THE M. G. LEONARD. THE CARROLL BOYS. THE M. E. LAUGHLIN. SWEENEY v. THE M. G. LEONARD

THE M. G. LEONARD. THE CARROLL BOYS. THE M. E. LAUGHLIN. SWEENEY v. THE M. G. LEONARD. (Circuit Court of Appeals, Second Circuit. April 8, 1897.) Collision—Tugs and Tows—Entering Slack Water. A tug towing a barge on a bawser from Jersey City around the Battery-to tbe East river held solely in fault for a collision of the barge with a schooner in tow of a tug rounding the Battery in the opposite direction, because she miscalculated or neglected to consider the space necessary for the turn of the barge in going through the slack water. Appeal from the District Court of the United States for the-Southern District of Hew York. This is an appeal from the decree of the district court for the-Southern district of Hew York holding the steam tug Carroll Boys-solely in fault for a collision between her tow, the barge M. G. Leonard, and the schooner George Hurst, in tow of the tug M. E.. Laughlin. The opinion of the court below (BROWH, District Judge) was in full as follows: About noon on the 12th of September, 1894, as the libelant’s schooner, George-Hurst, was going around the Battery from the East into the North river, in tow on a hawser from the steam tug M. B. Laughlin, she came in collision with the-barge M. G. Leonard, which was in tow of the steam tug Carroll Boys, which had crossed the North river from the Jersey Central piers, Jersey City, and was bound up the East river in the last of the ebb tide. The stem of the barge struck the port side of the schooner, aft of the mainmast, at an angle of about five or six points, in consequence of which she sank in a few minutes. The-above libel was to recover the damages. The libel charged that the collision was caused by the negligence of the barge Leonard in not following the course of her tug, the Carroll Boys, but in allowing her to take a sheer to port shortly before the collision. It is contended that the two tows, but for that sheer, would have passed clear of each other, as the-tugs had done, by a fair margin of from 75 to 100 feet. The answer of the-barge denied any negligence or any sheer, and alleged that the fault was in the tug in not keeping the tow sufficiently away; and under the fifty-ninth rule the-barge brought in the two tugs as additional defendants, both of which denied fault and assigned the alleged sheer of the Leonard as the cause of the collision.. If there was any sheer to port by the barge shortly before the collision, the evidence does not warrant the finding of any negligence on the part of the barge as the cause of it. All the witnesses who testified on the subject express the opinion that it was the force of the North river ebb upon the stern of the barge, as her bows entered the slacker water to the eastward between the currents of the North and East rivers, that caused the sheer they speak of; and they suggest that it should have been counteracted by a port wheel on the barge. But the barge’s evidence leaves no doubt that her wheel was put hard a-port; that the wheelman put the wheel over as soon as he saw the pilot of the tug port his wheel; and that additional men on the barge helped to keep the wheel hard, a-port. The witnesses on the barge, moreover, deny that she sheered to port at all, but state that in fact the barge turned one or two points to starboard, although this was less than she would have turned under the same wheel but for the force of the ebb tide on her stern as her bows went into the slack water. Upon a careful consideration of all the testimony I am satisfied that the account of the men on the barge is substantially true. I am persuaded that what the defendants’ witnesses call a sheer was no sheer through any mistake in. handling the wheel, and probably no real sheer at all, but only a relative slowness in a change to. starboard under a port wheel, by which, as compared with the position and more rapid swing of the tug Carroll Boys, there was such a difference in the pointing of the barge and the tug as to give the witnesses the impression that the barge sheered to port. The place where the collision occurred, taken in connection with the angle of collision and the heading of the schooner at the moment of collision, tend strongly to confirm the statement of the Leonard’s witnesses that there was no sheer at all to port, but that they merely came around slowly to starboard, on account of the stronger ebb current at their stern than at their bows. Nearly all the witnesses agree that the collision occurred in the slack water to the southwest of the Battery wall, and the place of collision is pretty accurately fixed from the position of the sunken schooner, which the witness Timmons testifies was about 600 feet from the Battery wall and about 50 feet easterly from a line drawn from the bath house (which is between the barge office and Castle Garden) to the easterly side of Liberty Island. This point was about three hundred feet to the eastward of the line where the North river ebb is sensibly felt, which, according to the witness Windsor, is at that stage of the tide about on a line from the end of pier I to a point on Governor’s Island 300 feet easterly from the easterly side of Fort William. Considering that the hawser was 150 feet long and the barge 105 feet