| U.S. Circuit Court for the District of Southern New York | Mar 22, 1889
"No new proofs were taken in this court. The district judge held the Quaker City in fault because, seeking to take advantage of the slack water by hugging the shore while and after rounding the Battery, she shaped her course too near to the Wilbur, which she might have seen ivas engaged in the business of shifting a part of her tow, instead of going further out into the stream. That decision is affirmed. The Wilbur was held in fault (o) because she had no one to observe the movements and attend to the signals of approaching vessels; (tí) because she gave no signals announcing her intention to hack; and (c) because she backed when she did. It is contended on behalf of the Wilbur that when engaged in the operation of shifting her tow she was not a navigating vessel; and that her conduct as to giving signals, etc., is to be judged not by the rules for navigating vessels, but by those for vessels at anchor or berthed. Whatever force there may be in the contention that a vessel when so engaged is no longer a navigating vessel, and as such need not give the signals, follow the courses, and make the movements prescribed for such vessels, she certainly is not actually in the same condition as one at anchor, or fast to a pier. She is not absolutely at rest, but changes her position from time to time by voluntary as well as by involuntary movements. It may be held that the water within which she, is executing her maneuver must he left free for her by other vessels, but even within that area she should move forward or backward only after exercising ordinary foresight to see if it has been so left. Because she may he helpless to take herself out of the way of collision with a vessel intruding into her water, it does not follow that she is equally helpless to refrain from such voluntary movements within that water as will make •a possible collision inevitable. That the Wilbur did actually move backward in the water, and did by this hacking cause her stem to lap somewhat the bows of the Quaker City as the latter came near her, is found by the district judge on conflicting testimony. Although such backward movement was one “natural, common, and necessary” to the maneuver of shifting a tow, and may not have been continued beyond the area usually required for the execution of such maneuver, it is hardly possible that any person of reasonable prudence would have undertaken such movement if aware of the close proximity of the Quaker City, and of her evident intent to intrude within such area. Had any one on board the Wilbur given proper attention to the movements of approaching vessels, the Quaker City and her probable course would have been noticed, and