propriety of exercising it in that instance, was not challenged; therefore I cannot rep;ard my decision in that case as a precedent to affect the d&cision in thii.
STERLING. OF THE CITY OF NEW YORK.
et at v. 'MAYOR, ETC.,
(Dtstrf.ct Court, S. D. New York. Jane 15,1891.)
BOA'r. A tug, with a tow on a hawser. coming towards New York throug"h the middle passage of Hell Gate on tbe ebb-tide, has tbe right of way over a tug with.a light tow along-side, bound tbrough Hell Gate into the Harlem rh-or, and it is the duty of ,the latter tug, on an interchange of one whistle between the vessels, to take the eastern channel, or at least to wait below, in a place that is well'out of tbe way of the (Ie,seending tow, ' 9. SAME-Town:G ON HA WSEE-TOWING A'LONG-SIDE. Tbe comparative safety Of towing th.-ougb ;Hell Gate on a hawser and along-side considered.. ' ,. ,
COiLJ,leJON-HELL GATB"7:M:JDDLB P.uSAGB,.....RIGHT OFWAT-DuTT
Carpenter &; Mosher, foilibelallts. James M. Ward, Asst. Corp. Colinsel, for respondents.
BROWN, J. At ab6btnalf past 2 o'clock in afternoon of December 23, 1889, as the libelants' two-masted in tow of the tug Sterling, on a hawser of from 30 to 35 fathoms, was coming west.. ,val'd on the ebb tide through Hell Gate by way of the passage between :Flood rock and Mill rock, came in collision \"ith the responderits'steam-tug Dasori, which had a light scow in tow along-side, and was bound up the Harlem river. The schooner wa$ struck on the port side, near hermain chains, and sustained damages for','which the above libel was filed. As the tug in to\" passed Hallett's point, there was an?ther tug, the Temple, with a three-masted schooner in tow on a hawser ahead or them, which wellt aroUlld: the north side of Mill rock by way of the main ship channel; Hnd the Sterling, instead of' going behind the Temple, preferred to take the middle passage, which, since .it was blasted ol.lt about two years ago, has become the easiest, the n10st direct, and the safest course for such vessels coming westward on the ebb-tide. The Dasori at that time was in the vicinity of Horn's hook, some little distance but in the river, having come past Blackwell's' islarld by the northerly . channel. When the Sterling was about to enter the middle passage, which the Dasori perceived, a signal' of one whistle was exchanged be,\ I · ·
stitt for damage by collision.
.1Reported by Eil'Wil.rd G. Benedict, Esq., of tlie New York ba.r.
tween" them, indicating;that each was to keep to the right. The witnesses fa!' the Dasori contelliLthat she' did so;· that she went into comparatively slack water some, 200 or 300 feet only to the south-west of FloodrQck, very near the edge of the eddy fanned by the three currents that come down the easterly,' the middle, and the northerly channels; that she held her position there substantially without change; and that the collision was caused by the sagging of the schooner to the southward down upon the Dasori, when the schooner struck the Harlem river tide coming out of the middle passage. The contention of the libelants is that the Darosi was all the time making headway; and that, in conseqtience ofa port wheel, or of the effects of the tide current of the middle passlige, or both combined, she turned so far to the northward and westward as to strike the schooner with her stem'Iiearly at right angles. The captain oLthe Dasori, who is the defendant's only witness as respects her navigation, insists that the blow at collision was nearly parallel, by the sagging of the one against the other. The proof as to the nature of the damage is scarcely sufficient to determine with certainty that the blow was made by the stem of the Dasori; although it would seem less probable that the blow was simply a side blow, as the latter's·witnesses contend. Without reference to that, however, and upon broader principles, I think the Dasori,and not the tug or schooner, must be held in fa.ult for this collision. It was the duty of the Dasori to keep out of the way of the tug and tow. The latter were coming down with the tide through a difficult passage, and they had the right of way as against the Dasori, which was a powerful tug, coming up from below with a light scow alongside, which she could handle with ease. The Galatea, 92 U. S. 439, 446; The Marshall, 12 Fed. Rep. 921. It was the duty of the Dasori to remain at a proper and safe place below, or·to the eastward, until the tug and tow had passed the point of danger, or else to have gone on by the easterly passage. The account offered by the pilot does not exculpate him; for it is clear from the respondents' own witnesses that the Dasori, if there was any difficulty in, remaining out of the way of the tug and tow ,while they were coming down the middle passage, could easily have gone up the Harlem river by way of the easterly channel between Flood rock and Hallett's point. That course, Mr. Bell states, is pursued with car-floats as much as the course by way of the northerly channel, and it is almost as direct as that channel. The libelants' experts confirm this testimony. Upon an exchange of one whistle, therefore, that channel was the proper course for the Dasori to follow. City of Hartford, 7 Ben. 350; City of Springfield, 26 Fed. Rep. 1.58, 160. The position where the DaRori chose to wait, according to her own testimony, until the schooner had passed, instead of proceeding up the easterly channel, was voluntarily chosen, and in no way forced upon her. She took the risks, therefore, of that situation, unless she proves fault in the schooner, which I do not find proved. There is no evidence that the schooner was not steered with ordinary skill. The libelnnts' witnesses say she followed the tug, and there is no proof that she sagged much out of line with the tug. There is nothing in the circumstances, so rar as appears, different
