against the Sarah Thorp, and dislilissing the libel of the of the Sarah Thorp against the America. 44 Fed. Rep. 637. of the Sarah Thorp appealed from both decrees to this court. The Affirmed. , Jariwa Parker, for the Sarah Thorp. Sam."w, Park. for the America. Before WALLACE and LACOMBE, Circuit Judges.
PER CURIAM. We agree with the conclusions of the district judge that the vessels were meeting end on, or nearly so, and that the Thorp failed to nppreciate the situation by reason of her effort to avoid the sailing a maneuver which placed her in danger of collision with the Amerka. The new testimony as to the usual courses of boats such as the Ampl'ica.1 when coming up the Sound under like conditions of wind and tidt:l,40es. not seem to us to warrant the rejection of her positive tesHmopyt4at she passed near Stratford point. The course sworn to by her'master isuot unreasonable, harmonizes with subsequent events, and would pring the vessels into view of each other, end on or nearly SOj the testimony from the America is corroborated by the independent witness from the barge in tow. The decree oithe district court is affirmed, with costs.
THE SOUTH BROOKLYN. CASTLE
THE SOUTH BROOKLYN.
April 25, 1892.)
(District OOUrt, S. D. NflW York.
COLLISION-VESSELS AT PIERS-OBSTRUCTING FERRY SLIP-SAGGING.
Where the e,vidence indicawd that libelant's canal boat was projecting some 80 feet across the mouth of a'ferry slip, contrary to the city ordinances. and the lights of the canal boat were hidden bya tug until the ferryboat was within 100 feet, and that the approach of the ferryboat was cal'efnl, and, after the lights of the canal boat were seen, the best that the ferryboat conld do, in view of the locality and the was to go ahead, and not stop and back outside of the slip, it was held that tlie ferryboat was not in fault for entering her slip, nor for the collision whioh ensued by the sagging of her quarter against the enoroaohing boats.
In ,Libelfor collision. Hyland &:Z<ibriakie, for libelant. Burrill, Zabriakie &: Bur-riU, for claimants. BROWN,District Judge. After dark on the 29th of October, 1891, a o'clockp. M., as the ferryboat South Brooklyu was going into her slip between piers 2 and 3, East river, her stern was carried by flood tide against a tier of five canal boats which had made a landing a few minutes before at the end of pier 3, whereby the stem of the libelant's boat, which was the outer boat in the head tier, was damagqdby tile braces of the ferryboat beneath her guards. The Wl\8 filed to recover the damage.
,: THE SOUTH BROOiLYN.
The libelant contends that the damage'was not done by the first contact with the ferryboat, but by her hacking after the contact and then going ahead, without giving time for the canal boats to be moved away by the two tugs which were outside of the canal boats. All the witnesses upon the ferryboat, however, testify that she did not back at all; and that the damage arose from the first contact, through the sagging of the ferryboat in the tide, and her continued motion forward until stopped, the braces crashing across the stem of the libelant's boat. Such I find to be the weight of proof. The case, therefore, turns on the question whether the canal boats were in a proper place, or were wrongfully encroa<;:hing upon the entrance of the slip; and if so, whether the ferryboat was, notwithstanding that fact, chargeable with negligence and fault in not avoiding them. The libel.ant contends that the canal boats did not encroach upon the entrance to the slip, nor extend beyond the westerly line of pier Several of his witnesses, however, give uncertain testimony on this point; while Deats and Harris, who were most positive in his favor, also testified that the ferryboat struck the piles at the corner of pier 3. This is so conclusively disproved as to show that those two witnesses Me not to be relied on. The witnesses from the ferryboat and other disinterested witnesses testified that the canal boats did extend to the westward of the line of pier 3 a considerahle distance, variously estimated at from 20 to 60 feet. The circumstances of the situation are sufficient to demonstrate the incorrectness of the libelant's theory in this particular, and to show that the canal boats did encroach