In Admiralty. Suit to recover from tug for grounding of tow. ADAMS, District Judge. This action was brought by James T. O'Donnell to recover the damages he sustained through the grounding of his barge Palestine, in Newtown Creek, on the 4th day of March, 1896, while in tow of the steamtug Royal. The barge was bound for Chapman's dock on the creek, near Grand Street, loaded with about 300 tons of sulphur. She was taken in tow by the tug in the morning about 8:40 o'clock, on the port side, and when a point opposite the Kings County Oil Works was reached, she grounded. The libellant alleges that the barge was run on a ledge of rocks in the middle of the creek and her bottom stove in. He charges the tug with fault: "(1) In that she did not tow said barge Palestine in safety. (2) In that she did not tow said barge in such manner as to clear said ledge of rocks. (3) In that she did not navigate said barge in a proper channel for said tow. (4) In attempting to start to tow said barge at low water." The answer alleges: "On the fourth day of March, 1896, the steamtug Royal which was owned by this claimant approached the barge Palestine at the mouth of Newtown Creek for the purpose of towing her to the head of said Creek; that said Newtown Creek is not navigable to vessels of large draft at all stages of the tide; that at said time the tide was the commencement of the flood; that the master of said tug Royal asked the master of the Palestine what water his vessel was drawing and the latter replied seven feet. As the water in the Creek was sufficient for a vessel of said draft and relying upon the representations of the master of the Palestine, the said tug Royal took said barge in tow alongside and proceeded carefully up said Creek. That she proceeded up said Creek in safety until she reached a point in mid channel about abreast of the Queens County Oil Works when the said barge Palestine took the bottom and sustained some slight injury. That said barge Palestine was drawing at the time much more than her master stated to the master of the Royal and would not have grounded if her master's representations had been true." It appears that the barge did not strike a ledge of rocks as claimed but grounded on the hard bottom of the creek, in the middle of the channel. The disputed questions in the case on the facts are: (1) the state of the tide, the libellant contending that it was ebb tide and the claimant that it was flood, and (2) the draught of the boat, the libellant contending that it was between 7 and 8 feet and the claimant that it was fully 9 feet. 1. The testimony shows that on the day in question it was high water at Governor's Island at 11:43 o'clock A. M. At Newtown Creek the tide was 1 hour and 23 minutes later than Governor's Island, so that it was high at the place in question about 1:06 P. M. At Newtown Creek it was low water about 7:30 o'clock A. M. This accident happened at nearly 9 o'clock A. M. and there had at the time been more than an hour of the flood tide. This contention of the claimant is clearly sustained. 138 F.-27 2. The draught of the boat is shown by the circumstances to have been in excess of 9 feet. The Royal drew 81⁄2 feet and she passed over the place safely in going down the creek to meet the Palestine. In going up, she did not touch. At this time the tide had swollen several inches. Immediately after the grounding, soundings were made by the tug by means of a pole and over 9 feet were found in the immediate vicinity of the sunken boat. The necessary conclusion seems to be that there were over 9 feet in depth of navigable water where the boat struck. This is confirmed by a government chart in evidence, which shows not less than 10 feet in the place in the channel where the grounding took place. It is sought by the libellant to overcome the latter facts by testimony from a tide expert, located at Fort Hamilton, who said on this day at that place the tide was unusually low, some 1.95 feet below the normal. Granting that to be the case, and assuming the height of the tide to have been the same at the place of grounding, it does not seem to change the situation. There was still plenty of water for the barge, if the draught had been as stated by her master, upon which the tug was entitled to rely. The Coney Island (D. Č.) 115 Fed. 751. Notwithstanding an unusually low tide, there was ample water for the barge on the draught as given by her master to the tug. It appears by a stipulation between the parties that if the tide expert were recalled, he would testify that the tide on the morning in question was .64 of a foot below the level of mean low water. Such being the case, the libellant's argument in this connection is materially weakened. On the whole, the testimony of this expert rather tends to sustain the claimant's contention than otherwise. Considerable stress was laid in the argument of the libellant