Cleary

¶1Collision <§=s>95(2)—Tugs with Tows in East River—Failure to Keep Near Middle of Channel.

¶2A transfer tug, with two car floats alongside, held solely in fault for a collision at night in East River between one of her tows and a barge in tow alongside of another tug, which was maneuvering to pass the end of a pier on the Manhattan side against the flood tide, and which stopped and backed on the approach of the Transfer to keep out of the way, on the ground that the Transfer was coming down too close to the piers, instead of keeping near the middle of the river, as required by the regulations; the collision having occurred not more than 300 feet from the pier end.

¶3[Ed. Note.—For other eases, see Collision, Cent. Dig. §§ 200-202; Dec. Dig. <g=^95(2).]

¶4Coxe, Circuit Judge, dissenting.

¶5Appeal from the District Court of the United States for the Eastern District of New York.

¶6©^oFor other cases see same topic & KEY-NUMBER In all Key-Numbered Digests & Indexes

¶7*108Suit in admiralty for collision by Clarence E. Bleakley, owner of the barge U. H. No. 66, against the steam tug William E. Cleary, the Cornell Steamboat Company, claimant, and the steam tug Transfer No. 10, the New York, New Haven & Hartford Railroad Company, claimant, impleaded. Decree for libelant against the Cleary, and her claimant appeals.

¶8Reversed, and decree entered against the Transfer No. 10.

¶9This is an appeal from a decree in admiralty of the District Court entered on August 2, 1915, after a hearing upon a libel in rem. The occasion of the suit was injuries to the barge U. H. No. 66, loaded with a cargo of stone and injured by contact with a railroad float in tow of Transfer No. 10 at 9 p. m. on January 30, 1914. The owner of the barge U. H. No. 66 filed a libel in rem against the steam tug William E. Cleary, which had her in tow at the time of the collision. The Cleary’s owners appeared and answered, denying fault, and petitioned in the Transfer No. 10, whose floats came in contact with the U. H. No. 66. The New York, New Haven & Hartford Railway Company claimed the Transfer No. 10, and answered the petition of the Cleary’s owners, and also answered the libel. The decree dismissed the petition against the Transfer No. 10, with costs, and awarded damages against the William E. Cleary for $1,436.40, with costs and interest.

¶10The facts are as follows: The U. H. No. 66 on the 30th day of January, 1914, was taken in tow by the tug Terry, belonging to the Cornell Steamship Company, at the foot of Eifty-Eifth street in the North River, bound for the south side of Pier 42 in the East River, where her cargo was to be discharged. She was taken into a general tow at about 4:30 p. m. that day; the weather being clear, the wind light, and the tide flood. The Cleary was a helper tug' engaged with the tow in picking out separate barges and taking them to their destination. After the tow had rounded the Battery and had gone up the East River to about Corlear’s Hook, the Terry rounded to, facing the flood tide and Jetting her tow tail off up the river, opposite Cherry street. She waited in this position some time until the Cleary, which had been towing two other barges to Wallabout Bay, came back and took upon her starboard hand the barge ü. H. No. 66. This was well above Corlear street. The Cleary proceeded along the port side of the tow, keeping inshore so as to get the effect of an eddy which makes at that point upon the flood tide close in towards Corlear’s Hook Park. Pier 42 is just south of the Jackson Square pier, and in order to reach it the Cleary had to starboard her wheel somewhat so as to clear the end of the pier. In doing so she exposed the starboard bow of the barge a.t a substantial angle to the full force of the flood tide, which is close to the pier ends at that point. This caused the barge to swing off so much to port that the Cleary had to drop back and to try a second time to clear the pier ends by keeping further off, so that she would have to starboard only a little and not expose the bow at so great an angle to the tide. She had worked down until she was just about off the end of the Jackson Street pier and in a position almost to clear it.

¶11Meanwhile, the Transfer No. 10, with a car float on either hand, was coming down the river and had starboarded around Corlear’s Hook under the tail of the Terry’s tow, which had remained in place. She passed the tow on her starboard hand and eventually came in sight of the Cleary in a position which seemed to the Transfer’s captain to be hanging to the end of the Jackson Square pier. Shortly thereafter, the Transfer blew two blasts, and her captain says that she got the same in answer. The captain of the Cleary says that, at once upon hearing the blasts of the Transfer, he looked about and was afraid, if he ported, he would expose his stern to the Transfer, which was coming down too close for safety. Therefore he backed and blew an alarm, and he continued backing until the time of the accident. The Transfer for a time continued her course, but, seeing the lights on the Cleary change, and eventually getting her red light half a minute or less before the accident she starboarded and backed. Through the backing of the Cleary, probably coupled with the strength of the tide, the barge was swung strongly *109to port nearly across stream, and her port bow struck the starboard car float a little forward of amidships, causing the damage in Question.

¶12Kirlin, Woolsey & Hickox, of New York City (J. P. Kirlin, William H. McGrann, and Robert S. Erskine, all of New York City, of counsel), for appellant.

¶13C. M. Sheafe, Jr., of New York City, for appellee Transfer No. 10.

¶14Peter Alexander, of New York City, for appellee Bleakley.

¶15Before COXE and WARD, Circuit Judges, and LEARNED HAND, District Judge.