122

FEDERAL REPORTER,

vol. 45.

'not materially change the merits, there is no reason why the circuit court should not observe the rule. The Emulous, 1 Sum. 214; Scott v. Four Hwndred a'ltd Fort'!l-}ive Tans Coal, 40 Fed. Rep. 260.. If a contract had been made in advance for the use of the equipment and hire of the employes of the salvors, the latter would have been entitled to compensation amounting to about $22\000, irrespective of any allowance for the risk ofinjury to their equipment. Very likely that sum, with an allowance added for risk to equipment, would represent a fair return for their investment and expenses, in view of the general conditions and chances of the business in which they were engaged. But, no contract of that kind having been made, they are entitled in addition to a reward, not only for the promptness and energy displayed in the particular service, but also by way of encouragement to others to assume the risk of such enterprises, and go with zeal lothe assistance of vessels in distress, In view of the labor expended, the value of their property employed, the risk incurred to that property, the value of the steain-ship, and theurgency of her situation, it cannot be doubted that the salvors should receive compensation considerably in excess of the value of the hire of their equipment and men, and of the mere risk encountered. A decree is ordered for the libelants for $20,233.52, with interest from the date oithe decree of the district court, together with the costs of thateourt and of this court.

THE CYCLOPS.l

STEAM-SHIP Co.

'11. THE CYCLOPS.

(Dtstnct Oowrt, B. D.NfADYork. January 20,1891.)
CoLLISION-BETWBlIN STEAMERS-RuLE OJ/'THIIl STARBOARD HAND-MARGIN FOR SAFBTY.

: The steamerC. C. was lyIng in the East river, 100 or 200 feet ofl pier 86, b,ow down stream, and holdIng herself, against the strong flood-tide. ,The tug Cyclops, with a on her starboard side, rounded ill. t\!le river to land the :lloat,at pier 27. T.he tug's witnesses sta.ted that when she was some 100 or 200 feet ,froln the steamer ehe baCked strong." 'The master of the ,teamer, not knowing that she was bacll;in,g, hailed her to go ahead, strong. The,tugd,id so, but the car-float nevertheless struck and broke the stem, of the steamer. The situation and puppose of the steamer were from the flrstmanifest to the latter, by backing when out in the river, could have turned down stream, and kept away from the that the case V\'ll<!nO,tt6 be decided upon the uncertain possibilities of the short Interval before collision, but that the tug, being the, principal moving vessel, and haVing the steamer ()nthe starboard hand, wae bound seasonably to of the latter's way by a suftJcient margin for safety, and not to, come into dangerous proximity to the steamer which was near the dock; that the hail of the master of the steamer'did not change the obligation of the tug; that hi,S hail was an ,error in extremis ; that the tug was solely responsible for: the col,lision.

1n

S:uit for dama.ge by collision."

lRepq1'ted by Edward G. Benedict, Esq., of the New York bar.

123
Oatpenter,kMiJsMr, fodibelant. , Tracy, McFarland, lvirt8, Boardman & Platt, for respondent.
BROWN, J. On the 15th of September, 1890, 8S the steam-tug Cyclops, bavinga car-float on, her starboll,rd side,Wfls -rounding. in. the Eastriverju.st above the bridge, to land her tow against the strong floodtide at pier 27, the starboard quarter of her tow struck against the stem of the libelant's steam-ship City, which was lying nearly at rest 100 or 200 feet oft' pier 36, having dropped dPWll from pier 38 above, about 300 feet in a11, to allow the City of New Bedford to make her dock there. The current there at the strength of the ebb is from two to three knots. It is said to have been running unusually strong that day, and theCottllgeCity could only hold her own, while waiting in the tide, by keeping her propeller more or less in motion, and this was doubtless aecompanied bYlilome change of position. The defendant contends that when from 100 to 150 feet distant from the bows of the steamer, and heading some 3 or 4 points do\Vn river, and towards the New York shore, the tug was backing strong, and would have swung around so as to head directly down river, and have come alongside the steamer without damage, had not the captain of the latter hailed the pilot to go ahead strong, stating that he was backing; whereupon the pilot put his engine ahead, and collision resulted. It is now contended that the steamer was not backing, so tbaUhe float by going ahead was carried by the tide across the steamer's head, and broke her stem. , The parties entirely disagree in their theories. of what might have been done, or should have been done, at the time when the steamer's hail to the tug was given; the witnesses for the steamer testifying that, as the tug was then going, she would certainly have come in collision, which the tug denies. There is no doubt that the captain of the steamer acted upon that belief, and ordered his engine reversed either before or at the very time of his hail. He may have been incorrect in supposing that the tug could not the steamer by backing. He testified that he did not know she was then backing. One of the defendant's witnesses considered that the pilot of the tug ought not to have gone ahead on the steamer's hail, but to have kept on backing nevertheless; while the pilot considered himself justified in. acting in accordance with the request of the steamer, and that the, slieamer thereby took the. risk of the result, and that the collision would 'have been avoided had the steamer made any effective backing. Neither the rules of navigation, nor the rules of decision in the courts are designed to make the determination of causes turn upon points so fine and uncertain as these. The faults, if any, are to be sought further back. It was the business of the tug, not only as the principal moving vellsel, but as having the other upon her own starboard hand, to keep out of the way of the steamer. Whatever change of position the steamer was making was but small. She was in the immediate vicinity of the docks, moving slightly, for the purpose of accommodating the other vessel in docking, or holding her place as well as she could ill

