THE PERSEVERANCE. THE DUTCHESS

THE PERSEVERANCE. THE DUTCHESS. (Circuit Court of Appeals, Second Circuit. March 26, 1926.) Nos. 254, 255. 1. Collision <6=71 (2) — Tug, which saw anchored canal boat and tow soon enough to keep clear, held at fault for collision of tug’s tow therewith. Tug, which saw canal boat and tow ancho-red in Hudson river channel soon enough to keep clear, held at fault for collision of tug’s tow therewith. 2. Collision <®=74 — Evidence held to show that anchored canal boat failed to show required signal, and hence was at fault for collision of tug’s tow with it and its tow. Evidence held to show that canal boat, anchored in Hudson river channel, failed to show black ball by day, as required by rules of supervising inspectors, and hence was at fault for collision of tug’s tow with canal boat and its tow. Appeals from the District Court of tbe United States for the Eastern District of New York. Libels by tbe Wright & Cobb Lighterage Company, Inc., as owner of tbe barge Albert Ruyter, against tbe steam tug Perseverance, tbe Cornell Steamboat Company, claimant, impleaded with tbe steam canal boat Dutchess, tbe New York Canal & Great Labes Corporation, claimant, and by tbe New York Canal & Great Lakes Corporation against tbe steam tug Perseverance, tbe Cornell Steamboat Company, claimant. From decrees against tbe steam tug, tbe claimant thereof appeals. Reversed and remanded, with directions. Appeals from final decrees in admiralty entered in tbe District Court for tbe Eastern District of New York. During tbe night of June 13-14, 1923, tbe steam canal boat Dutchess, on a Voyage up tbe Hudson river, encountered fog, and for that reason anchored-just below Haverstraw. She bad 5 boats in tow, and, as is tbe custom with vessels- of her kind, tbe flotilla was so arranged that it was, so to speak, solid around all of tbe Dutchess, except her stem. Thus she towed by pushing. She lay on tbe westward side of tbe channel, and, owing to tbe formation of her tow, her anchor was cast out astern, so that, when tbe tide ebbed, she beaded down stream. Shortly after daybreak, tbe tide being ebb, tbe Perseverance, with a tow of 28 boats in 7 tiers, came down with tbe tide; tbe tug and tow making 4 or 5 miles an hour. Tbe whole, length of tow and hawser was about 1,300 feet, and tbe master of tbe tug is sure that he saw tbe Dutchess about a mile off. Tbe master of tbe Perseverance recognized tbe Dutchess and tow for what they were, but, as they were beaded down stream, on an ebb tide, the tug master thought tbe canal boat was under way and being overtaken by him. Under this mistake the Perseverance continued until, being about 500 feet astern of tbe Dutchess, the- sheer of tbe canal tow as it lay at anchor revealed tbe truth, whereupon tbe Perseverance attempted to haul to tbe eastward, but there was not room enough for that maneuver with so long a tow, and some of tbe boats were swept down by tbe tide against the Dutchess and her accompanying boats. Various causes arose out of this collision, which were tried together. Tbe Perseverance was held solely at fault, and her owner appealed. Kirlin, Woolsey, Campbell, Hickok & Keating, of New York City (Robert S. Erskine and Henry P. Elliott, both of New York City, of counsel), for appellant. Macklin, Brown & Van Wyck, of New York City (Paul Speer, of New York City, of counsel), for appellee. Before ROGERS, HOUGH, and MANTON, Circuit Judges. [MAJORITY — HOUGH, Circuit Judge] HOUGH, Circuit Judge (after stating tbe facts ás above). Although tbe evidence as to weather in the very early morning of June 4th is neither full nor altogether harmonious, we are satisfied that Perseverance saw Dutchess and her tow soon enough and long enough to keep clear, which was a-duty incumbent on tbe tug, whether tbe canal boat was moving or moored. We therefore agree that Perseverance was at fault. But we are satisfied that Dutchess also was negligent. She bad anchored in tbe channel, wherefore prudence and common sense taught that extreme care should be exercised in warning other vessels using that channel. It is admitted that a then recent rule of the supervising inspectors required vessels anchored as was the Dutchess to show a black ball by day, indicating that she was anchored. Whether this ball was in fact displayed is the contested point in this ease. The lower court held that it was, and the master and mate of Dutchess so swore. Indeed, the mate swore once that he put it up at daybreak, and- at another time that he raised the ball when he saw the Perseverance approaching, which was some hours after daybreak. Again, the mate is clear that he went to the locker and got the ball out for service, while the master is equally clear that he had gotten the ball out and had it ready. at 1 a. m. The evidence from the Perseverance is direct that there was no ball displayed. What in our opinion turns the scale is the undoubted fact that the master did not mention the display of any ball in his report to the local inspectors, nor in his testimony before them did he claim to have displayed one, though the inspectors called his attention to the rule as so recent that he had perhaps overlooked it. In short, we wholly disbelieve the evidence of master and mate on this point, and are of opinion that, had a ball been displayed, the master of Perseverance, who saw Dutchess a mile off, would have known of her immobility in time to go clear. Decrees reversed, with costs to appellant, and causes remanded, with directions to enter new decrees holding Perseverance and Dutchess at fault. Costs of lower court to be- adjusted by that court.