105 F. 651 | 5th Cir. | 1900
(after stating the facts). The coal yard of Wilmot & Co. is on the Algiers bank of the Mississippi river, and occupies a space on the river front of about 400 feet. The coal yard of Coyle & Co. is just above and adjoining. On the morning of the 6th of February, 1899, at about 7 o’clock, the tug Maud Wilmot, with a coal boat containing about 8,000 barrels of coal and a coal palace, which is an elevated floating structure used in transferring coal from coal boats, started out from the Wilmot yard. The coal boat was fastened on the starboard side of the tug, and the coal palace was on the starboard side of the coal boat, but, being much shorter, was fastened well astern. The destination was a landing up the river on the New Orleans side, and the course taken by the tug was up and quartering across the river; compass course, S. W. W. Just after the tug Maud Wilmot, with her tow, left the Wilmot yard, the tug Ella Andrews, with a coal barge in tow on her port side, left the Coyle yard for her destination on the New Orleans side about five blocks down the river. The master of the tug Ella Andrews testifies that his course was a southwesterly course, that would take him quartering up the river a little. Very shortly after the Ella Andrews left her landing the starboard side of the Ella Andrews collided with the starboard bow of the coal boat in tow of the Maud Wilmot, inflicting some little damage to the Ella Andrews, sinking the coal boat, and inflicting some slight damage to the coal palace of the same tow. This collision occurred within a short distance of the Algiers shore, not over 300 or 400 feet out in the river. At the time of the collision the Maud Wilmot, with her tow, was headed up the river, and nearly straight. It follows that the Ella Andrews and her tow which collided with the starboard bow of the coal boat must have been headed down the river. It thus seems that, immediately after the Wilmot left her landing, the Ella Andrews rounded out from the landing just above, ahriid, and in front of the Maud Wilmot, each tug heading across, quartering the river, towards its destination; the Maud Wilmot up and the Ella Andrews down the river. The weather was foggy, — in the main, densely foggy; but, to reconcile the evidence of all the witnesses, there must have been occasional lifts or rifts in the fog. There is no doubt that betweeh 6 and 7 o’clock that same morning the Maud Wilmot had made á successful tow to the New Orleans side of the river, and from the evidence of the captain and other witnesses the fog must have been-more dense in some places than others; was shift
The first assignment of error is too general to merit attention. The second assignment of error is not well taken, because, if the facts averred are true, the proposition that, because the Maud Wilmot left her landing first, the Ella Andrews might disregard all rules, and run her down without responsibility, is decidedly unsound. The third assignment of error, relating to the preponderance of evidence, has been disposed of, as well -as the fourth, which questioned the right of the Maud Wilmot to commence her voyage in a fog with a tow of 7,000 barrels of coal. To. the fifth assignment of error we agree thus far: that the rules of navigation are intended for the prevention of collisions, and that, when, the observance of a certain rule in a particular case would not have prevented a collision, the nonobservance of a set rule becomes immaterial, provided the vessel is otherwise without fault. As noticed^ above, if the only fault of the Ella Andrews had been in not reversing her engines and backing when approaching the Maud Wilmot, we might have excused her master from responsibility for the collision. The sixth assignment of error is general.' The seventh and eighth, to the effect that the Ella Andrews was not equally in fault with the Maud Wilmot, are not well taken. The ninth assignment of error is general. On the whole case, we are of opinion that no reversible error is to be found, and that the decree of the district court should be, and it is, affirmed.