
    THE POTTSVILLE.
    (District Court, S. D. New York.
    June 11, 1908.)
    Towage (§ J 5) — Loss of Tow — Liability of Tug.
    Evidence considered, and held not to sustain tlie allegation of a libel that the sinking of a coal barge while in tow on a hawser was due to the fault of the tug in towing her on a rock, but to show that it was the result of tempestuous weather which caused a collision between such barge and another tow.
    [Ed. Note. — For other cases, see Towage, Cent. Dig. § 36; Doe. Dig. § 15.]
    In Admiralty. Suit against tug for loss of tow.
    Wilcox & Green, for libellant.
    Kneeland & Harrison, for claimant.
    
      
      For other cases see same topic & § Number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   ADAMS, District Judge.

This action was brought by James H. Cullen, the owner of the barge Edward F. Cullen and the bailee of cargo of coal laden on board, to recover from the tug Pottsville, the damages sustained by reason of the sinking of the barge and cargo on the 12th day of November, 1906, while being towed on a hawser from New York harbor to New Haven, Connecticut. The accident happened off Shippan Point, near Stamford, and the libellant claims that his boat was towed on a well-known rock. The claimant contends that the boat following the Cullen was forced by the inclement weather to strike the stern of the latter, causing her to fill and become swamped.

The libellant’s contention is that the tug was towing entirely out of a proper course so that the boat was dragged over a rock inside of the light, while the claimant contends that the tow was pursuing a proper and usual course, a half or three-quarters of a mile to the southward of the light on said point.

The libellant’s contention is sustained solely by the testimony of the master of the boat on board. His testimony, however, is very seriously discredited and the claimant’s sustained by the fact that shortly after the accident he made an affidavit as follows:

“New York, Nov. 15, 1906.
This is to certify that I, Captain N. B. Cahoon of the boat ‘Edward D. Cullen’ left Brooklyn, about 1:30 P. M. on the 12th inst. in tow of Tug ‘Pottsville’ my boat being port hauser boat, bound for New Haven - with 650 tons of Chestnut coal. Boat Leslie R. was starboard hauser boat and boat ‘McGus-ker & Shroeder’ towing under my stern. We passed Execution Light about 7 P. M. wind North, Northwest and when about abreast of Long Neck Point, the wind shifted West, Southwest and blew hard, causing a heavy sea to run. Boat McCusker & Shroeder hit my stern in the sea and caused my boat to sink about 11:30 P. M. off Ship Ann Buoy. [Signed] N. B. Cahoon.
Sworn to before me this 15th day of November, 1906.
[Seal.] William A. Evans, Notary Public, New York County.”

The claimant produced several witnesses from the tug and tow who testified that the accident happened as alleged by the answer. The account is shown to be correct by the fact that the tug, which drew nearly a foot more than the Cullen, suffered no injury, which must have happened if the libellant’s theory of the accident is correct. I find no corroboration of the libellant’s account in the wounds received by the boat on the. bottom. She was raised by pontoons after the sinking and was doubtless injured thereby and by being sunk on the rocks.

. The libel is dismissed.  