THE SHACKAMAXON.

75

Elizabeth. His bow would, indeed, have swung somewhat to "tarboard in backing; but all the evidence shows that the Mascot was moving very slowly, and I do not credit the contention that backing in such a situation by the Mascot would have caused her to.swing so rapidly that her bows would have struck the Elizabeth before she had got away, had she been as much as 25 feet distant from the Elizabeth. I must hold the Mascot, therefore, liable, both for her unnecessary near approach to the Elizabeth and for not doing what she mIght have done to prevent the collision. An order of reference may be taken if the damage is not agreed upon.

Alexander & Ash, for appellant Hyland & Zabriskie, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. WALLACE, Circuit Jndge. This case turns wholly upon questions of fact, and we are unable to agree with the learned district judge in his view of the facts. Weare unable to discover in the evidence anything which indicates a want of vigilance or prudent navigation on the part of the Mascot. She was proceeding with- a boat in tow lashed on her port side, very slowly approaching the drawbridge, at a safe distance from the dock where the libelant's canal boat was unloading, and at a safe distance from the canal boat, when, owing to an unforeseen, sudden, and unnecessary sheer of an overtaking vessel on her port side, her tow was violently struck, and she was shoved to the starboard, and brought in con· tact with the libelant's boat. Undoubtedly, she could have taken a course originally further out in the channel, and further away from the dock; but the course she did take was the usual one, and the distance from the dock the usual distance for vessels ap· proaching the draw as she was. She was not bound to anticipate any such occurrence as took place. The sole cause of the acci· dent was the negligence of another vessel. The decree is reversed, and the cause remitted to the district court, with instructions to dis· miss the libel, with costs of that court and of this appeal.

THE SHACKAMAXON. THE CITY OF COLUMBIA. STARIN'S CITY, RIVER & HARBOR TRANSP. CO. v. OLD DOMINION STEAMSHIP CO. STARIN v. SAME. (CircuIt Court of Appeals, Second Circuit. February 14, 1895.) Nos. 63 and 64.
COLLIBION BETWEEN STEAMERB-CROSSING COURSES.

A ferryboat in New York harbor, crossing from Ellis Island to the barge office, east of the Battery, and a steamship coming up from sea.. discovered each other when about half a mlle apart The steamship blew one whistle, and ported her wheel, and on seeing that the ferryboat did not reply, or change her course or speed, stopped and reversed her engines; but the vessels collided, the steamship striking the starboard side of the ferryboat abaft the wheel. Held that, as the vessels were on crossing COUl'lle8

76.

FEDERAL REPORTER,

vol. 66.

':Vhen they discovered each other, the ferryboat tben having the other on the starboard bow, and failing afterwards to pay any attention to her movements, was solely in fault, the steamsbip baving done all in her power to avoid collision after having to suppose that the ferryboat would not avoid ber.

Appeals from the District Court of the United States for the Eastern District of New York. These were libels for a collision between the steamship City of Columbia and the steam ferryboat Shackamaxon,-the first by the Old Dominion Steamship Company, owner of the steamship, against the ferryboat (Starin's City, River & Harbor Transportation Company, claimant); the second by John H. Starin, ow'ner of the ferryboat, against the steamship (the Old Dominion Steamship Company, claimant). The district court found the ferryboat in fault, and rendered a decree against her on the first libel, and dismissed the second libel. The claimant and owner of the ferryboat appealed.
At tbe time of tbe collision, the weather was clear. It was daylight, and the tide was fioJJd. The steamship had come in from sea, on one of her regular trips from Norfolk, Va., and was proceeding up the bay, at a speed of about 12 miles an hour, to her pier, at the foot of Beach street, New York City. The ferryboat was on one of her regular trips from Ellis Island to the barge office at the Battery. After leaving her slip, on the southerly side of the island, and passing to the southeast, beyond the easterly line of the anchorage grounds, her general course was about east. As she came out from among the vessels anchored off the island, she was discovered by the steamship, which was coming up the channel, and then half a mile below. Tbe steamshiP blew a signal of one whistle, and ported her wheel. The ferryboat did not answer the signal, and kept on her course, at full speed. Thereupon, the steamship's engines were stopped and reversed, but the vessels came together, the stem of the steamship striking the ferryboat on her starboard side, abaft the wheel, and both were damaged. The steamship claimed that it was tbe duty of tbe ferryboat to keep out of tbe way. and that she failed in this duty, by reason of her omission to keep a proper lookout. 'l'he ferryboat claimed that tbe steamship was an' overtaking vessel, and was bound, tberefore, to avoid tbe ferryboat. Tbe opinion rendered on the hearing in the district court was as follows (Benedict, District Judge.): "In my opinion, the coIllsion between the steamship City of Columbia and the ferryboat Shackamaxon, which gave rise to these actiollil, was caused by the neglect of tbose on board tbe Sbackamaxon to observe tbe course of the City of Columbia as she came up the bay. They acted on the assumption that the City of Columbia was continuing on a course which would carry her under their stern, when, if they had given proper attention, they would have observed that the City of Columbia had hauled back into the stream, and would have avoided her. For this neglect the ferryboat Shackamaxon must be' held liable in the first action, and the libel in the second action must be dismissed, with costs."

