and the need of protecting lines to steady her movements. He gave some orders in regard to his boat. He was not ousted from all control of her; and it does not appear that the stevedore's men intended to take sole control. Had he insisted on the use of lines to steady the boat, and the other men had refused, the fault must have been charged wholly upon the steamer's men. As he did not do so, I think the neglect must be considered as the neglect of both alike, and that he should recover, therefore, but half of his damages. An interlocutory decree may be entered accordingly, with costs, with an order of reference to compute the amount, if not agreed upon.

THE FRISIA AND THE JOHN N. PARKER.

(District Court, E. D. New York. February 16, 1885.)

COLLISION-STEAMERS CROSSING-RIGHT OF WAY-SPEED.

A collision occurred in New York harbor in the afternoon of a clear day, between the steam-ship F., bound to sea on a S. S. W. course, and a bark which was in tow of the tug P., and proceeding from Red Hook towards Bedloe's island, on a N. N. W. course. Held that, as the vessels were on crossing courses, and the tug had the steamer on her starboard hand, the tug was charged with the duty of avoiding the steamer, and that the collision was caused by the fault of the tug in attempting to cross the steamer's bows; that on all the evidence there was nothing to charge the steamer with knowledge that the tug was intending to cross her bows until it was too late, and that no fault could be ascribed to the steamer; that it was not a fault for the steamer to proceed at the rate of 15 miles an hour on a clear day, when the harbor was not crowded.

In Admiralty.

Jas. K. Hill, Wing & Shoudy, for libelants.

Butler, Stillman & Hubbard, for the Frisia.

Benedict, Taft & Benedict, for the John N. Parker.

BENEDICT, J. This action is brought against the steam-ship Frisia, and the tug-boat John N. Parker, to recover the sum of $40,000 damages for the sinking of the bark James L. Harway, in a collision that occurred on the seventeenth day of June, 1882, in the harbor of New York. At the time of collision the bark was being taken by the tug upon a hawser from Red Hook to a place of anchorage off Bedloe's island. The tide was ebb, and the course of the tug and bark, after passing the buoy below Governor's island, was N. N. W. At the same time the steam-ship Frisia was bound to sea from her pier at Hoboken, and was proceeding down along the west shore of the channel upon a S. S. W. course. The steam-ship and the tug were therefore approaching each other upon crossing courses, and the tug having the steam-ship on her starboard side, as soon as danger of collision arose, became charged with the duty of avoiding the steam-ship. It was a

Reported by R. D. & Wyllys Benedict, of the New York bar.

clear day. The vessels were in plain sight of each other, and neither tug nor steamer was embarrassed by the movements or position of any other vessel. The harbor was substantially clear, and there was abundant room for the tug to pass ahead or astern of the steam-ship, as she might be advised. Judging that she could cross the steamer's course ahead of her, the tug made no change of course, but quickened her speed as the steam-ship approached nearer. The tug herself succeeded in passing the steamer's bows, but the bark was struck by the steam-ship.

ure.

I have no hesitation in finding this collision to have been caused by fault of the tug in attempting to cross the steamer's bows. The bay being clear, and the tide ebb, there would have been no difficulty whatever in the tug's bearing up head to the tide and allowing the steam-ship to pass ahead of her. Instead of adopting this safe course, the tug concluded to attempt to cross the steamer's bows, when, as the result showed, it was impossible for her to do so. The attempt was, obviously, hazardous, and wholly unnecessary. Having attempted a hazardous maneuver when a safe course was open to her, and having failed, she must pay the damages resulting from her failWhether the steam-ship was not also in fault is the next question. Notwithstanding the obligations resting upon the tug to avoid the steamer, it was the duty of the steamer, as soon as it become apparent to her that the tug had selected a course calculated to bring the vessels in contact, to do all in her power to prevent collision. If the account given by those on board the tug could be taken to be true, doubtless the steamer would be condemned; for, according to their account, the steamer was given timely notice, by whistles from the tug, that the tug intended to cross ahead of the steamer. But, in fact, the tug's whistles were not blown until the steamer was close upon her. One witness from another vessel, called in behalf of the tug, shows that the tug, although moving at a speed of six knots, ran only about her length between the time of the first whistle and the last whistle from the tug, and the last whistle was at the instant of collision. The testimony of other witnesses also makes plain the fact that all the whistles from the tug were blown when the steamer was so close at hand that stopping and reversing her engine was the only thing then to be done by the steamer towards avoiding a collision.

