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.FEDERAL REPORTER,

vol. 50.'

have been given as soon as it was possible for thos6on the Georgia to see the tug,because it was heard by the 'officers of the tug before they fully saw the. Georgia. The collision cannot, 'therefore, be attributed to the .want of 'a spadal lookoliton the Georgia. When the signal of one .whistle .was given by the Georgia she was gatkering headway on her course, which was about S. by W.,while the tug was apparently on a course about N. W. by N., and about 300 yards off on the Georgia's .port .bow. It wils the duty of the Georgia to hold her course, and the signal of one whistle meantihat her course was to starboard with referlence to the tug, and away from the wharves, and thnt she would keep jit. As the space between the Georgia and the wharves was constantly :widening, there was no reason for those in charge of her to suppose that, lif the tug was going at 8 prudent speed, there would not be space be. tween the Georgia's stern and the wharves for the tug to pass. There jwas nothing, therefore, misleading in the signal. Those in charge of 'the tug were not misled by it, but, after hearing it, and before they fully made out the movement and course of the Georgia, starboarded and blew their signal of two whistles. It was then that the danger of collision WlU! first apparent to those on the Georgia, and they promptly reversed her engines full speed astern. The appellants contend that the direction ,of the cut into the tug's bow shows that the tug, at the time of collision, !had stopped, and that the Georgia was going ahead, and therefore had :not promptly reversed, but the direct proof is too strong to be overcome !by inferences drawn from the testimony on that subject. The immedi. :fI,te and primary cause of the collision was the imprudent speed of the Itug and her want of caution in rounding Town point so close to the wharves. The burden is upon her to establish some fault or neglect on the part of the Georgia. contributing to the disaster, and this, we fl.gree 'with the district court, the appellants have not succeeded in doing. The decree of the court below is affirmed, with interest and costs of the appeal to be paid by the appellants.

THE

LoUD

DORIS ECKHOFF.

'D. THE DORIS ECKHOFll'.

et aZ.

(O£rcuit Court of Appeals, Second Cwcuit. January 18,1899.)
CoLLISION-TUGS AND Tows-RESPONSIBILITY OP Tow.

A bark and a schooner were each on a hawser in tow of a tug in the East river. Each towhad her master and crew aboard, who, however were not taking charge of her navigation, but, on the contrary, were receiving and obeying orders from the . tugs, and each tow was following in thewako of her tug. Tile tugs, however, were not in the middle of· the East river, as required by statute, but were near the shore. The bark and the schqoner came in collision by reason of fault on 'thepartof the tugs, neither tihe bark nor schooner doing anything to contribute to the collision. Hllld, that the tows Were not. ohargeable with participation in the fault of the tugs in navigating in a forbidden part of the river. 89 Fed. Rep. 555, atlirmed.

TIm

DOBIS ECXHOll'J'.

135

In Admiralty.. Appeal from a decree of the circuit court of the United States for the southern district of New York, affirming pro forma a decree of the district court for said district, which held in fault both tugs and both tows for the collision described in the opibion. 32 Fed. Rep. 555. And see 41 Fed. Rep. 156. Both tows appealed to this court, the tugs not appealing. Reversed. George· A. Black, for libell1nts,appellants. Goodrich, Deady &; Goodrich, (William W Goodrich, of counsel,) for claimants, appellants. Before WALLACE and LACOMBE, Circuit Judges.
LACOMBE, Circuit JUdge. On the morning of March 8, 1886, about 10 o'clock, a collision occurred between the bark Doris Eckhoff, in tow of the tllg R. S. Carter, and the schooner C. R. Flint, in tow of the tug John Stevens. The damage to the Flint and cargo was about $12,000 to $13,000; to the Eckhoff, about $300. The Flint brought action against the bark and both tugs. The tugs were not attached, on account of their leaving thejurisdiction, and the marshal only seized the bark. On petition of the owners of the bark, the owners of the tugs Sherman and Hughes were made respondents, and brought into this action. These two were the joint owners of both tugs, and Sherman was master of the Stevens, and in charge of her navigation at the time of the collision. After the escape of the tugs from the jurisdiction, they were libeled in Brooklyn, and made default, but lienors for supplies intervened, and contested the priority of the liens, and libelants collected, after a long litigation, from the proceeds of the R. S. Carter, about 82,000. All claimed the benefit of the limitation of liability provided by section 4283, Rev. St. U. S. The day was fine, with but little wind. The tide was strong flood. The bark, in tow of the Carter, on a hawser of 40 fathoms, was going down in the eddy, close to the New York shore. The schooner, in tow of the Stevens, on a hawser of 40 fathoms, was going up the East river, about one third of the distance from the New York shore. The river makes a bend at Corlear's Hook, which may be roughly stated to extend from Grand street to Jackson street. On the flood tide there is an eddy which commences at Jackson street, and extends, in a V shape, up to Grand street ferry, where it is from 250 to 300 feet wide. The true tide, outside that, runs with great strength, four or five miles an hour, and is broken up into what some of the witnesses call "whirling pools" or eddies, which vary with different conditions of tide and wind, so as to render the navigation of this partof the river somewhat hazardous,a fact well known to navigators in these waters. The several expert witnesses for both sides testify that the safest course for a vessel coming down the river under these circumstances is to keep out in the middle of the river, so as to avoid striking this tide with the starboard bow. The Carter and her tow rounded the bend of the river, passing through the slack willer, and, as the bark reached the true tide, she took a rank .heer to starboard, and came into collision with the Flint. The district