on the draught marks of the boat. The marks were intended for use on the canal and would not have given accurate information as to the draught of the boat in the more buoyant waters of New York. It does not seem that the tug's navigators were bound to examine the boat for marks after the master had stated what her draught was or to rely upon them if found. These marks are not apparently common to all boats of this character used about New York and are not relied upon here for information, when it is obtainable from the master. Libel dismissed. THE S. S. WYCKOFF. THE GERTRUDE. (District Court, S. D. New York. June 2, 1905.) COLLISION-STEAMBOAT AND TUG WITH TOW-FAILURE TO FULFILL PASSING AGREEMENT. A tug having four light boats in tow on a hawser, three abreast in the first tier held solely in fault for a collision between the port boat in such tier and a meeting propeller in the channel at the lower end of Newark Bay, on the ground that, after having agreed by signal to pass by keeping to the right, she failed to keep her tow to the right side of the channel, but proceeded until the collision, although for want of sufficient depth of water she was compelled to keep near the center. In Admiralty. Cross-suits for collision. Carpenter, Park & Symmers, for Thames Towboat Co. and tug Gertrude. Wilcox & Green, for propeller S. S. Wyckoff and N. Y. & N. J. Steamboat Co. ADAMS, District Judge. These actions arose out of a collision which occurred between the barge Hope, in tow of the tug Gertrude, and the steam propeller S. S. Wyckoff, in the dredged channel leading from the Kill Van Kull to the Arthur Kill, the 4th day of May, 1904. The Gertrude and tow were bound through the Kills to Elizabethport and Perth Amboy. The Wyckoff was a freight boat, plying between points in the Kills and New York. The weather was fair and the tide the last of the ebb but there was very little current running. The Gertrude's tow was on a hawser and consisted of 4 light boats, one of which was to be dropped at Elizabethport and was alone in the last tier. The remaining three boats were made up in the leading tier, which had a width of about 90 feet. The hawser was about 25 fathoms in length and led from the tug to the outside boats of this tier. The Wyckoff left Elizabethport at 5:30 o'clock and when approaching the Corner Stake Light observed the Gertrude and tow approaching from the eastward. The Wyckoff blew a signal of one whistle to which the Gertrude responded with one. Just after the Wyckoff rounded the Corner Stake Light from a course of about East 1⁄2 North to an intended one of about South South-east, her port bow, near the stem, came in collision with the port bow, near the stem, of the barge Hope, the port boat in the leading tier of the tow of the Gertrude. Each vessel charges the other with fault in not keeping to the right hand side of the channel and the controversy turns upon the determination of the question whether the boats fulfilled their agreement and duty under the law to pass to the right. It appears that the Wyckoff, drawing about 8 feet, was keeping along the starboard side of the channel, probably about 50 feet from its edge on that side, when the whistles were exchanged. The Gertrude owing to her draught, 131⁄2 feet, was unable to keep to the right hand side because there was not enough water for her to navigate in far from the center of the channel, where there was a depth of 14 or 15 feet but it commenced to shoal up on the side, and as soon as she attempted to get further to the starboard, she stirred. up the bottom and was obliged to give up the attempt after getting a short distance, estimated at 30 or 40 feet, from the center. This was a channel dredged by the Government in the lower part of Newark Bay, to connect the Arthur Kill and Kill Van Kull, and the chart gives but 14 feet. There was not enough water far from the immediate center for the Gertrude to navigate in and she was obliged to keep near the center. The Wyckoff did not know, however, that the Gertrude could not keep well to the starboard and proceeded on the theory that she could and would do so. The result was that when the Wyckoff made, or attempted to make, her turn at the Light, she found the tow of the Gertrude ahead and not enough room to make the turn herself, as she was a boat of 135 feet in length. She therefore reversed but not in time to materially check her headway of about 8 miles. The Gertrude kept on at her speed of 31⁄2 miles into the collision. The consequence was considerable damage to the Wyckoff and the Hope. The collision occurred somewhat to the southward and westward of the center of the channel. A criticism is made upon the Wyckoff's navigation for not turning more sharply than she did around the Corner Stake. If she had gone further towards the center, for which there were 75 or 100 feet of room between her and the Gertrude, doubtless