Goodrich, Deady & Goodrich, for appellants. Frank D. Sturges, for appellee. Before WALLACE, LACOMBE, and SHIP1I1:AN, Circuit Judges. PER CURIAM. The decrees of the district court in these causes, adjudging the Shackamaxon solely in fault for the collision, ap: parently proceeded upon the ground that the courses on which the vessels were proceeding when they discovered one another, and were about half a mile apart, were crossing courses, and the ShackamaXOll had Columbia on hersta,rboard bow, and that from

THE LORD O'NEILL.

77

that time the Ghackamaxon failed to pay any attention to the movements of the Columbia, and wholly disregarded her obligation to avoid her. There is nothing in the record which warrants us in disturbing this conclusion. The evidence is that the Columbia did all in her power to avoid collision after she had sufficient rea· Bon to suppose that the Shackamaxon would not fulfill the ob· ligation resting upon her. The decrees are affirmed, with interest to the appellee, and costs of the district court and of this court, with instructions to the district court accordingly.
THE LORD O'NEILL. THE PEERLESS v. EASTON & McMAHON TRANSP. CO. et aL (Olrcuit Oourt ot Appeals, Fourth Oircuit. February 5, 1895.)
No. 101.

CoLLISION-RESPONSIllILITY OF VESSEL IN GREATER FAULT.

The tug P. was proceeding up Chesapeake Bay with tour barges In tow. The night was dark but clear, and all the lights ot tug and tow were burning brightly. The steamship L., which was proceeding down the bay at full speed, at a distance of nearly or quite halt a mile to the westward of the tug, when nearly abreast ot the tug, SUddenly, and without apparent reason, changed her course, and ran into and sank the first barge. Before the steamer's change ot course there was no reason to apprehend a collision, and, after such change, there was no way ot avoiding it. The tug, on observing the steamer's change of course, sounded a danger signal. The only fault attributed to the tug was her failure to give the passing signal, which her captain testified he omitted because he did not think the steamer was within halt a mile ot him. Held, that the gross and culpable negligence of the steamer was the prOXimate cause ot the injury, and that she should be charged with the whole damage, the omission of the tug to give the passing signal being so slight a fault, under the circumstances, and contributing so little to the disaster, as not to be entitled to consideration.

Appeal from the District Court of the United States for the District of Maryland. This was a libel by the Easton & McMahon Transportation Com· pany against the steamship Lord O'Neill and the steam tug Peerless, to recover for the loss of libellant's barge. The district court found both vessels in fault, and ordered the damages to be divided. The claimants of the Peerless appeal. Robert H. Smith, for appellant. Henry Stockbridge, Jr., for Easton & McMahon Transp. Co. J. Wilson Leakin, for the Lord O'Neill. Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, Distriot Judge. BRAWLEY, District Judge. The steam tug Peerless, having In tow four barges laden with coal, was proceeding up the Ohesapeake Bay on the night of the 6th of July, 1893, when at a point abreast -of the mouth of the Potomac river, at about half past 9 o'clock, the British steamship Lord O'Neill, going down the bay, col·