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FEDERAL REPORTER,

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judge held alUour in fault, and the owners of the bark and of .the schooner have appealed. ,As the district judge held both tugs in fault, as neither of them has appealed, and as no one suggests that they were not in fault, that proposition may be accepted without any further oftheir navigation than such as maybe necessary to determine the question raised on this appeal. The answer of .the bark the schooner with fault, in that, seeing a collision imminent, 3he did .not port her wheel. We do not find in the evidence sufficient to sustain this charge. On the contrary, she did port her wheel, and thus endeavored, though unsuccessfully, to avoid collision. That she was not so far over towards mid-river as to be out of the way of the .Eckhoff was a consequence of the navigation of her tug. The district judge, however, held the schooner, because both tug and schooner. were not more than one third of the distance from the New York shore, instead of being in mid-river, as required by the state statute,(chapter 321, p. 450, Laws 1848,) in other words, because "she was navigating in an unlawful place." Her master and crew were ahoard. She was being moved through the harbor under the ordinary contract of towage, by which" the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the service, as they neither appoint the master of the tug, nor employ the crew, nor can they displace either one or the other. Their contract for the service, even though it was negotiated with the master of the tug, is, in legal contemplation, made with the owners of the vessel employed, and the master of the tug continues to be the agent of the owners of his vesseL" . Xhe Olarita, 23 Wall. 11. So far as the proper navigation of the tow itself is concerned, the law is abundantly settled that she is bound to follow the guidance of the tug, to keep in her wake, and conform to her directions. '!'he Margaret, 94 U. S. 494. This the schooner did. The district judge, however, held that the master and crew of the schooner were participating in the navigation, and in fault for not <:lQntrolling the movements of the tug to the extent of requiring her to proceed in mid-river, either by ordering her to do so, or by endeavoring to swing her over in that direction by altering the helm of the Flint, of the heading of the tug; that thete was "at least an acquiescence on the part of the master of the schooner in the illegal course taken by the tug;" and that as he was present, with his crew on board, i)teering after the tug, he must be held to have participated in the navigation on that course. We do not find that this proposition is supported by the authorities. The tug was, in fact, under the command and direction of her own master, and received no orders or directions from those on board the Flint. Ori the contrary, those on the tow received and obeyed orders from the tug. Weare unable to distinguish this case from that of John Fraser, 21 How. 184. In that case the Fraser was in tow of the steamboat General Clinch, which navigated with her into such dangerous proximity to an anchored vessel that, upon casting off the hawser, the Fraser was unable to avoid collision. Although hll,d her master and crew on board, and was attending to

THE DORIS ECKHOFF.

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her own helm, she was not held to be participating in the navigation. The court said: .. According to the usage of trade at that port, she engaged a steamboat, well acquainted with the harbor and its usages, to bring her in. III ... * The General Clinch was ... III * under the command and direction of her own pilot. * * ... She could select her own course and her own rate of speed. ** * When fastened to the hawser, and in tow, the Fraser was controlled entirely by the steam tug, both as to her course and speed. The steamboat was not subject to the orders of the commander of the John Fraser. but was altogether under the control and direction of her own commander. ... ... ... The Fraser could do nothing more than watch the motions of the steamboat. and use her own rudder. so as to keep as nearly as might be in the wake of the tug to which she waA attached." -And held that the collision was not caused by any fault or negligence on the part of the Fraser, and that she was not answerable for the consequences of the improper navigation of the Clinch. We do not find any qualification of the rule laid down in this case in any sUbsequent cision. In Sturgis v. Boyer, 24 How. 110, the vessel in tow had on board only her mate and a gang of stevedores, and was held not in fault for 'iLcollision. The court said: "Cases arise undoubtedly when both the tow and the tug are jointly liable for the consequences of a collision, as when those in charge of the respective vessels joititly participate in their control and management, and the mastersor crews of both vessels are either deficient in skill, omit to take due care. or are guilty of negligence in their navigation. Other cases may well be imagined when the tow alone would be responsible; as when the tug is employed by the master or owners of the tow as the mere motive power to propel their vessels from one point to another, and both vessels are exclusively under the control, direction, and management of the master and crew of the tow. '" .... >I< But whenever the tug, under the charge of her own master and crew, and in the usual and ordinary course of such an employment, undertakes to transport another vessel, which for the time being has neither her master nor crew on board. from one point to another, over waters where such accessory motive power is necessary or usually employed, she must be held responsible for the proper navigationaf both vessels; and third personsstiffering damagethrollgh the fault of those in charge of the vessels must,. under such circumstances. look to the tug. her master or owners. '" '" ... Assuming that the tug is a suitable vessel, '" * *so that no degree of negligence can attach to the owners of the tow on the ground that the motive power employed by them was in an unseaworthy condition, the tow, under the circumstances supposed, is no more responsible for the consequences of a collision than so much freight; and it iii not pel'ceivad that it can make any difference in that behalf that a part, or even the Whole, of the officers and crew of the tow are on board,provided it clearly appears * * ... that from the nature of tbeundertaking. and the usual course of conducting it, the master and crew of the tow were not expected to participate in the naVigation of the vessel. and were not gUilty of any negligence or omission of duty by refraining from such participation." In The Mabey and Cooper, 14 Wall. 204, the tow was held in fault as well as the tug; but the ship in that case ordered the tug to take her to sea in an·unfavorable state of the wind and tide, and when navigation was dangerous, and the tug Gonsented to go to sea only upon the ship's

