THE J. S. NEIL.
(O$1'cuit Oourt, E. D. Mi88ouri. April.28,18Si.)
1. COLLlBION-RULE IN ADMIRALTY.
Where there is a collision b"etween two vessels, and one of them is sunk and its cargo lost, and the fault is all on one side, the party owning the vessel in fault must bear all the loss. If both are in fault, the loss and costs of suit are . equally divided between the owners of the two vessels. 2. How VESSELS SHOULD STEER IN PASSING EAOH OTHER. Where a steam-boat, in ascending a stream, has to pass 8. descen'ding boat, it should keep within the larhoard half of the naVigable channel, and the :descend. ing boat should keep within the other half.
Appeal from the District Court of the Eastern District of Missouri. This is an action in 'rem. The Chester Harris MantifMtuting Company, or corporation, filed its libel in the-district conrtagainBt the J. S. Neil, a tug-boat owned by the Anchor Transportation Com· pany, of Middleport, Ohio, and alleged that on the thirtietif'day of April, 1880, it was the owner of a barge called the Collier No; 1,a.nd a tug-boat called the Hickory; that the barge ;was being towed up the Mississippi on said day by the Hickory, and was, without any-fault on the part of the libellant, or its employes or boats, run into and sunk by the J. S. Neil; and that the cargo of the barge was a total loss; and that the collision occurred through the negligence and unskilfulness of the crew of the J. S. Neil. The damages wElre hiid in the sum of $3,400. The respondent and claimant, the Anchor Transportation Company, set up in its answer that the accident occurred through the negligence of the crew of the Hickory. There was an award in favor of libellant in the sum of $2,355 and costs of suit, from which the respondent and claimant took an appea,l to the circuit court. The other facts are sufficiently set forth in the opinion. Broadhead, Stayback It Haensler, for libellant. ' Given, Campbell, and R. H. Kern, for libellee. MCCRARY, C. J. This is a case of collision, and the question is as to which party was in 'fault. It is a question mainly of fact, and:E have neither the time nor the disposition to discuss at length the evidence. The steamer Hickory was, at the time of collision, proceeding up the Mississippi river, while the J. S. Neil was descending. They collided in the channel nearly opposite the foot of Goose island, about 30 miles above Cairo. It is conceded that, in due time, the pilotof the Hickory gave the usual signal to the Neil to keep to the larboard, whic'h was answered by a signal denoting assent. It was, therefore, the
duty of the pilot of the Neil to keep as near as practicable to the island, that being to his larboard. :Thishe did not do, for the collision occurred at .least 100 yards, and probably much more than . that, from the shore of the island. It is pretty evideI;lt, I think, from the testiUlony; that the pilot of the Neil, by backing his "'essel upon a straight rudder, caased her bow to incline towards the center of the channel ahd thuB to come into collision with the other vessel. But, whatever the reason may be, the fact is clear that the Neil was not as near to the island as she should have heen, and was therefore in fault.' Was the Hickory also in fault? As to the width of the navigable channel at the place of collision,and as to the' distance from the shore of the island to the place of; collision, there is wuch uncert8t41ty in the evidence. It is clear that the main' near the island, but ;it ,ill also clear that there was at tiqie good navigable water for a distance of nearly half a mile. The 'Hickory was bound to give ,t4e Neil plenty of room. to pass Mong shore of the and to bear over towards'the main shore 'for t.hat purpose.. Ithinkit fair to say that,if the Neil had fuHyone-haLf of the 9rdiJ;lary channel in which to paSEI down she was bound to keep within it.. If she was seen further out in time for the pilot of the ory to have avoided this collision by bearing still further over the main shore, then it was hi!? duty to halle ,dope so. But if the so directed his vessel that he believed he was pilot of. giving the Neil ;p1enty of room, and if but for the sudden tl,lrning of the bow of the latter across the channel she wquld have had" plenty wholly with the .Neil, and this of room, then I think the fault latter seems to have been the fact. By some failure to manage the Neil successfully, while bac14ng .her for the purpose of brip.ging her near the island, her bow was thrown suddenly outward, and being probably caught by t,he current she was placed in a I>0sition almost at right angles with the channel, and this at a moment too late ,for the Hickory to change her course afld avoid the accident. The pilot elf theJIickory had, with good reafilon, calculated that, tlle, Nw ofJh!=l.Neil would be kept. down stream, !j.nd itseeffis that, if tl;lis reasonable exp.ectationhad been realized, there heen .rw collision. . In conclusion I give weight, tinding of the ,of, Ilrbitrators, compoeed of exp.erts by the partio& t4emsolves,who, by agreemolf,t.of pa.rties, he[l,l"d thetesUmany and ttheir award ip. the ,cOjl;lit Their fiuding
ought, at least, to be as persuasive as would have been a similar finding on the facts by the district court, or by a jury, iia juryllad been allowed. Decree of the district court affirmed.