long; that their progress was at the rate of about three or four knots through the water, and that they were heading, at the time when the signal of one whistle was exchanged, nearly directly across the North river, and about for the barge office, there can be no doubt that at the time when the whistles were exchanged the barge was drawing very near to the slack water and very soon entered it, and that the effect of the gradual slackening of the current at her bows while the current at her stern was stronger was to retard the action of her port wheel. The great majority of witnesses do not place the angle of collision at above five points, and the heading of the schooner at that time, according to the testimony of the pilot of the Laughlin, must have been one or two points to the north of a line from the schooner to the Pennsylvania Railroad Ferry at Jersey City. An angle of five points from this course would malte the barge heading at least two or three points to starboard of any possible course by which the tug and tow could have arrived off Castle Garden from the Central Ferry in the ebb tide. The master of the schooner, however, says that at the time of collision he was heading towards the New York shore, above Castle Garden, and that the angle of collision was seven points. This would make the heading of the barge at the collision about the same as the above; while if the heading of the schooner is correctly given by her master, and the angle of collision was only five points, the barge at collision must have turned to starboard about three to four points from the heading by which the river must have been crossed; and this indicates that there was no actual sheer by the barge to port, but only a slower turning to starboard than the tug, giving the deceptive appearance of a sheer to persons upon other moving vessels. The Sam Sloan, 65 Fed. 125, and eases there cited. The two witnesses from the shore who speak of a sheer, did not see any actual sheer, and probably spoke from the great divergence between the direction of the tug and the barge. The responsibility for the collision seems to me to lie with the Carroll Boys alone. It was the Carroll Boys that was bound to keep out of the way. When the signal of one whistle was given, viz., when the tugs were from 300 to 500 feet apart, it became the duty of the Carroll Boys not only to keep to the right, as her whistle indicated she would do, but to keep far enough to the right, and to direct her tow to take that course early enough, to prevent any swing by the barge upon the course of the Laughlin and the schooner, which were already quite near the shore. The barge was a long boat, and not quickly bandied like a tug. Her wheelman was not chargeable with knowledge of the tide currents to the same extent as the pilot of the tug, and cannot be charged with negligence for not porting until he had some notice that he was required to do so, either by some direction from the tug or by seeing the tug port. He was watching the tug, and he ported as soon as he saw the tug port; and no signal at all was given to him by which he might have been apprised of the need of porting earlier. The true cause of the collision was that the Carroll Boys delayed her own porting, and omitted signaling to the other tug, or to give directions to her own tow until it was too late for the tow to clear. She was going towards the left-hand side of the East river for the benefit of the slack water there, and no doubt miscalculated or neglected to consider the space necessary for the turn of the barge- in going through the slack water. This evidently was a risk of the tug and not of the tow. I do not see any sufficient reason for charging the Laughlin with fault. The evidence seems to show that as soon as her pilot perceived that the barge was not swinging to starboard as much as the tug, giving the appearance of a sheer, he did all he could do to prevent a collision between the barge and the schooner, by putting his wheel hard a-port, shouting to the schooner to do the same, and pulling to starboard full speed. This was the only chance of escape. Decree for the libelant against the Carroll Boys, with costs; dismissal of the libel as against the barge and the Laughlin, with costs; and an order of reference to compute damages if not agreed upon. Samuel Park, for appellant, The Carroll Boys. Nelson Zabriskie, for The M. G-. Leonard. Lawrence Kneeland, for The M. E. Laughlin. Stewart & Macklin, for Elizabeth Sweeney. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. We do not find in the record sufficient reason to reverse the decision of the district judge, who heard and saw the witnesses. The testimony indicates quite clearly that they differed greatly in intelligence. While we do not in all respects agree with the theory of the movements of the vessels as set forth in his opinion, we concur in the conclusion of the district judge that the proximate cause of the collision was the navigation of the Carroll Boys, which was evidently making for the left-hand side of the East river, and “miscalculated or neglected to consider the space necessary for the turn of the barge in going through the slack water” of the Battery. The decree of the district court is affirmed, with interest, and costs to the Leonard against the appellant.