from usual; alid if, as the Dasori's pilot states, the collision was in the slack water near the edge of the Harlem river tide, and on the edge of the eddy, that position, as the result proves, was an unsafe one, which she ought not to have assumed. He had no right to suppose that the schooner would hold a perfectly straight course, unaffected by the change of the current. That was impossible.. Some sagging by both the tug and the tow on entering the Harlem river tide was unavoidable, and was to have been anticipated by the Dasori, even if the latter had remained substantially at rest. I do not think it at all probable, however, the collision occurred simply by the sagging down of the schooner, nor by a parallel blow. It is more probable that the first impact was with the stem or bow of the Dasoriat a considerable angle, as the libelants' witnesses testi(Yi and that the Dasori, in the eddy and whirlpool below Flood rock, got a swing that she did not or could not counteract. Instead of stopping there, she could have gone onward by the easterly channel. So far as I can perceive, it was not possible for the collision to happen in the edge of the eddy or slack water where Capt. Golden supposed it happened. The schooner, coming down in the fuU tide of the middle passage, with an additional speed of about four kuots through the water, must inevitably have entered a considerable distance into the Harlem river current. She could not have sagged into the slack water at the edge of it. So that the collision must have been'in the full current, either of the middle passage or' of the Harlem river tide, and not in any eddy or slack water below Flood rock. Upon the contradidoryevidence as to the comparative safety Of towing through Hellgate upon a hawser or along-side, it does not seem necessary to express any opinion. Both methods of towing have been practiced so long, and by pilots of such competency and repute, that, though the advocates of each mode assert their preferences strongly, I'do not feel warranted in adjudging either to be in itself faulty, or proof of negligence. The Josephine B., 45 Fed. Rep. 909. Each method has its own difficulties. Nor does experience show any decided preponderance of accidents arising in one class of cases more than in the other class. The causes of collision, and the modes of avoiding them, are generally found to be independent of either mode of towing, and such is the case here. Decree for the libelants, with costs.
THE HARY H'WILLIAHS.
THE MARY MCWILLIAMS.' THE CITY OF BROCKTON. COLONY STEAM-BOAT CO. DELAWARE
THE MARY MCWILLIAllIJ. THE CITY OF BROCETON. June 16, 1691.)
(Distr'ict Court, S. D. New York.
Where large vessels attempt to pass each other in the easterly channel of Hell each, on the interchange of signals, is bound to keep on its own side of the channel. The City of Bo, a large side-wheel steamer, bound New York, and the tug M. M., with a barge on her port side, and bound eHst, met at Hell Gate, and exchanged a sigOl\! bf one whistle, the meaning of which both understood to be that they could PllsS in the easterly channel, the middle channel being occupied by another steamboat. In passing, the port paddle-wheel of the City of B. came in contact with the barge, which was sunk. Each boat claimed that the collision was caused by the of the other vessel to keep to its own side of the channel. Out of a great conflict of evidence the court adopted the testimony of the pilot of a ferry-boat which was coming up astern of the tug, he being in the best position for accurate . o1;servation and for a comparison of both sides of tbe channel, and on such testimony held that the tug was the encroaching 'vessel, and was liable for the collision. .
OF EVIDENCE-'STAND-POINT OF
MEETING IN HELL GATE-EAST CHANNEL-DUTY.
l'.. SAME-AOREEMENT TO PASS IN EAST CHANNEL. . On the evidence in this case, held, that an agreement 1;y signal between large vessels to pass in the east channel of Hell Gate is not in itself a fault in either vessel.
In,AdmiraHy. Cross-suits for damages by collision. Shipmo:n, Laroque &- Choate, for the City of Brockton. Carpenter &- Mosher, for the Mary McWilliams.. ' Bristow, Peete &- Opdyke, sc()w and libelant Fisher.
BROWN, J. The above libels grew out of a collision in Hell Gate at about quarter past 8 A. M., November 15, 1890, between the large sidewheel steamer City of Brockton, coming from Fall River to New York, and, .Barge 3295, loaded with coal, bound east with the flood-tide, in tow of the tug Mary McWilliams, upon the latter's port side. The place of collision was in the easterly channel, nearly abreast of Flood rock, and between that and the Astoria shore. The. port quarter of the barge was carried against the paddle-wheel of the City. of Brockton, and the former was so damaged as to sink almost immediately. The morning was somewhat hazy, but not so as to t>revent vessels Jrom being seen at a erable distance. When the Cit)' of .Brockton had s() far passed Hallett's as to open up the river to thesollth-west, the tug Mary McWillia1US was seen off the Astoria ferry, or below; and soon afterwards a signal pC one. whistle was exchapged between them. The steamer EXpldSS waS ,a short ·of the City of BrocktoJil, and went down the
Edw!lrd G. Benedict, Esq., of the New YOi"k