Cornwell v. Rogers

58 F. 927 | 2d Cir. | 1893

PER CURIAM.

This is an appeal from a decree of the district court in the southern district of New York in favor of the libelant, as owner of the canal boat Bartholomew Brewing Company, against the steam barge Phoenix, and dismissing the libel as against the steam tug Atlanta.

The canal boat was the outer of two boats on the port side of the Atlanta, which had another boat on her starboard side. The feet was bound from the Morris Canal basin, Jersey City, to the Atlantic basin, Brooklyn. There was a fog, which had lifted a little before they started, but soon shut down again, somewhat thick near the water. While thus proceeding on their -way, the fleet encountered the Phoenix, which was on her way from pier 1, North river, to Communipaw. The latter vessel came into collision with the libelant’s boat, striking her a little forward of midships, nearly at right angles.

The testimony is conflicting. It is, however, conceded that when the fog signals of the Atlanta were first heard on the Phoenix, the former was on the latter’s starboard hand. The duty of avoidance, therefore, was plainly on the latter. We are satisfied from the proof that the fog was so dense that neither vessel could see the other at a greater distance than 400 feet. Both vessels, after the fog shut down, proceeded slowly.

We agree with the district judge in holding that there “was no such clear case as required the Atlanta to disregard .the twenty-first rule,” which provides that steam vessels, when approaching another vessel, so as to involve risk of collision, shall slacken, and, if necessary, stop and reverse; and, as the evidence supports the conclusion that the Atlanta did reverse when she saw that the Phoenix kept coming towards her on a course involving risk of collision, she must be held free from fault. Were we further satisfied that the Phoenix also reyersed promptly as soon as she saw the Atlanta, we would be strongly inclined, disregarding any minor faults of navigation or errors perpetrated in the brief space after collision seemed unavoidable, to hold the catastrophe to be an accident without fault. But the testimony is in conflict upon the question' of fact whether or not the master of the Phoenix delayed reversing, and, as the district judge in this case saw the witnesses, we accept his conclusion, since there is not a clear preponderance of proof the other way.

Decree affirmed, with interest to libelant, and costs to the Atlanta against the Phoenix.