24 F. 498 -

498

FEDERAL REPORTER.

and the chief officer of the steamer. No neglect of the lookout, there. fore, contributed to cause the disaster. I find no ground, therefore, upon which to hold the Frisia responsible for the collision in question. The libel as against the Frisia must therefore be dismissed, with costs, and a· deoree entered against the tug for the amount of the damages resulting to the libelant from the oollision between the bark and the steamer.

WEST VIRGINIA CENTRAL

& P. Ry. Co. v. other.

THE ISLE OF PINES

and an-

WILLIAMS and others v.

THE ISLE OF PINES.

(District Oourt, 8. D. New York. June 30, 1885.)
CoLLISION-RIVER NAVIGATION-TACKING-NOT GIvmG WAY.

The schooner 1. of P., in beating up the East river off Gouverneur street. on her long tack passed close ahead of the tug McM. with a tow. and then, after running 60(\ or 800 feet, tacked and ran straight across the river, designing to go ahead of the tug again. but collided in doing so. The tug had backed strong. to let the schooner go ahead at first, and had then hooked np her engines to go in urder to get ahead of the 8chooner. Held. that both were in fault; the tug, for atlempting to get ahead in the natTOW space available; the schooner, for not heeding the tug's evident intention. and not either porting or as she might easily have done. and thus have avoided the collision

In Admiralty. Carpeater J; ""[osher, for the West Virginia, eto., Ry. Co. Hyland J; Zabriskie, for the Jas. McMahon. Butler, Stillman J; Hubbard, for the Isle of Pines. BROWN, J. Off Gouverneur street, where this collision took place, there were about 1,300 feet available breadth of the river from pier to pier. All the witnesses agree that the tug McMahon, with a tdw of two boats lashed on each side, was making her way directly up the river, at about the rate of four miles an hour, on a course E. tN. The schooner Isle of Pines, having the wind about E. S. E., and "sailing close-hauled on her starboard tack, about six points off the wind, was heading about N. E., and was going at the rate of about six miles an hour. She passed the bows of the tug and tow from starboard to port, clearing them by some] 5 feet only, and, as her witnesses state, ran within about 200 or 250 feet of ,he New York shore. The difference of their courses was but about three and a half points, and carried the schooner, before she tacked, as was estimated, some 500 or 600 feet ahead· of the tug. She then tacked; and upon her port tack, headed nearly directly across the river, perhaps half a point to the southward, and in crossing the bows of the tow came in can· tact with the starboard boat and caused her to sink.

WEST VIRGINIA CENTRAL &: P. RY. CO.

1).

TH:!J: ISLE OF PINES.

499

Assuming, as all state, that the tug was in the middle of the rher, and the schooner, including her jib-boom, being 160 feet long, there was not over 450 feet available space on the port side of the tow. Had tl18 schooner run out her full tack, on a north-east course, so as to make this distance abeam, she would have had to run about 800 feet after first passing the tug and tow. This is considerably in excess of the estimate of her own witnesses. The inference, therefore, is that the libelant's witnessos are probably correct in saying that she did not run out her full tack. The mate says that after her tack was completed, and she bore away upon her proper course on the port tack, she was about 500 or 600 feet from the tug. As she was going at the rate of five or six miles an hour, that distance would be accomplished in about one minute, or a little over, allowing for her slowing in coming about, and the tug, during the same time, would move through the water from 300 to 400 feet. This testimony fixes the position of the boats with more than usual accuracy. If it is to be relied on, it shows that the schooner, while she did not fully run out her tack as neal to the shore as she possibly might have gone, did not come much short of it; but having the full space available to her, she was, in my judgment, bound to take notice of the incumbered condition of the tug. and of the fact that she was not, at the time the schooner tacked, backing, bnt was moving ahead all she could, and, therefore, evidently designing to go ahead of the schooner. Had this been observed, as it ought to have been observed, at the time the schooner tacked, there would have been no difficulty in the schooner's following this obvious indication, and, under a continued port wheel, have swung round so as to go astern of the tug and tow. The space that was available to the schooner towards the New York shore was so small that it was dangerous to pass ahead of and so near to the tug upon her previous tack, and then go about and undertake to pass ahead of her again. The tug had backed strong to allow the schooner to pass her at her first crossing, and then had hooked up and gone ahead strong in order to pass ahead of the schooner before her return on her port tack. The maneuvers of each bound each to a careful observance of the other, and when the tug's purpose was evident, as it should have peen evident, to any propel' lookout on the schooner, the schooner should have governed herself accordingly, and passed astern, or else have luffed and made another short tack; either of which was, in my judgment, entirely available to her. 2. I think the tug, however, was also clearly in fault for hooking up and going ahead after the schooner had first passed to port, instead of keeping her course until the schooner should return upon her port tack. The more rapid speed of the schooner, and the short space available to her, rendered her speedy return ahead of the tug obvious to any competent pilot. It was the primary duty of the tug and tow to keep out of the way of the schooner, and let her have her proper course. There was no danger to the tug and tow either in

500

FEDERAL REPORTER.

continuing to back, or in going under a slow bell, as they had beg';ln, until the schooner again crossed on her short tack. Instead of domg this, the tug attempted, with, I think, obvious imprudence, to run ahead of the schooner, and she thus brought about the collision; but as the tug's purpose was sufficiently obvious to a proper lookout on the schooner, and the danger of collision being apparent, and as the schooner might, by either porting or starboarding, have avoided the collision, the damages must be divided, both being in fault.

MORTEN

v.

FIVE CANAL-BoATS.

(District Oourt, D. New Jer8ey. July 13,1885.)
1. 2.

COLLISION-NEGLIGENT NAVIGATION-BuRDEN OF PROOF.

In a suit to recover for damages caused by a collision from careless and negligent navigation, the burden of proof is on the libelant.
SAME-CANAL-BoATS SLoop-iMPROPER ANCRORAGE-]'AULT-EvIDENCE.

On examination of the evidence in this case, held, that the sloop was in fault in anchoring at the place where she did; that the evidence of negligence on the part of the canal-boats with which she collided was not sufficient to entitle her to recover; and that the libel SllOUld lJe dismissed.

Libel in rem. Hyland <£ Zabriskie, for libelant. Frank L. Hall, for respondent. NIXON, J. This suit is brought to recover damages arising from a collision between the fishing sloop Flash, of which the libelant is owner, and five canal-boats, the property of the Philadelphia & Reading Coal & Iron Company, of which corporation the claimants are receivers. It appears that on the sixth of December, 1884, the Flash was bound up the North river, and, being overtaken by a storm, anchored off a coal-pier at Jersey City about sundown; that about the time of casting her anchor she was notified by the employes on the pier that she would be in the way of the boats coming for coal and water; that, in order to get out of the way, leaving the anchor where it was first cast, not far from the river end of the coal-pier, they began to payout the cable. The wind was strong from the south-east, blowing the sloop into the slip between the coal-pier on the south and the dock of the New Jersey Central Railroad Company on the north, until she was floating within about 15 feet of the said dock, her cable stretching acrOS8 the slip 80 fathoms or more to the anchor. The slip was less than 400 feet in width, bounded on the northern side by the wharf, or dock, of the said railroad company. This was 700 Qr 800 feet in length, at the lower end of which, next to the river, the five canal-boats were moored,-fastened together, with their bows to-