1;'eJlderedwholly.on land and not deemed maritime; and hence not rise to any maritime .lien. See .The Thames, 10 Fed. Rep. 848;1 The Orystal'Stream, 25 Fed. Rep. 575; The Paola R., 32' Fed. Rep. 174; Doolittle v. Knobeloch, 39 Fed. Rep. 40; Marquardt V. French, 53 Fed. Rep. 603. To Elsesser, only the amount accruing since the vessel was owned by the foreign company, viz. $131.98, with interest from May 1,
To Wanser, $170.40, with interest from December 1, 1892. To. Reed,. $184.95, with interest from December 1, 1892. To Roberts & Bro., $232.47, with interest from December 1, 1892. Decrees may be entered accordingly, with costs.
THE ROYAL. THE SUPERIOR. THAMES TOWBOAT CO. .,. THE ROYAL et aL
Oourt of Appeals, second Circuit. February 7, 1893.)
The decision. ofa.. federal district judge upon questions of fllct in a collision case should not be disturbed on appeal unless so inconsistent with evidence to the' contrary, irrespective of facts depending wholly on the credibility of witnesses, as to Sil.tlsfy the appellate court that they are incorrect. A tl'w in the .east river was passing near a ferry sUp when a ferryboat trying to wake the slip crossed the bows of the tug at a distance "of about 300 ft.," but without fault failed to wake the slip, and was carried out into the river, colliding with the tow. Held, that the decision of the trial judge that the steamer did not back into the river, but that the colllsion was due, to the rebound, and that the tow was negligently passing too near the slip,$hould not be reversed by the appellate court on the ground that a mathematical calculation would show that the tow must haVfl been at a reasonable distance from the pier, and the collision therefore must have been caused by. the backing of the ferryboat, and not by the ,rebound, when the speed of the tow and the ferryboat, the force of the cUrrent, and other elements in the calculation, are uncertain.
COLLISION-Tow AND FERRYBOAT, A'J: PIER.
Appeal from the District Court of the United States for the Southern District of New York. In Admiralty. Libel by the Thames Towboat Oompany, owner of the barge Afton, against the steam tug Royal (the Newton Oreek Towing Company, claimant) and the ferryboat Superi()r, (the Brooklyn & New York 'Ferry Oompany, claimant,) fol' collision. The district court dismissed the libel as against the Superior, and entered a decree against the Royal. The 'Newton Oreek Towing Oompany appeals. rAffirmed. :Peter. (Alexander & Ash, on for appellant, claimant ,9f the Royal. Samuel' Park and Geo;' B. Adams, (Wilcox, ·.Adams & Green and FrankJin.4- Wilcox, on the brief,) for appellee the Superior. LACOMBE, and Judges.
W Circuit Judge. This case arises from a. collision on the New York near the which occurred in the East entrance to the ferry slip between piers 56 and between the ferryboat Superior and the barge Afton, which was then in tow of the tug Royal. The collision occurred in the afternoon of a. clelltr and the tide was strong flood. The ferryboat was making one of her regular trips from Brooklyn to the slip mentioned, and the tug and tow were proceeding down the river on the New York side on a course parallel with the ends of the piers. The Afton was being towed on a hawser about 180 feet long. The ferryboat shortly before had passed in front of the bows of the tug to make her slip. She failed to make it, and was trying to enter it when she came in contact with the tow at the bluff of the latter's starboard bow. The question in the case is whether the tug and tow were pro-" ceeding down the river so near the ends of the piers when the collision took place that the notwithstanding she was not guilty of any fault or could not avoid striking the tow. Upon the evidence there is no reasonable support for the theory that the ferryboat missed making her slip, and struck the end of rack A by reason of faulty navigation; and it must be taken as established and uncontradicted that by reason of the swift and suddenly changing currents of the eddy at the slip su.chan occurrence is at times un· as is con· avoidable, and was upon the occasion in question. tended for the ferryboat, while she was trying to enter her slip, her engine having previously been stopped and· reversed, she was thrown by the eddy against the end of the division rack rebounded, and was carried by the tide, stern up river, against the tow belShe fore she could recover control sufficiently to keep out of the was without fault; and if the tug had gone with the tow unnecessarily near the entrance of the slip, and was violating the state which requires steam vessels to be navigated as near as possible in the center of the river, and by reason of her improper proximity to the slip brought her tow in the way of the ferryboat, she was properly held to be solely in fault for the collision. The learned district judge before whom the witnesses for both parties were examined delivered a careful opinion. It appears from it that he believed the witnesses who testified, in substance, that the when she struck the tow, was not backing to get a new l!tartfor her slip, was about halfway out of the slip,-that is, her how was about 20 feet from the end of rack that the tug, with the tow following her, was on a course so near the ends of the piers to be only about 110 feet outside of the end of pier 56; and he disbelieved the testimony of the witnesses for the tug to the effect that the tug and tow were 300 feet away from the ends of the main piers, and that the ferryboat was backing, to make a new start to re-enter her slip, when she struck the tow. According to the well-settled rule governing appeals in admiralty, we ought not to disturb these findings, unless they are so inconsistent with evidence to the contrary, irrespective of facts depending wholly on the credibility of witnesses, as to satisfy us that they are incorrect. The counsel for the appellant has made a very ingenious and entirely
