
    THE ORIZABA.
    (District Court, E. D. New York.
    May 29, 1923.)
    Shipping <§=>86(2) — Evidence held insufficient to prove damage sustained in striking pier was caused by swells from libeled steamship.
    In libel for damage to ship, sustained when it struck pier as result of heavy swells, evidence held insufficient to prove damages were caused by swells from respondent steamship.
    In Admiralty. Libel by the Iron Steamboat Company of New Jersey against the steamship Orizaba, claimed by the New York & Cuba Mail Steamship Company.
    Deeree of dismissal.
    Decree affirmed 3 F.(2d) 999.
    Herman Goldman, of New York City, for libelant.
    Burlingham, Veeder, Masten & Fearey, of New York City, for claimant.
   CAMPBELL, District Judge.

This is a suit in admiralty to recover damages for injuries alleged to have been caused to the steamer Pegasus by the steamer Orizaba. On July 17, 1920, at about 8:55 p. m., the steamer Pegasus, of the Iron Steamboat Company, had backed into the slip between Pier 1 and Old Pier 1, North River, to dock. She had linos out, but'had not been docked, when she started to roll,' as the result of heavy swells, and her starboard side struck Old Pier 1, causing the damage of which complaint is made.

The libelant claims that the swells were caused by the steamer Orizaba. The master and pilot of the Cygnus, another Iron steamboat, ' testify that they saw the Orizaba throwing spray over the sea wall of Governor’s Island as she passed and causing a swell. The pilot said he watched the swell for a mile, and then attempted to correct that statement, but the impression he left on my mind was that the first statement represented his belief. I am "of the opinion that both the master and pilot of the Cygnus testified with an honest belief in the truth of their statements, and I can readily understand that in passing the sea wall of Governor’s Island at a distance of 200 feet therefrom, coming up from the south end to the north end, it would not require very heavy swells to throw up the spray; but that was from half a mile to a mile distant from Pier 1.

The speed at which the Orizaba was traveling when she reached the south end of Governor’s Island, and the swells she was then causing, could not be responsible for this accident; nor could the speed at which she was traveling and the swells she was causing until she was about to turn and was turning into the East River, be responsible for the accident. As she was until about to turn into the East River, headed in the general direction of the Battery and Pier 1, and up to the time she was. about to turn to enter the East River, the swells she was causing, to have reached Pier 1, would have had to go from half a mile to one mile forward of the bow of the Orizaba. The swells caused by a steamship go out fan shape as the vessel passes, and the width of the channel determines the’ force at the shore as the swell loses force as it travels.

The Orizaba did enter the East River that night, and did dock at Pier 14 on the New York side. To do that she had to go around the north end of Governor’s Island into the East River. There was a flood tide, and if the Orizaba had rounded Governor’s Island with any such speed as libelant contends, she never could have stopped at Pier 14. What did happen was that she was met at the head of Governor’s Island by a towboat, and she must have greatly reduced her speed, and in all. probability stopped her engines, as the master testified, because between Governor’s Island and the Battery she was taking a line from a towboat, and, with the tide running flood, no towboat would have dared to pass her a line, if she was going at any speed, and therefore the Orizaba could not have been causing any swell when she passed between Governor’s Island and the Battery.

There were arches under Pier 1 which allowed the flow of water, and a swell coming from the direction of Governor’s Island, if large enough, could have passed under the pier. But in my opinion a swell of the character claimed by the libelant could only have been caused by a vessel passing at high speed through the water, as it is the effect 'of the passing of the vessel and the action of the propeller that causes the swell.

Other towboats joined the Orizaba to aid in docking her, and favored by the wind she would have had no reason to use ■ her engines after rounding the north end of Governor’s Island, except to assist the towboats by backing. I do not believe that the accident which happened to the Pegasus could have been caused by a swell from any vessel, except one passing up the North River in front of Pier 1, and in that I agree with the two disinterested witnesses, the pilots of flreboats of the city of New York, whose station is at the Battery, where their boats are moored; that dock being nearer to the north end of Governor's Island than Pier 1, one of whom was observing the conditions at the time.

On the day in question an attempt had been made to sail one of the International yacht races, but, the air being light, neither yacht was able to finish within the time limit. The Orizaba had been out as-a passenger boat for the races and was returning home. She was not able to make top speed, because she was using but five of her eight boilers, but until about the south end of Governor’s Island she was making about 14 knots an hour, when she slowed down and was going about 3 or 4 knots an hour before she reached Castle William at the north hud of Governor’s Island, when the engines wefie stopped.

Coming in, the Corsair, a fast yacht, preceded the Orizaba, and as the Orizaba came up from quarantine she was passed by three destroyers going at high speed, one of which was the pressboat. The master and pilot of the Cygnus testify that the destroyers stopped off Ellis Island and did not go up the North River, and I believe that they are perfectly honest in their belief, and it is probable that at least one (the press-boat) did stop to let off the reporters; but the master and pilot of the Cygnus had their boat, which required their attention, and I therefore believe that Pilot Ploser, of the fireboat, which was moored at the Battery, and who had no boat which required his attention, had a better opportunity to observe, and that he was right when he said that the destroyers went up the North River. He also said that he saw the Orizaba off Governor’s Island headed up the East River, and a towboat waiting for her; that he saw-the Orizaba as she passed the Battery and Governor’s Island, and that there was nothing remarkable about the water in the way of disturbance; but that there was a disturbance before that, when the destroyers passed up the North River, which was before the Orizaba passed into the East River.

1 am therefore of the opinion that the damages suffered by the Pegasus were not caused by any swell from the Orizaba, and that the Orizaba is in no degree blamable for the injuries suffered by the Pegasus.

A decree may be entered, dismissing the libel, with costs.  