McClellan v. Volunteer & Syracuse

49 F. 477 | S.D.N.Y. | 1892

Brown, District Judge.

On the 19th of March, 1891, about 2:30 u. m. , the tide being flood, as the steam-tug Volunteer having a car-float on her starboard side, was passing Horn’s Hook in coming from the Harlem river, and intending to go down in the easterly channel past Blackwell’s island, her float came in collision with the libelant’s canal-boat Elbe], which was going up river in tow of the steam-tug Syracuse and on her starboard side, and the Ethel soon after sank. The libel was filed to recover the value of the canal-boat and cargo, with the personal effects of those on hoard.

There is considerable difference in the testimony concerning the precise place of the collision, whether immediately off Horn’s Hook at Eighty-Ninth .street, or 200 or 300 feet below that point. But I think this difference is not vefy material. The pilot of the Volunteer saw the Syracuse quite a distance below the point, and gave her a signal of two whistles, to which the Syracuse immediately replied with two whistles. This imported that the Volunteer would go across the bow of the Syracuse. That would be pursuing her usual course towards the eastward of Blackwell’s island. I have no doubt she did. pursue very nearly her usual course; that she did not make any such sheer to starboard as to point towards the New York shore, but that she went very near to the shore at the point of the Hook, and that the collision was caused thereby. The evidence leaves no doubt that the Syracuse on the other hand hauled in as near as it was prudent to go to the New York shore, as it was proper she should after the signals, and that she went as near shore as the Volunteer had any right to expect her to go. The Syracuse also slowed, and soon after stopped and backed. The bow of the Ethel struck the car-float near her stern. Several witnesses for the Volunteer place her stern at the time of collision 200 feet from the shore; the witnesses for the Syracuse make her much nearer; and Hommel, an independent witness on the Three Brothers, just astern of the Volunteer, who was in the best place possible to see' the position of the Volunteer, says the Volunteer was running only about .100 feet off the Hook, so that he had to change his course and back off.

Without entering further into the details of the conflicting testimony, no reason is shown on the part of the Volunteer why, after she gave her signal of two whistles and received the assenting answer of the Syracuse, which was on the yblunteer’s starboard bow, she did not shape her course more to port, so as to give more room for the Syracuse to pass between her and the shore. The Syracuse was coming up with a strong flood-tide, and there was the more reason, therefore, why the Volunteer should give her sufficient room to pass, and not block her way. The Galatea, 92 U. S. 439. She had no right to expect the Syracuse to come to a stand-still in such a tide-way as there was there, to enable her to avoid the Volunteer, when the Volunteer, by shaping .her course more to the left, could have avoided her. The Syracuse, on the other hand, did have the right to assume that the Volunteer would keep to port enough to let the Syracuse go past, as nothing prevented the Volunteer from doing so. The Volunteer, when she gave her signal of two whistles, was presumed to know what she could do, and on what to calculate; and in giving a signal of two whistles she took the risk of giving the Syracuse sufficient room to pass astern. The collision came from the miscalculation by the Volunteer as to the rapidity of the approach of the two vessels, and from her consequently going too near the point of the Hook.

I cannot find upon the evidence that the Syracuse was dilatory in backing; that is to say, that she did not reverse as soon as she had reason to suppose that the Volunteer was not shaping her course to port sufficiently and in time to allow the Syracuse room to pass. The Green-point, 31 Fed. Rep. 231; The F. & P. M. No. 2, 44 Fed. Rep. 701.

Judgment should, therefore, be against the Volunteer only, against which a decree for the libelant may be taken, with costs; and as respects the Syracuse, the libel is dismissed, with costs.