J'EDltRAL RE;PORTElf"

voL. 50.

upoqthe towing, and upon their. agreeing to take the risk of all accident, the collision being a direct consequence of this im· provident action, as t11e ship was .unexpectedly caught in an immense .field of floating ice, which, in spite of the power of the steam tug, swept her. against libelants'8hip. "Want of due care," said the court, "is shown in the faot that the ship went to sea ata moment when * * * it was not safe, in view or the condition of the weather ap.d tide." In TM Virginia, Ehrman, 97 U. S. 309,the tow was held in fault. not for navigating with the. tug in too close proximity to anchored dredges, but because she might.herself have prevented the collision by a timely starboarding of her own helm. In TM Civilta, 103 U. S. 699, 701, the ship had a pilot on board, and it was found as a fact that the tug was subject to his orders. He was in general charge of the navigation .of both vessels, and the court held the ship in fault because he faH,ed to give tl1e necessary directions to the tug to .,avoid approaching danger. See, also, The Connecticut, Id. 710; TM dlarita,'23 WalL 1; Jackson v. Easton, 7 Ben. 191; The Galileo, 28 Fed. Rep.1t69. We are therefore of the opinion that the Flint can no more be held responsible for faulty navigation, because she followed the course of the tug, and did not undertake to direct its IDovements, though that course lar, not through mid-river, but east of it, than was the John Fraser, because, with her master, helmsman, and crew on board, she followed without undertaking to direct the course of her tug, although that course led her into dangerous proximity with an anchored vessel; and, as no maneuver or omission of her own is shown to have contributed to the collision,' we find her free from fault. For the same reasons, we do not find the Doris Eckhoff in fault, because she followed the' course of the Carter, without undertaking to direct or control it, although the collision was undoubtedly caused by the fact that the course selected by the Carter was too close to the New York shore, where her tow was exposed to the effect of tidal currents, which might have been avoided had tug and tow been navigating in the middle The Doris Eckhoff p;ave no orders to the tug, but, on the of the contrary, receivel1 and obeyed orders from her. The further charge in the libel thatlthe Carter was not sufficiently powerful to handle the Eck· hoff is not borne out by the proof.. :But it is also contended that improper handling of her own 'helm co-operated with the set of the tide to cause the sheer which br01;lght her into collision with the Flint. The testimony .1;I}>on this branph of the case is conflicting. Two witnesses, who were on ao third tug (the Allen) going up ahead of the Stevens, testify that the rudder blade of the Eckhoff, at the time she took the sheer, was pointing 'to the port quarter, that is, that she was under a hard astarboard helm, and that it so continued' down to the very moment of collision., This last statelllent·is jnhetently improbable, and was not credited by the district judge, who finds that her helm was ported, but too late to ,be effectual to avoid the Flint. The bark was drawing 14 feet of wate,J1,llond they claim to have noticed the position of its blade at

, ' rilE ,DORIS ECKHOFF.

