54 F. 204 | 2d Cir. | 1893
This case arises from a collision wMch occurred in the East river, on the New York side, near the entrance to &e ferry slip between piers 56 and 55, between the ferryboat Superior and Ae barge Afton, which was then in tow of the tug Boyal. The collision occurred in the afternoon of a clear day, and the tide was strong flood. The ferryboat was making-one of her regular trips from Brooklyn to the slip mentioned, and the tug and tow were proceeding down the river on the New York side on a. course parallel with the ends of the piers. The Alton was being towed on a hawser about 180 feet long. The ferryboat shortly before had passed in front of the bows of the tng to make her slip. She failed to make it, and war. trying to enter it when site came in contact wiih the tow at Ae bluff of the latter’s starboard bow.
The question in the case is whether the tug and tow were proceeding down the river so near (he ends of the piers when the collision took j)lace that the ferryboat, notwithstanding she was not guilty of any fault or negligence, could not avoid striking the tow. Upon the evidence there ⅛ no reasonable support for the theory that the ferryboat missed making; her slip, and struck the end of rad-: A by reason of faulty navigation; and it must be taken as established and uncontradicted that by reason of the swift and suddenly changing currents of the eddy at the slip such an occurrence is at times unavoidable, and was upon the occasion ⅛ question. If, as is contended for ilio ferryboat, while she was trying to enter ha1 slip, her engine having previously been stopped and reversed, she was thrown by the eddy against the end of the division rack A, rebounded, and was carried by the tide, stern up river, against the'tow before she could recover control sufficiently to keep out of the way, she was without fault; and if the tug had gone with ilie tow unnecessarily near the entrance of the slip, and was violating the state statute, which requires steam vessels to be navigated as near as possible in the center of the river, and by reason of her improper proximity to the slip brought her tow in the way of the ferryboat, alie was properly held to be solely in fault for the collision. The learned district judge before whom the witnesses for both parties were examined delivered a careful opinion. It appears from it that he believed the witnesses who testified, in substance, that the ferryboat, when she struck Ae tow, was not backing to get a new si art for hex* slip, was about halfway out of the slip, — that is, her bow was about 20 feet from the end of rack A,--and that the tug, with the tow following' her, was on a course so near the ends of the piers to be only about 116 feet on (aide of the end of pier 56; and be disbelieved the testimony of Ae witnesses for the tug to the effect that the tug and tow were BOO feet away from the ends of the main piers, and that the ferryboat was backing, to make a new start to re-enter her slip, when she struck the tow. According to the well-settled rule governing appeals in admiralty, we ought not to disturb these findings, unless they are so inconsistent with evidence to the contrary, irrespective of facts depending wholly on the credibility of witnesses, as to satisfy ns that they are incorrect. The counsel for Ae appellant has made a very ingenious and entirely
The trial judge did not assume that the estimates given by the witnesses, whose testimony he accepted as true, were accurate either as to the distance of the tug from the ends of the piers, or the distance the ferryboat rebounded; but he accepted them as approximately correct, making the observation, in his opinion, that no great weight can be attached to estimates of distances in feet when no special attention was given to the subject. The controlling facts which he deemed to be established were that the ferryboat was not backing in order to make a new start for her slip when she struck the tow, and that there was such a brief interval after she rebounded and before she struck the tow that she could not practicably be put ahead. Mathematical calculations seldom form a solid basis for judgment in collision cases. The factors which enter into them are generally uncertain quantities, susceptible of so much elasticity that the resultant is apt to be fallacious. In the present case the only factor wMch is reliable is that of the distance from the stem of the tug to the place of the blow on the tow. Suppose the ferryboat passed the tug 300 feet in front of the tug’s bow, does that mean that her stem, her stern, or her midsMp was 300 feet away while on the line of the intersecting course? As the ferryboat was 170 feet long, her stern may have passed the bow of the tug only 130 feet away. Were, the vessels on courses at right angles, or on converging'courses ? Was the tug going at a speed of three or five miles an hour? Was the ferryboat going fast, or quite slow, as she was nearing her slip? With how much force did the tide operate on her stern when she rebounded? Different answers may be given, consonant with the testimony, to all these questions. If she was 200 feet away when her midship was. opposite the bow of the tug; if by her rebound and the force of the tide she was carried 40 feet back, and her stem thrown up the river; if her headway was almost stopped as her bow neared her slip; and if the tug was going at a speed of 5 miles an hour, — the collision could have happened substantially as the trial judge found it did. We have not
The decree is affirmed, with costs.