she could have made a better turn and perhaps avoided the collision, but that is light which comes after the event. The agreement was to keep to the right and she fulfilled her part, or would have done so if the Gertrude had left her the room she was entitled to, but the Gertrude failed to keep her tow away from the Wyckoff's waters, owing to her draught and the width of the tow. It seems to me that the Gertrude was solely in fault for the collision. The libel of the Thames Towboat Company is dismissed. That of the New York & New Jersey Steamboat Company is sustained, with an order of reference. NAPIER v. WESTERHOFF et al. (Circuit Court, S. D. New York. March 8, 1905.) PRELIMINARY INJUNCTION-INSUFFICIENCY OF SHOWING. The granting of a preliminary injunction and the appointment of a receiver held not warranted, under the pleadings and the proofs on the motions therefor, where the insolvency of defendants was not alleged, and it appeared that the granting of such motions would disastrously affect their business. On Motion for Preliminary Injunction and Receiver. Stern & Rushmore, opposed. TOWNSEND, Circuit Judge. The allegations of complainant's moving and replying affidavits present a condition of affairs which, if proved, would call for the interposition of a court of equity. Some of these allegations are met by direct denials in the answering affidavits, but it is not satisfactorily shown by these denials alone that this court ought not to grant some relief. The complaint, however, comprises such a variety of inconsistent charges and prayers for relief that it is difficult to determine the measure of complainant's rights, or the extent of the relief which should be afforded. Furthermore, it is clear that the granting of an injunction and appointment of a receiver would disastrously affect the business of the defendants, while, in the absence of allegation of their insolvency, it does not appear that the complainant will be irreparably damaged by the continuation of said business. For these reasons, it is thought that the questions involved should not be determined upon ex parte affidavits. Motion denied. In re PARK. (Circuit Court, S. D. Ohio, W. D. May 27, 1905.) SALES-FRAUD-REPLEVIN-CONSPIRACY-EVIDENCE-IRRELEVANCY-TRADE SE CRETS. Where plaintiff, a seller of a proprietary medicine, brought replevin to recover a car load thereof on the ground that it was purchased pursuant to a fraudulent conspiracy by the buyer to ultimately resell the same to defendants, P. & Sons Co., in violation of certain contracts between plaintiff and the buyer, and that P. & Sons Co. were not entitled to purchase such medicine, an officer of such concern was not entitled to refuse to answer whether the company ever purchased any of such medicine or had any interest therein, or to refuse to produce correspondence relating to the sale, on the ground that such questions were irrelevant, and tended to require disclosure of trade secrets, consisting of the names of the persons through whom such company obtained goods from plaintiff. [Ed. Note.-Disclosure of trade secrets, see note to S. Jarvis Adams Co. v. Knapp, 58 C. C. A. 8.] Action by Samuel B. Hartman against William O. Feenaughty and others to recover certain goods. On application for an order to compel Ambro R. Park to answer certain questions on his deposition taken before the clerk of the court in response to a subpoena duces tecum. Samuel B. Hartman brought suit in the United States Circuit Court for the Western District of New York in replevin against William O. Feenaughty as an individual and as sheriff of Steuben county, N. Y., and others, to recover possession of a car load of Peruna manufactured and sold by plaintiff to McKesson & Robbins, New York City, and shipped and billed to that firm. They reshipped the same, without unloading, to one Charles H. Loveland, of Binghamton, N. Y., in alleged violation of a contract then existing between plaintiff and McKesson & Robbins, of which Loveland had notice; and also in violation of a contract existing between Loveland and plaintiff he reshipped said Peruna to one M. W. Chambers, of Dayton, Ohio, for John D. Park & Sons Company, who had no notice of said contracts, the delivery of which Peruna was prevented by the replevin proceedings. Plaintiff claimed that the order for said goods and the obtaining a delivery thereof from plaintiff was the result of a fraudulent conspiracy between McKesson & Robbins, Charles H. Loveland, and John D. Park & Sons Company, in violation of contracts subsisting between plaintiff and McKesson & Robbins and Charles H. Loveland, and that M. W. Chambers was simply an intermediary or cover for shipment to John D. Park & Sons Company, and that it was the intention of McKesson & Robbins, Charles H. Loveland, and John D. Park & Sons Company in this way to get the Peruna to John D. Park & Sons Company in vio |