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a distance of 400 or 500 feet. The very extent of the sheer to port may have led them to infer that her helm must have been hard astarboard. Moreover, there is a suggestion of unfriendly feeling between one of them and the captain of the Doris Eckhoff. We are therefore inclined to give credence rather to the circumstantial statement of the captain and helmsman of the Eckhoff than to the evidence of these two independent witnesses. McNally v. Meyer, 5 Ben. 239; Steamship Co. v. Rumball, 21 How. 372. The weight of evidence satisfies us, as it did the district judge, that, after rounding the bend in the river, the Carter, of her own volition, and not through the effect of the cross tide, headed towards the Brooklyn shore, (which is a customary maneuver with vessels makmg the tum so close to the New York shore,) intending to pass just astern of the Flint, and that, noticing this maneuver, the Eckhoff starboarded to 10110w her, while herself still in the slack water. While the Carter, no sooner than she should have done, doubt, was in limIt. for thus with the Flint so near to herself and her tow, we are not satisfied that the Eckhoff was in fault for following her, in view of the well-settled rule which requires vessels in tow to conform their movements to those of their tugs. The Galileo, 28 Fed. Rep. 469. We are further satisfied that, at the moment her bow touched the flood tide, her wheel was heaved hard aport, and kept so, which was proper navigation. That such porting did not operate to counteract the set of the tide was due in part to the fact that it is so strong in that part of the river that, as one of the claimants' expert witnesses testified, it would carry her ovet towards Brooklyn three or four lengths, no matter how carefully her helm was attended to, but chiefly because, as the tug entered the true tide, its headway was checked, and the hawser slackened, depriving the bark of the assistance she would otherwise have had in checking her sheer. That she was in that part of the river was, as we have found, the fault of the Carter, with participation in which she is not chargeable; that she, followed the tug while in the slack water was her duty "nder the law; and that, as she ran into the true tide with its powerful cross set, she at once hard aported, as she should have done, we are satisfied from the proof. The other averments of limIt on the part of the Eckhoff, viz., that she was not properly manned, did not keep a proper lookout, did not anchor, and employed II tug not sufficiently powerful to tow, are not sustained by the proof. We therefore find the Doris Eckhoff free from fault. The decree of the circuit court is therefore reversed. and the (',sse remanded, with instructions to decree in accordance with the views expressed herein, with costs of the district court to the Flint against the respondents, and no costs of the circuit court or of this court to either appellant as against the other. It should be noted, further, that, as the owners of the Eckhoff filed no libel or cross libel demanding damages, ; none be awarded to them; and that as Sherman, who was part owner of the Stevens, was maskr of her at the·time of the collision, he is not entitled to any limitation of liability as respects her share of the loss.

REPORTER,

vol 50.

THE MARTHA BOGART. MANNING

et al. v.

THE MARTHA BOGART.

(Dtstrtct Oourt, S. D. Ne'W York. March 25,1892.)
COLLISION-STEAM AND SAIL MEETING-MISSING STAys-DRIFTING.

A tug with a tow on a hawser coming down the East river belowCorlear'sHook, and working over to the Brooklyn shore, ·saw ahead of her a schooner beatiug up stream, and moving towards the Brooklyn side. The tug thereupon gave several whistles, and, going close inshore, came to a stand-still along-side of some boats at the en.d of a pier. The schooner tacked about 100 feet ahead of the tug, and passed the tug safely, but, losing control of herself, drifted up some 300 feet further. and collided with the tow while lying at rest against another boat. along-side a wharf. HeZd, that the tug was not liable for the collision·

.In Admiralty Libel for collision. Carpenter &: Mosher, for libelants. Hyland &: Zabriskie, for claimant.
BROWN, District Judge. ia the afternoon of October 21,1891, as the libelants' schooner John Brill was beating up the East river in the floodtide against a northerly wind, she tacked about opposite Catherine street side, or. a little below, but came about so slowly ferry on that before filling away she drifted with the flood-tide at least 400 feet up to Adams street, where.her stern struck a barge in tow on a hawser from the Martha Bogart, and received some damage, for which this libel was filed . . The Bogart was coming down river, and passing Corlear's Hook in about nlid-river, worked over to the Brooklyn side to pass a tug with a couple of vessels along-side off Jay street, and then noticed the libelants' scll,ooner two or three blocks distant heading towards the Brooklyn shore. To avoid comingiu contact with the schooner, and. in order to go under her stern after she should have tacked from the Brooklyn shore, which she would very soon do, the tug gave several toots of her whistle, hauled in close to the Brooklyn docks, and came to a stand-still immediately along-side four coal-boats at the end of the Washington-Street pier, while the tow came to a stand-still against the end of a canal-boat projecting only 15 feet from the Adams-Street pier. The schooner tacked about 100 feet below and ahead of the tug, and in passing upwards in stays cleared the tug by about 15 feet; but losing control of herself, drifted some 300 feet further against the barge, which, as above stated, was at rest against a coal-boat and only 15 feet from the pier. The libelants'action is founded upon alleged fault of the tug in not avoiding the schooner. But the tug for the purpose of avoiding the schooner had stopped her navigation an,d come to a stand-still, in effect making a landing both for herself and for her tow along the ends of the piers., It would scarcely be contended that had the Adnms-Street pier been .the destination of the barge, the tug would have been in fault for stopping and landing her there precisely as was done in this case; or