124

FEDERAL REPORTER,

'Vol. 45.

the strong tide near the end of the piers, while the other vessel was reaching her berth. Her situation and purpose were sufficiently plain and intelligible to the Cyclops, and it is not claimed that this purpose was not seen and understood. It was the duty of the Cyclops, therefore, seasonably to keep away from her by a sufficient margin for safety, so to admit oCalI such small changes of position as might be necessary to the steamer, and all such changes as in the present case are shown to have been made by her, and not to come into dangerous proximity. The OarroU, 8 Wall. 302; The Reading, 43 Fed. Rep. 398; The City of Springfield, 29 Fed. Rep. 923; affirmed, 36 Fed. Rep. 568; The Western Metropolis, 6 Blatchf. 210-214. The testimony for the Cyclops leaves no doubt that she might easily have done so. If, when she was within 100 or 150 leet of the steamer, she could by backing have swung 4 points more to port, while the tide was carrying her that short distance to the steamer, as her witnesses now claim, it is plain that she had abundant opportunity, many times over, for turning well down river and keeping away from the stearnerduring the much greater interval that elapsed after she was in mid-river, and had started ahead, since even then she was heading somewhat down river, as her witnesses state. The above consideration alone is sufficient to charge the Cyclops with fault. In effect, though having plenty of room to keep clear of the steamer, she did not do so by a sufficient margin to allow for the necessary and proper changes of p@sition by the steamer in maneuvering near the docks,against which it was the duty of the tug to provide. The Osceola, 33 'Fed. Rep. 719; The Mary Powell, 31 Fed. Rep. 622; affirmed, Rep. 598. I do not think the steamer is proved in fault. The statement of the captain that he was backing, or had rung the bell to back, at the tiille when he hailed the tug is proved by disinterested witnesses. It is not necessary to determine whether his hail to the tug to go ahead was best or not. His hail did not bind the tug, or transfer her obligations to the steamer. The situation was in extremis, the vessels quite near, and the tug drifting rapidly in the strong tide towards the steamer's bows. A mistaken order or a mistaken maneuver under such circumstances is not to be charged as a fault. The blame lies with the one who wrongfully brought ab6ut,the faulty situation. The Maggie J. Smith, 123 U. 8;349, 355, 8 Sup. Ct. Rep. 159. Finding that to be in the Cyclops only, the libelant is entitled to a decree, with costs.

THE W. II. BEAHAN.

125

THE W. H.

ALDRICH '11. THE

BEAMAN. BEAMAN

W. H.

et 01.

(l»8trWt Court, D. New Jersey.

February 18.1891.)

1.

COLLISION-BETWEEN STEAM-VESSELS-NEGLlGENCE-LoOKOtlT.

A collision in the East river between a ferry-boat and a canal-boat towed by a tug was caused by the failure of the tug to heed the signals of the ferry-boat. The tug had no lookout, and 'its pilot. looking at the ferry-boat from a window, mistook its course. HeW, that the collision was caused by the negligence of the tug in having no lookout. In the absence of any regulation oli the subject by congress. the New York law providing that the East river between the Battery and Blackwell's island shall be navigated as nearly as possible in the middle of the stream is valid. Where a collision occurs because one of the vessels is violating said law, such vessel is responsible for the accident. '

S.

NAVIGABLE WATERs-STATE REGULATION.

8.

COLLISION-NEGLIGENCE-VIOLATION OJ!' LAW.

In Admiralty. Hyland &; Zabriskie, for libelant. John GrifJin, for the Beaman.
GREEN, J. This action was brought to recover damages for the losl! of the canal-boat Moscow, caused by a collision which occurred on the 29th of July, 1889, in the East river, New York. From the mass of contradictory evidence submitted, the following facts may be sifted with some degree of certainty: About 7 o'clock in the morning of that day, the canal-boat Moscow, being loaded with about 250 tons of coal, was taken in tow by the steam-tug W. H. Beaman at Wiehawken, N J., on the Hudsol1, to be taken to Port Morris, N. Y. The Moscow was securely fastened to the starboard side of the tug, her bow projecting several feet ahead of the stem of the tug. The course of the tug was down the North (Hudson) river to the Battery, thence, rounding the Battery, into and through the East river to her point of destination. Just beyond the Battery, at pier 2, East river, is the New York city terminus or slip of the Hamilton Ferry Company, operating a ferry from that point to Brooklyn. This slip is so narrowly constructed that there is room only for a single jerry-boat at anyone time, and it is the usual and well-known custom for the incoming ferry-boat to await, out in the stream, the movements of the ferry-boat in the slip, generally delaying her own movements at or near Dimond reef, about 1,500 feet from the slip, until the outgoing ferry-boat had cast loose, and started on her trip to Brooklyn. Dimond reef is in the East river, and lies almost directly across the course between the New York city and the Brooklyn termini of the Hamilton ferry · .Tust about the time the with the Moscow in tow, rounded from the North river into the East river, at the Battery, the Baltic, of the Hamnoon Ferry Line, came nearly or entirely to a stand-still at or near Dimond reef, on hel,' trip from Brooldyn to New York, awaiting the vacation of "the ferry-slip by the ferry-boat then occupying it. The delay was on ,this occasion, however, very brief. The pilot of the Beaman plainly :aalti,c,whoseaccusoomed course he must cross, but.