49 F. 254 | 2d Cir. | 1892
This is an appeal from a decree of the circuit court, affirming a decree of the district court for the southern district of New York, dismissing the libel.
On May 22, 1890, about 11 a. m. the schooner Titus, loaded with sand, was proceeding through Hell Gale, between Ward’s island and the Long Island shore, bound for Newark, N. J. She was keeping towards the Ward’s Island shore, and her witnesses claim that she was hugging it closely,so as to avail of the slack-water, the tide being then Hood. She was heading about south-westerly, with her booms on the starboard side. There had been a little wind about E. N. E., but this died out. As she reached Negro point, which projects into the channel from the Ward’s Island shore, she suddenly took a sheer, or rather swept over bodily, towards mid-channel, although, as the answer alleges, “she had put her wheel harda-port, and dropped her main peak, but was unable to control her movements.” Before she took this sheer she was overtaken by the steam-tug Fred. Jansen, towing the schooner William O. Snow ou a hawser about 300 feet long. The tag passed the Titus on the latter’s port sido, and had got beyond her when this sheer took place. The Titus swept over anti came in collision with the Snow, although the latter starboarded to avoid her, coming, in consequence, into contact with a lighter on her own port hand. The material point in the case is the distance at which the tug passed the Titus; for, being the overtaking vessel, it was her duty to allow a sufficient margin of safety for herself and her tow, or to delay passing the Titus till a wider channel, the absence of other craft, or a more favorable condition of wind and tidal currents gave assurance that she might pass in safety. There is great difference between the witnesses in their estimates of the distance between the tug and the Titus when the former passed her. The witnesses from the Titus make it about 25 feet, those from the tug and the master of the tow 100 to 125 feet, and the tug’s pilot 300 feet. Disinterested witnesses estimate it at from 40 to 150 feet. There is a like discrepancy in the estimates as to the distance of the Titus from shore. The district judge found the place of collision to be nearer 300 than 200 feet from shore, and that the tug passed the Titus with a margin of 200 feet, (which is a larger estimate than that of any witness except her pilot;) and hold that to bo a reasonable distance to pass, because, though the tug’s pilot might expect some swinging by the Titus when she struck the flood-tide, he could not expect her to swing out so far. It appears by undisputed testimony that when the tide is flood there is slack-water along the Ward’s Island shore, extending out some way from the shore above Negro point, and a sharp set of the tide from Negro point over towards the Long Island shore, the natuial tendency of which is to throw a vessel coining out of the slack-water into the tide over towards mid-channel.
The testimony seems to leave no doubt that the movement of the Titus was caused by the action of this tidal current, which she was unable to counteract, because, the wind dying out, she had not sufficient motive power to make headway against it, and that she did all that