
OF a negligent act is relieved by the
lnterposition of second negligent act
or overpowerinS force.
An act Of necessity justifiable: A
necessary act is not negligent act
unless it is negligently done.
General allegation of negligence
A mere general allega-
ton of negligence in sufficient where
q necessary act is attempted and fails
under conditions likely to cause fail
ure, even though proper care and skill
is eyerciSed