THE E. L. LEVY

THE E. L. LEVY. (Circuit Court of Appeals, Second Circuit. March 23, 1906.) No. 127. Towage — Injury of Tow by Collision with Wreck — Negligence of Tug. A barge in tow of a tug was injured by striking a sunken wreck in mid-channel of the Hudson river about dusk in the evening. There were two wrecks, one 1,600 feet above the other, and each marked by a buoy which had not at the time been lighted, but there was sufficient light when the upper one was passed to see the buoy and the captain of the tug know the location of both and could have avoided the lower one on which the barge struck by keeping further to the westward. Held, that he was in fault for not so doing, and that the tug was liable for the damages. Appeal from the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from a decree of the district court, Southern District of New York holding the tug E. D. Eevy liable for damages to the barge Stunner, which she had in tdw and which collided with a sunken wreck in the Hudson river near Dow’s Point just below Albany. The facts are rehearsed in the opinion of the district judge, reported in 108 Eed. 435. J. Parker Kirlin, for appellant. Ra Roy S. Gove, for appellee. Before LACOMBE, and COXE, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. We think the tug was rightly held in fault. Her navigators knew of the existence of the two sunken wrecks the Mac-donald and the Sheffield, and knew their location, in mid-channel. Plowever much the light may have faded by 10 minutes of 8 on the evening of May 19th, there was certainly enough left to disclose the presence of a buoy some little distance off. The tug was not in fault for starting when she did, nor is she chargeable because on that evening the wreck buoys were unlighted. Her navigators were entitled to assume that the lights would be there, until they found them extinguished. But the principal fault is that when it was found there was no light on the Macdonald, those in charge of the Eevy did not at once take steps to bring their tow further to the westward. They passed near enough to the Macdonald to see that her buoy was unlighted (if they failed to notice that circumstance their lookout was insufficient), and were thus warned that they might expect to find the Sheffield wreck-buoy also unlighted. It was about 825 feet below the Macdonald and before reaching it there was ample opportunity to haul over to the westward. It is stipulated that the distance from the Sheffield to the westerly line of the channel was about 175 to 190 feet, a space sufficient to have brought the'tow through in safety had the Eevy acted more promptly. She made no effort however to haul over to the westward until within 150 or 200 feet of the Sheffield wreck-buoy, and for that neglect must be held liable. The commissioner was apparently very liberal in his allowances for items of damage, although he rejected and reduced some of the li-belant’s claims. But the testimony was conflicting, he had all the witnesses before him, and the district court, after examination of the exceptions, sustained his findings. We do not find sufficient in the record to require a reversal on this branch of the case. The decree is affirmed, with interest and costs.