The reason why the tug did not sooner inform the steamer of her intention to cross the steamer's bows is manifest. The master of the tug, as he frankly said upon the stand, believed, up to the very blow, that he could take the bark across the steamer's bows in safety, without calling on the steamer to do anything. Consequently, he did nothing to warn the steamer of his intention to insist upon crossing her bows until he discovered that he was in danger. Then, indeed, he blew to the steamer, and quickened his speed, and then the steamer stopped and reversed, but it was too late. The steamer cannot, therefore, be held responsible for the collision, unless it can be found that

in the absence of signals from the tug to that effect the steamer was, nevertheless, chargeable with knowledge of the tug's intention to attempt to cross her bows. If, notwithstanding the omission of the tug to give timely notice by her whistle, the circumstances were such as to inform the steamer in time that the tug was intending to cross her bows, such circumstances cast upon the steamer the duty, by a timely change of her course by slacking of her speed, to avoid the danger attending the course selected by the tug. I find in the circumstances proved nothing calculated to convey such information to the steamer. The steamer was on a course down the bay, on the western side of the channel. The tug came into the channel on the east side, below the buoy at Governor's island. Her destination was unknown to the steamer. The tide was ebb; the tug headed up against the tide about N. N. W. She had a bark in tow, upon a hawser 60 fathoms long. She could, at any moment, bring herself and her tow quickly head to the tide. The steamer's approach was plainly to be seen, and the tug gave no signal in regard to her course. I find nothing in these circumstances that would inform the steamer of the tug's intention to cross her bows. That intention was not disclosed until manifested by the near approach of the tug to the steamer's course without change. Then the steam-ship stopped and reversed, and in so doing she discharged all her duty, for she could then do nothing more to avoid collision.

It should also be remarked that the steamer furnishes testimony from her pilot and her chief officer that by her whistle she gave to the tug timely notice that it was the steamer's intention to keep her course down the west side of the channel. The witnesses for the bark

and tug say they heard no such signal. Their failure to observe this signal may be attributed to the fact that their attention was bestowed upon an Inman steamer which passed up the bay from below, while the Frisia was approaching from above, and crossed the tug's bows before the tug reached the course of the Frisia. The master of the tug says this Inman steamer passed his bows after he had blown to the Frisia. But in this he is mistaken. The Inman steamer passed him before that, and her proximity may have been the reason why the Frisia's signals were not observed. The statements of those on the tug that no signals were given by the Frisia have therefore failed. to satisfy me that the pilot and chief officer of the Frisia testify untruly in this particular. Their testimony, if believed, leaves no room to impute fault to the Frisia.

It has been urged against the Frisia as a fault that she was going at 15 miles per hour. If that was her speed it was no fault. The day was clear. The harbor was not crowded. There was abundant room, and at 15 miles an hour the Frisia could easily have avoided the bark, if she had been duly informed of the tug's intention to attempt to cross the steamer's bows. No lookout is also charged upon the steamer. But the tug was seen, and closely watched, by the pilot v.24F,no.8-32

and the chief officer of the steamer. No neglect of the lookout, therefore, 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 decree entered against the tug for the amount of the damages resulting to the libelant from the collision between the bark and the steamer.

WEST VIRGINIA CENTRAL & P. Ry. Co. v. THE ISLE OF PINES and another.

WILLIAMS and others v. THE ISLE OF PINES.

(District Court, S. D. New York. June 30, 1885.)

COLLISION-RIVER NAVIGATION-TACKING-NOT GIVING WAY.

The schooner I. 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 600 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 up her engines to go ahead strong; in order to get ahead of the schooner. Held, that both were in fault; the tug, for attempting to get ahead in the narrow space available; the schooner, for not heeding the tug's evident intention, and not either porting or starboarding, as she might easily have done, and thus have avoided the

collision

In Admiralty.

Carpenter & Mosher, for the West Virginia, etc., Ry. Co.
Hyland & Zabriskie, for the Jas. McMahon.

Butler, Stillman & 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 tow 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. N. 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 15 feet only, and, as her witnesses state, ran within about 200 or 250 feet of the 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 contact with the starboard boat and caused her to sink.

Assuming, as all state, that the tug was in the middle of the river, 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 the 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 witnesses 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 near 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, but 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 been evident, to any proper 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