260 F. 241 | E.D.N.Y | 1919
This action is brought to recover for damages to the barge Upper Hudson No. 54 from collision with a car float in tow of the tug Port Johnson No. 7 in New York Bay at a point several hundred feet from the float bridges at St. George, Staten Island, on a line between the ferry slip and the Robins Reef Light. The collision occurred on Sunday morning, January 30, 1916, at about 1:30 a. m. The John D. Dailey had taken the barge in tow on a hawser between 50 and 60 feet long near Elizabethport, Staten Island, and was bound up through the Kills and up New York Bay to Canal street, North River. On the way up through the Kill and out into the Bay the tug was following the shore line and proceeding directly into a strong flood tide. The Port Johnson No. 7 had come out from the float bridges at St. George, Staten Island, drawing a car float loaded with several cars. When reaching a point several hundred feet from shore the tow line was cast off, the tug dropped back alongside the car float, and remained in that position, drifting with the tide, for some 10 minutes, while the men upon the tug and the cal' float were making the lines fast, so as to tow the car float alongside the tug. The men making the car float fast did not follow the direction of the tug captain, and some delay resulted while they were changing these lines and arranging them at the orders of the captain. During this time the car float and the tug were drifting to the west — that is, toward the Kill — with the flood tide. The Dailey was observed coming through the Kill towards the Bay and at such a distance from the shore that she would pass inshore of the car float and of the tug, which was then lying upon the starboard side of the car float. The Dailey blew a one-whistle signal, and the captain of the Port Johnson No. 7 paid no further attention to the Dailey until an alarm was sounded, followed immediately by a collision between the port forward corner of the barge Upper Hudson No. 54 and the port side of the car float near the after corner.
Upon the trial the captain of the Dailey testified that he saw the car float lying still some distance to the north of his course when he blew the one-whistle signal and that thereafter the tug Port Johnson No. 7 commenced to back, thus bringing the car float into collision with the barge. He testified that the Port Johnson No. 7 did not stop backing until the alarm was sounded by the Dailey. The Dailey then reversed, so as to attempt to bring the blow against his hawser, instead of against the barge, but did not succeed in so doing, and the collision resulted.
In his statement made to the United States local inspectors the captain of the Dailey, upon the day following the collision, stated that the “after starboard corner of the car float touched the forward port corner of the scow Upper Hudson No. 54”; but the testimony of all the witnesses at the trial shows that this was evidently a mistake, and that the blow was received by the car floát on her port side just a few feet forward of the after corner.
The testimony of the captain of the Port Johnson No. 7 and of his engineer is so clear and definite that it must be found as a fact that the engines of the Port Johnson No. 7 were not working astern at any
Upon the finding that responsibility for the collision rested upon the Dailey, decree may be entered dismissing the libel, and also the petition against the Port Johnson No. 7, with costs to the Port Johnson No. 7 against the Dailey, and also against the libelant. Inasmuch as the li-belant insisted upon waiving the default of the Dailey at the trial to the extent of asking to amend the libel and to proceed against both, the Dailey was in a position at any time up to the entry of a decree in the case to move to be relieved from its default, and to take such action as it might be advised; but no such application has been made. The Dailey has allowed the default to stand. The libelant, while seeking to prove liability against the Port Johnson No. 7, not only produced no witnesses against the Dailey, but actually called the captain of the Dailey as the only witness on behalf of the libelant against the Port Johnson No. 7. While doing this the libelant, however, amended the libel in such shape that fault was alleged against the Dailey and also against the Port Johnson No. 7, and then proceeded to contradict the allegation of fault against the D&iley by presenting to the court the testimony of the captain of the Dailey as a true statement of the occurrence as between the libelant and the Dailey.
This matter will be disposed of upon the application of the libelant for a decree, of which application the Dailey must have notice. No ■costs will be allowed to the libelant.