THE B. C. TERRY.

711

of which was done. Even when both colored lights would first come into view the bark would still be nine points off the wind; and, considering the ease with wliich the pilot-boat is handled, there would be no difficulty after that in her keeping away. She was bound to avoid the dangerous maneuver of crossing the bark's bows when she was so near, until the bark's supposed intention should be made reasonably certain by showing both her,colored lights. Had the. pilot-boat observed this caution, no collision would have occurred. When she starboarded, the bark, as I find l was not within two or three points of her supposed position. She wanted no other pilot; she neither signaled nor rounded to. The collision having been caused by the mistake and unwarranted inference of the pilot-boat, and without any legal fault of the bark, the by the pilot-boat alone. Decrees must be entered loss must accordingly; but, under the circumstances, without costs.

THE B. C.

TERRY.

THE NOKOMIS.

CARROLL 'D. THE

B.

'0.

C. TERRY.

KENZELand others

THE NOKOlrllB.

(Diltrict OQurt. S. D. New YQrk. April 26, 1887.)

1.

2.

It is a. condition of the duty "to keep out oithe way," that the other vessel shall act intelligibly, and afford reasonable evidence of her intentions. While that is doubtful, the former should keep her course. The y,lLCht N. and the schooner T. were beating up the bay in a north-west wind, on the port tack. The N., being a little to leeward of the T., tried to como about upon the starboard tack, when she was sufficiently in advance to do so safely and pass across the T.'s bows, :under ordinary circumstances; but the wind being strong, and her foresail down, and her main-peak lowered, on coming about, she entirely lost headway, and swung around in all about 18 points, and collided with the T. on the leeward side. The master of the T., observing the continuous swing. inferred that the N. was intending to go to leeward, as similar vessels were in the habit of anchoring in that region, and he therefore starboarded to aid in av:oiding the N. Held, that ·the N. was alone in fault, the collision being occasioned by the. extraordinary behavior of the N. in coming about, andthe persistence of N. in endeavoring to cross the T.'s bows; and that the master of the T. did what was best under the circumstances.
HEADWAy-ExTR..-\ORDINARY SWINGING ABOUT.'

VESSELS-KEEPING OUT OF T.B;E WAY.

In Admiralty. On the afternoon of May 5, 1886, the schooner yacht Nokomis, 90 feet long, and of 51 tons burden, and the three-masted schooner B. C. Terry, Nokomis bound for loaded with timber, were coming in from Stapleton, ·near the north end of Staten island; the Terry, for Hoboken.

712

FEDERAL REPORTER.

As they passed the Narrmvs, they met a violent squall. Both shortened sail. After the squall abated, the wind remained strong: from the northwest, and the vessels continued under short sail, as. before, heading about N. N.E., on their port tacks·. The Nokomis, ha-ring her foresail down and her main-peak lowered, ran a little more off the wind than the Terry, and passed across the Terry's. bows. When she arrived nearly up to "Owl's Head," a little be.low buoy 18, and being only half to two-thirds the.distanceiwrossfromSfaten island to the Long island shore, the Nokomis ;tacked, for the purpose of making her station at Stapleton, being then about two points on the Terry's starboard bow, and distant from her somewhere from a quarter toa half mile. She did not miss 8tays, but came about slowly; and, on getting into the wind, completely lost her headwaYib1U,byhauling her head-sheets to windward, .she gradually swung round to the southward, a11the time drifting to leeward. Befo,re coming up to her course, which should have been W. by S., or ,:V. S. W., she had fallen: off to S. or S. S. W., and the bluff of her starboard bow struck the Terry abreast Of her mizzen rigging, on the starboard side, doing both some damage, for which the above cross-libels were filed. Just before the collision the THry luffed frqm three to four points, so that she headed at the time of collision N. N. W. Olin, RiveB & Montgomery, for .N9komis. Shipman, Barlow, Larocque &: Choate, for the B. C. Terry. BROWN, J. While there are wide discrepancies,in many of the details in regard to this collision, "it is clear that the general cause of the . collision was the fact that the Nokomis, in coming about, lost her headwaYi so that, in the strong breeze that prevailed, she drifted much to leeward, and, before gathering sufficient headway to come up to her expected swung ofi'.frornisix to eight points to the southward, changing her. heading altogether from sixteen to eighteen ppints from iher previous course of about N. 'N. E. This behavior of the Nokomis must be assu'¢e(i. to have been as unexpected to both, vessels as it was remarkable; The distance of the two vessels apart when the Nokomis tacked was estimated by her own 'witnesses at from half to three-quarters of a mile i according to the Terry's witnesses, about a quarter of a mile. Assuming that the Nokomis was rnnning under propersails, so as to be managed with ordinary facility ineo1Ding about, the distance of a quarter of a mile only, would, I think, 'be a sufficient and safe distance for tacking, when she was but two points off the Terry's starboard bow. But the behavior of the Nokomis was so unusual as to baffle previous calculation. On coming about, had she kept her headway, and got on her proper course upon her starboard tack, and not exceeded any ordinary margin for falling oft', she would have passed ahead of the Terry without difficulty. The Terry, on observing her tacking, had no reason to suppose ahe would not pursue the customary course. Had she missed . stays, and remained in the wind unmanageable, the Terry would have had notice in time sufficient to have put her upon her guard; and she would have been bound either to keep off,or to luff so as to avoid the

THE B. C. TEBRY.

