The Rhode Island
1 Blatchf. 363
U.S. Circuit Court for the Dis...
1848
Check Treatment
NELSON, Circuit Justice.

This is a libel against the steamboat Rhode Island for damages done to the propeller Naugatuck by a collision between the two vessels, which occurred in Hell Gate on the 28th of October, 1840, between four and five o’clock p. m.

The preponderance of the testimony is tlinr the Rhode Island was in fault in attempting to pass the Naugatuck in the Gate, considering the position of the latter at the time *645and the course she was pursuing through that narrow and dangerous passage. Notwithstanding some evidence to the contrary, the weight of it is not to be mistaken, that the Naugatuck was in her usual course, and not only so, but as nearly as practicable in the usual course taken by vessels of her size and power in passing the Gate, that is, heading towards the Pot. Some pass south of it and some north. In this instance, the Nau-gatuck was heading a little to the south of it, and intended, apparently, to take that course. But it makes no difference which side •of it she intended to pass. She had just straightened up in the stream after a rank sheer on encountering the force of the ebb tide in doubling Hallett’s Point, and was in about the middle of the channel. Under the circumstances, the Iihode Island was clearly in the wrong in attempting to pass her, as, upon all the evidence, it could not be done without imminent danger of a collision. The proof shows that the Rhode Island, in doubling Hallett’s Point in the then state of the tide, always sheers to about the middle of the •channel between that Point and the Hog’s Back, which would, of necessity, or at least in all probability, produce the disaster that actually happened.

[NOTE. The cause again came before the -district court on exceptions to the commissioner’s report made in conformity with the order of the court in Case No. 11,745. The exceptions were overruled, except as to the award •of compensation. Id. 11,740a. An appeal was then taken to the circuit court, where the decree of the district court was affirmed. Id. 11,-744.] _

The pretence set up for exposing the Nauga-tuck to this peril is, that to have slowed or stopped the Rhode Island after she had passed Flood Rock would have greatly endangered her safety and the lives of her passengers. If this be admitted, the answer is, that •she was brought into the dilemma through her own fault. She saw the Naugatuck in season to have avoided the difficulty, and, not having avoided it, she must be subjected to all the consequences that followed.

Indeed, upon the evidence, I should feel bound to hold any vessel responsible for a collision that occurs in her attempt to pass another while struggling in that dangerous strait, there being no fault on the part of the latter. Decree affirmed.