The John H. Starin

162 F. 146 | 2d Cir. | 1908

PER CURIAM.

We concur with the district judge. The Starin was the privileged vessel, and as such was required to maintain her course and speed. She wholly failed to maintain her course. When the vessels sighted each other she was about 50 feet from the Tenth street buoy and a little on the Brooklyn side of midriver, bound down to round the Battery for her berth on the North river. The collision took place about 100 feet off the line of the New York piers, a little below the Houston Street ferry.

The Jamaica was the burdened vessel, and was required to keeip óut of the way of the Starin, and to avoid crossing ahead oi her if the circumstances of the case admitted. Act June 7, 1897, c. 4, arts. 21, 22, 30 Stat. 101 (U. S. Comp. St. 1901, p. 2883). We are at a loss to see what circumstances there were which did not admit of her executing such manceuver. Instead of doing so, she persisted in crossing ahead, although, as her own pilot testifies, three successive two-hlasts whistles which she blew, indicating thereby a wish to navigate otherwise than in accord with article 22 (The George S. Shultz, 84 Fed. 610, 28 C. C. A. 476; The New York, 86 Fed. 814, 30 C. C. A. 628), were each responded to with a single-blast whistle, which was a distinct refusal to enter into any agreement to modify the requirements of the article.

We do not agree with her counsel in construing pilot rule 2 as allowing the burdened vessel to abrogate article 22, by blowing a signal which indicates an intention to cross ahead, when the circumstances of the case admit of her crossing behind. The latter part of the rule would seem to indicate that it was framed so as not to be in conflict with the articles, and, if it were, the articles, and not the rules, are of superior authority. The John King, 49 Fed. 469, 1 C. C. A. 319.

The decrees are affirmed, with interest and a single bill of costs of this court to the McLain against both appellants.