MOCRARY, C. J. Being in doubt upon the first hearing upon the question whether the collision and injury was the result of mutual fault, I granted the petition for rehearing so far as that question was concerned, and, having reconsidered it, I am now prepared to state my conclusions. That the Neil was in fault I have no doubt. If the Hickory was also-in fault, it was because she. did, .not bear as flj.r to her larboard as was required under the circumstances. I adhere' to the rule expressed on the first hearing, that if the Neil had one-half the cha,nnelleft to her occupation that was enough. " But in applying this rule in this case we must consider the condition of the channel as to width and depth at the time of the collision. 'It is clear that the navigable channel was at that time much wider and deeper than at an ordinary stage of water. The evidence shows that 'the width of the river from the island to the Missoq.ri Elhore was half a mile. While it appears that the ordinary channel was Qnlyabout 400 yards wide, and ran near the shore of the island, it also appears that at the time of the collision the water was high, and the wholehaJ.f milecertainly the greater part of it-was good navigation. The question how much room the Neil was entitled to depends somewhat upon the width of the navigable channel at that time. As this was. not muclJ., if any, less than half a mile, it seems that the Hickory should have been'more than 150 yards from the island shore when the accident occurred. If the Neil was entitled to one-half of the width of the channel as it existed on that day, that would have given her at least 400 yards. Some consideration must also be given to the fact that the Neil was proceeding down stream with a heavy and unwieldy tow, and was, in consequence, somewhat difficult of management, as well as to 'the further fact that the Hickory had ample time in which to have borne over towards the Missouri shore still further, so as' to incur no risk of collision. It must be observed, too, that, even upon the theory that the Neil w/;,s entitled to one-half of the ordinary channel, (400 yards,) it is doubtful whether the Hickory was in her proper place. The weight of evidence locates the collision at a point -150 yards from the island
shore. Assuming that the channel is ordinarily 400 yards wide, and runs dJse to the island, this would give the Hickory 250 yards and the Ntlil only 150 yards. My conclusion is that the Neil was in fault for reasons heretofore stated, and that the Hickory was in fault for not bearing further to her larboard and leaving a wider space between her and the island. ' There will, therefore, be a decree dividing the damages and costs. So ordered.
.BAYSEN and others v. THE COLUMBIA and'THE EDGAR BAXTER. CAHILL and others v. THE COLUMBIA. THEl NAT. FREIGHT AND LIGHTERAGE Co. v. THE COLtiM1rfA.
09urt, E. D. New Y()1'k.
,June 14, 1881.)
IN EAST' RIVER-TUG AND ]'ERRy-BOAT-UNAVOIDABLllf AOCIDENTCOLLISION AT PIER' ' '
Where collisions occurred in the East river, at New York, in rapid sUccession, between a alid a. ferry-boat entering her slip, a :bark in tow of the tug and ,the fer11Y-boat, land the ferry-boat and a lying at tlie end of the pier, ,and actions for damages were, brought by the owners of the bark against tug and the ferry-boat, and by the owners of the tug and of the ligh1er against the ferry-boat, held, that the tug in fault for the first two collisions, having attempted to cross the bows of the ferry-boatrwhell'she might have gone safely under her stern; and the collision of the ferry- bOat with the being unavoidable by her as the result of the other collisions, tho libel oithe lighter against'the ferry-boat must be dismissed:
'. Hill, Wing cf; Showdy, for Baysen and otbers. B. D. Silliman and E. L. O/l1en, for' tbe Columbia and tbe Baxter. E. L. for Cahill and others. . B. D. Silliman, for tbe Columbia. G. E. Growfor the National Freigbt and Lighterage Company. BENEDICT, D. J. These three actions, wbich arose out of a collision tbat occurred at the South ferry, on the fourteenth day of Octoqer,l879, have been tried together. The ferry-boat Columbia, one of the ferry-boats of the Union Ferry Company, plying on the South ferry between New York and Brooklyn, was, at the time in question, on her regular trip from Brooklyn to New York in the daytime, the tide being ebl? and the clear. The tug Edgar Baxter, having the bark Laura in tow upon a hawser, was approaching the East river, from the North river, on a course crossing that of the