254 F. 673 | 2d Cir. | 1918
(after stating the facts as above).
This is a case of special circumstances under article 27 of the Inland Regulations (Act June 7, 1897, c. 4, § 1, 30 Stat. 102 [Comp. St. § 7901]), which is found in the margin.
The steam tug Geneva had taken in tow on her port side on this same morning and at about 4 o’clock a Rehigh Valley car float which she was to put into Bridge No. 1. The tug had come out of the Morris Canal Gap which was north of where Transfer No. 17 was lying. The Geneva backed out from the upper side of Pier A into the river, and got her float upon her starboard side, and the tug and float were on a line substantially up and down the river. The Geneva then started to drop down with the tide, there being a very strong ebb tide. The captain of the. Geneva testified that when he got out into the river and swung the float around he judged he was about 250 feet from the end of the pier and that he was out far enough to clear the floats by 100 feet, if not more, if Transfer No. 17 had remained at rest. Before he came out from Pier A he knew of the position of Transfer No. 17. After he got out into the river and was drifting down he says Transfer No. l7 started to1 push her floats up the river and that the out-river end of the float swung up in an arc of a circle. He claimed that he immediately blew an alarm and started his engine at once straight ahead, “hooked up to try to get away from him (Transfer No. 17), to get further up the river.” Prior to this attempt of Transfer No. 17 to push her floats up the river the. Geneva evidently intended to drop down and pass as close behind the stern of the New Haven floats as might be, and then attempt to shove her own float up and into Bridge 1. But in carrying out such a maneuver the duty was clearly upon the Geneva not to attempt to squeeze in behind the stern of Transfer No. 17 by a slight margin of safety a.nd without indicating her navigation and making known that she desired the Transfer to remain still until she had passed. And as a matter of fact there was nothing in the river which would have prevented the Geneva from going out a little further into the stream instead of trying to pass under the stern of the Transfer and in such
The court, however, does not agree with the District Judge in his conclusion that no blame can be attached to Transfer No. 17. If the Geneva started down the river after No. 17 had begun to shove her floats up, as the District Judge has found, there would be a great deal to be said in favor of his exoneration of No. 17; but as we read the evidence it has convinced us that the Transfer began to shove after the Geneva started drifting down the river. The master of the Lu-zerne, who witnessed the collision, testified that after he saw the Geneva in the river, and drifting down with the tide, Transfer No. 17 started shoving the floats up, and that they were shoved quite a distance before the Geneva blew her alarm, which the New Haven tug answered. He was asked whether the New Haven tug (Transfer No. 17) stopped after the alarm was blown, and he was very positive she did not. He formed his opinion from the action of the water from the tugboat and from the bells, which he could hear being rung from the pilot house of the tug. The master of No. 17 testified that he saw the Geneva when he started to push the floats in, and that she was then out in the river dropping back. At a subsequent time he was asked whether he had gotten under way when he first saw the Geneva, and he replied, “Just starting to shove the floats up when I saw her.” Afterwards he said he did not see her before he started to move the floats. “I had started to move the floats when I first saw her.” When he started to push the floats intd the river, it was necessary for him to swing between four and six points of the compass, and he was asked whether, before he started a maneuver of that sort, he would count himself a prudent man unless he looked to see what other boats there were in the river. He replied, “Well,, it probably would be imprudent if I didn’t look.” He claimed, however, that he did look, and was asked, “How is it that you didn’t see her when you first started out?” To this he replied, “Well, I don’t know.” After-wards he was asked how long he had been shoving on his floats when he first saw the Geneva. His reply was, “A very short interval of time, possibly 10 or 15 seconds.” The Geneva must have been in plain view when Transfer No. 17 began the maneuver which resulted in this collision. If the captain of No. 17 did not discover her before he commenced the maneuver, it must have been because he did not look, and if he began it without looking he was at fault. He was in like manner at fault if he began his maneuver, as we think he did, after the
The decree dismissing the libel is reversed, and the court below is directed to reinstate the libel and enter a decree for half damages against the steam tug Transfer No. 17.
“Article 27. In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.”