713

Nokomis. But the Nokomis did not miss stays; and, in swinging round into the wind, she did not exhibit to the Terry any indications of inability to pnrsue whatever conrseshe desired. The Terry did not know where the Nokomis was bound. Vessels were accustomed to anchor in that Vicinity. Her main-peak being down, as well as her foresail, the yacht's intentions were not known to the Terry; and could not be surmised; and, as she continued to swing around, paying off more and more from her proper :course, if merely tacking, the Terry was led to aupposethat she was d:esigning to go to leeward of her. 'The master of the Nokomis insists that the Terry was a quarter of a mile distant when he had got around with his head-sails drawing on''the starboard tack, and that the Terry then kept away a coupleofpoihts more to leeward.' The officers of the Terry contradict the latter statement, and their testimony on this point, according ordimtry ·rulein adndralty, is controlling. The Tel'rydid not keep off to kept her conrse until her lu'lr, when her offieers saw that the Nokomis was riot likely to clear them to leeward. The wit-: nesses onboal'd the Nokomis, which was all the time s\1\,inging till neat' the moment of collision, were in no situation to jUdge correctly of any changes in of the Terry.· The extraordinary behavior of the Nokomis is not elCplained so as to free herfrbm blame. The burden of doing this clearly rests upon her. It is unnecessary forme to find the specific causes,......:whether inadequate, or 'sails;bi' whether there was mistake in giving or in obeying orders. It is slifficient, so far as the question of fault goes, that the course of the Nokomis was so wholly unexpected that tM Tetry was in no fault fo;r not anticipating it; nor for being in doubt whether the intention of the Nokomis was to tack for Staten. island,or to go to leeward. According to ordinltry maneuvers in navigation, the Nokomis had time and space to do either. Even after she had payed off so much to the southward, and when the·Terry was seen to be luffing, 200 to 300 yards distant, there would have been no difficulty, in my judgment, in the Nokomis going to leeward, had her master concluded to adopt that course; and that was, I think, obligatory upon him after he had swung round so much. Instead of that, he kept his main-sheet hauled in, and his helm to port, still aiming to cross ahead of the Terry until very shortly before the collision. Although his own estimate was that the Terry began to luff when she was a quarter ofamiledistant, it was probably only from one-half to one-third of that distance. But this was ample space for the Nokomis to go to leeward, had she starboarded her helm, and let .her main-sheet· run. As respects the Terry I the situation was one in which her master could not tell which way to turn. It was his duty, doubtless, to avoid ion with the Nokomis if he could. But it is acondition of the duty to keep out .of the way that the other vessel shall act intelligibly, and afford reasonable evidence of her intentions. Until that was done; it was 'the duty of the Terry to keep her course. At first the Terry was not requiredto do anything, because there was plenty of rOom for the Noko-

714

lfJ;)DERAl-

mis to tack in the usual way. Instead of tacking in the usual manner, the master of the Nokomis says that the yacht fell off so l"!-s to have the wind abeam,and that she w.as.going astern at that time; that the Terry was then about ahead, and was heading fore and aft from him. Since, in that situation, the Nokomis was also still swinging to the southward, as well as drifting to the ea.stwardand southward, the Terry could not then safely keep off, since. that would apparently be running right into the Nokomis; and, as, the Nokomis was also still swinging, the natural inference Was that she was intending to go to leeward. To luff was therefore the Terry's best maneuver to aid the ·yacht's apparent design. The master of the Terry says that, when she. was two or three hundred yards off, he. went rail, and saw the Nokomis about one point on his starboard· bow, heading for his midships. That was probably about the same time above referred toby the master of the Nokomis., As the Terry Qhanged about three or four points, the distance at which she began to must have been from 400 to 600 feet. One of the .officers of the Nokomis, it is said, waved his hand.. to the Terry to keep off to wiQ.dward; but several of the witnesses of the Nokomissay.that this was when the ve.esels were within one or two hundred feet of each other. Some esttmate the distance. less. On either estiIll;aW, it was too lateto'be of any use. The Terry payed off slowly, and that maneuver, unless made much earlier, would apparently have reB\Jlted .in a worse the TerrY"as I have said, naturally in,ferred that the Nokowis. was going to leeward. Under the extraordinarycircumstances of the case, I do not seEl that there is anything that the Terl1Y hap at the time reasonable grounds for doing that she did notdQl iUl,d in the situation of the two vessels, when the Nokomiswas found.to be gaininghelldway so slowly; and to have swung so much to the southward, and tphave drifted to leeward .of the Terry, I think it. was, ,the clear: duty of the master to have gone; to leeward, and no.t to have persevered in his ,attempt to cross the Terry's bows so long as ,he did; and that the fault of the coHision was therefore wholly that of the Nokowis. , A decree may be entered acoordingly·

",,',

MAltGARET PUTRIDGE

J. J.

*

SANFORD.

THE MARGARET

;,; ','

1;

OO'urt,

New York. MaY.l. 1886.)

The interl'lsts of navigatIon !reqUIre that the entrances to slips, or to narrow that 'are j)uQlicthorougllfares, be kept free fromobstructioDS that !hake plLliilage danger6us. Vessels that,moor S6 as to allow parts of their hulls to pl'oje,ot partly across suol!. passages".so as to make eJ:l,trance difficult. 'jP'ill be h.eld with con,tdputory negligence in case of collision.
· to circuit court: see' 37 Fed. 148.' .

CANALS-'- E'Nrn!\.NOJ1l OnSTRUOTED-"- PROJECTING BOATB..c.;.. CONTI\IBUlTOKy:FAULT. ' ; j ' . . . .