to b.r1Dg. case, ,within ,operQ."j;ion of this !'We.: that it is ;tha,t, when the ferryl>oat bow of make herslip,she crossed at a, of, at least 300 feet away; that the. length of the tug, (90 feet,) the of the hawser, (at least 180 feet,) and the point of collislO:q :on tile bow of the barge (15 feet aft of her stem) make the total from the stem of the tug to the point of contact Otll the baI1geat least 285. feet; and. that at the rate qf, speed being the vessels, respectively,,it is impossible that the ferryboat could have gone only 20 feet beyond the line of the tug's course, a.nd upon a reb()und have hit the tow. He that upon any such theory, the tug would have struck the or the latter might have hit the tug, but she could not have hit the barge, which must have been nearly 600 feet behind the line of the intersecting courses when the ferryboat passed in front of the tug. lIe insists, on the other hand, and we a.gree to the proposition, that if the tug was 300 feet the ends of the pier,. as her witnesses testify, their theory of the collision is a probable one. The trial jud2e did not asslUJle .that the estimates given by the . witnesses, whose testimony he accepted a.s true, were accurate either as to the distance of the tug from the ends of the piers, or the distance the ferryboat reboulld.ed; but he &coopted them as approximatelycol'l'ect, ma.king· the observation, in his opinion, that no great weight can be attached to estinJ.a,tes of distances in feet when no special. attention was given to the subject. The controlling facts which he deemec) to Qe established were that the ferryboat wall not backing ,in order to make a new start for her slip when she struck the tow, ,and that there wa.s.such a brief interval after she rebounded and before·.sh.e struck the tow that she could not practicably .be. pqt' ahead. Mathematical calculations seldom form a solid bash! for judgment in collision cases. The factors which enter into them are generally 1ijlcertain quantities, susceptible of so much elasticity that ,the resultant is apt to be fallacjous. In the present case the only factor which is reliable is that of the distance from the stem of the tug to the place of the blow on the tow. Suppose the ferryboat the tug 300 feet in front of the tug's bow, does that mean that her stem, her· stern, or her midship was 300 feet away while on the line of the intersecting. course? As the ferryboat was 170 .feet long, her stern lll,ay have passed the bow of the tug only 130 feet away. Were the vessels on courses at right angles, or on converging courses? Was the tug going at a speed of three or five 1lliles an hour? Was the. ferryboat going fast, ,or quite slow, as she wal;J nearing her slip? With how 'Dluch force did the tide operate "on her stern; when she rebounded? Different answers may be ,!givf;ln, consonant with the1;estimony,. to all these questions. If she , was 200, feet away when her midship was opppsjte the bow of the ,tug; if by her. rebound and. the force of the tide she was carried . back, and her, stem .th,roWjP up the if her headway WaB .. slip; and if the tug was of .5:Qliles ;collision could have hapgoing at . pene4, sUYli!tantially as the trialjupge found it did. We have not
THE STEPHEN BENNETT.
overlooked. the somewhat significant omission of the ferryboat to Nevertheless, the trial judge, who saw the witnesses, and had an opportunity to judge of their intelligence and candor, which is denied to us, believed those whose version he substantially adopted, and disbelieved those who located the tug 300 feet away from the ends of the pier at the time of the collision. We have no reason to suppose that he overlooked the considerations that have been addressed to us, or failed to weigh them, and we are not convinced that his jndgment npon the merits is not a safer one than any we can form upon the record. The decree is affirmed, with costs.
call her engineer, or wve any evidence from her engine room.
THE STEPHEN BENNErT. THE ELIZABETH T. COTTINGHAM. SMITH et aL v. THE STEPHEN BENNETT. BUCH et aL v. THE ELIZABETH T. COTTINGHAM. (Circuit Court of Appeals, Second Circuit. February 7, l893.) Two schooners were beating up the coast, the B. following In closeprox. lmity to the C., and gaining slightly on her. The C. went about, and immediately afterwards the B. attempted to do the same, but misstayed, and, gathering sternway, got under the bow of the C., and W88 struck. by her. The B.had mlsstayed once before that morning. Held, that the B., knowing her liability to mlsstay, W8B In fault In following the C. so closely as to render it necessary for her to tack when the C. did. 42 Fed. Rep. 336, aflirmed. 2. SAME. The C. was not at fault in dropping her peak after she discovered the danger, for the action, if improper, W88 In extremis.
1. COLLISION-OVERTAKING VESSEL-MISSING STAYS.
Appeal from the District Court of the United States for the Eastern DiStrict of New York. In Admiralty. Libel. by John Smith and others against the schooner Stephen Bennett for collision. Joseph L. Buch and others filed a cross libel against the schooner Elizabeth T. Cotting. ham. The cross libel was dismissed, and decree was given for libel· ants. 42 Fed. Rep. 336. Respondents appeal Aftirmed. W. W. Goo'drich, for appellants. Frank D. Sturges, for appellee. Before WALLAOE, LAOOMBE, and SHlPMAN, Circuit Judges. PEB OURIAM. About noon of December 6, 1888, the schooners Stephen Bennett and Elizabeth T. Cottingham were in collision off the Jersey coast. The weather was clear, with a strong breeze from N. N. W. Each schooner was heading about west by nortll, elosehauled on the starboard tack, the Oottingham leading the BeDnett. A.t a distance of from one to two miles from the beach. W