This action arises out of a singular occurrence, which took place at a bulkhead at the foot of 63d street, in New York City. On that day the scow proceeded against, which was being loaded with stone upon her deck at the foot of 65th street, sprang a leak, and was hauled from the foot of 65th street to the foot of 63d street, and there moored alongside of the sloob Nancy Anna. Shortly after she was made fast, she took a sudden lurch toward the bulkhead, and threw about twenty tons of the stone from her deck into the water between her and the sloop. She then took a still heavier lurch the other way, and rolled off on the outside of .her all the remaining load, when, being thus suddenly relieved of a great weight, she rebounded with such violence as to throw her out of the water and upon the sloop alongside. The sloop’s fore rigging kept the scow off forward, but aft she dropped upon the sloop so as to criisli the sloop’s rail and break her down aft for a considerable distance. This action is brought to recover for the damages thus occasioned to the sloop.
These facts are not disputed. Some others are in dispute, and among them the quantity of water in the scow when she came alongside the sloop, and also whether the lurch of the scow arose from swells caused by passing steamers. Without determining these questions, I find in the evidence of the master of the scow clear proofs that the accident arose from negligence on his part. For he says that what threw his vessel out of the water in such an extraordinary manner was because of her striking the bottom when she made the last lurch.
This statement, if taken to be correct, shows clear neglect, in that the scow was placed where she would strike the bottom. The master was not only chargeable with knowledge of the depth of water where he placed his vessel, but he had actual knowledge, for he lay in the same place the day before. He also says that he knew that waves caused by the Harlem boats often rolled in there, and that they had rolled upon him.
If, then, the accident is to be attributed to the shallowness of the water where the scow was moored, it was a fault to moor her there.
If, on the other hand, the scow rolled off her load because she was waterlogged, it was fault to place such a vessel alongside another vessel, where she could do such injury. Let a decree be entered for libellant, with an order of reference.