considerably upon the entrance to the slip. Measurements show that the slip is about 144 feet Wide; that pier 2 projected but 10 feet beyond pier 3; that the ferryboat was 184 feet long, and her extreme width 62 feet; .and that the brace next aft of the ferryboat's paddle box, which was the first point of contact with the stem of the libelant's boat, was 122 feet aft of her stem and 62 feet forward of her stern. In entering the slip the ferryboat grazed the piles at the corner of pier 2 along the blutf of her port bow, and then continued moving ahead, being five or ten feet from the side of pier 2 at the time of collision. Now, if models be placed upon a plot of the slip drawn to scale, it will be seen to be impossible that the collision could have happened between the brace aft of the paddle box and the stem of the libelant's boat, had not the libelant's boat encroached considerably upon the slip. The tug Berwind was inside of the .five canal boats; so that the stem of the libelant's boat must have been at least 95 feet outside of the end.of pier 3, and with the port bow of th!l ferryboat near the rlick along pier 2, the stem could not have struck that brace 122 feet aft of the stem of the ferryboat, unless. the canal boat .had run at least 30 feet to the westward of the line of pier 3, and by so much encroached on the .entrance to the slip. The canal boats had no right to take such a position. It is prohibited by the city ordinances (Rev. Ord. 1866, p. 293) and was an unlawful obstruction to the slip. This I am quiteaatisfied is the prirp.arycause of the collision.
think, sufficient to charge the ferryboat in attemptipg: to enter her slip instead of outside unhave ,bElen withdrawn. Until the ferryboat ba,(,.l.approl,l.ched within 100 feet or the slip, she had no reason to supthere material obstruction to her entrance. Coming a,rl:u,mg, the west, s4leof GO,\l:ernor's island, the ferryboat had seen the;lights, of the tug rmlQving in the ali p, had sounded an alarm signal, and. :sIQwedwhen at a considerable distance; and then the tug was observl/d! tp back out of tlle way. The position and height of the bows of the',tug were such as t.o hide the much lower lights of the canal boats in of the pier until the was within 100 feet of the slip; and ,even ,had those lights ,been visible and seen before, their position would not have been such as to show clearly intbe nighttime that the cano.! "boats were encroaching upon the entrance to the slip. The tug herselfr'w4S able to go further back at any moment., When the canal were seen, ,I ,am satisfied that a worse collision would have hapPelYl9, had the ferryboat reversed. Under the circumstances I think she,qid was wisest and safest; namely, to go on under a jingle bell to make, tll,estraightest l)0ssible entrance into the slip. ;Eyen· the canal ,boats been seen earlier. projecting some 30 feet aero!¥! the slip,.butleaving about 112 feet space for the ferl'y1)OOt'sentrance, Iam.not prepared to hold that the ferryboat would bA \:w.,",lJld ,to waH outside until the ,canal boats should be withdrawn. In S\wl:!. caSEls. where a. reasonable space is lelt, and where the danger frortl,,(mUision is only &uch comparatively small injuries as may arise from the sagging of boats against each other in the entrance of slips, it might,l think, well bEl that boats which unlawfully obstruct the aHtbe ri&ks of the sagging arising from variable currents, thp, entering uses reasonable skill; and that where is still left, the ferryboat should not be held chargeable witil fault for attempting to enter at alL See The Expre88, lU. S. App. 109,49 Fed. Rep. 764. Without passing, however, "pon thn latter point, 1 am satisfied that the libel should be dism41sed .1iIpon tbe grouuds previously stated, with costs.
RAn.ROAD OF NEW JERSEY 11.
, ,,(DtBtrwt Oo'Wtt. S. D.Ner» York.' April 25, 1892.)
"A'steiilii,. tu.k'*as g,O ingqp 'tb'e North river wltb a car" float alongslde. A ferryboat o ,started. 'trdm New York: to .Communipaw,the llourses of the ves,els,thus being cross'Wl!lQ witlflt4e ferryboat 0ll thestarbQlIrd hand of the tug. ,The ferry'boat·tiloWed Ja!JOut otte'third of 'the Way aeros.s tbe river to allow a raft to pass, She then I!tarted up, and a balf minute aftergllve onewblstle to ,the tug, when the