FEDERAL REPORTER.
from the mutual fault of both, and as a basis of their equal liability, as between themselves, in a court of admiralty, where, in such a case, the damages may be divided. But whether the former verdict be strictly conclusive or not, in a case of doubt upon such a question, I should hesitate to differ from the finding of the jury, where there is so much evidence to show faults on both sides. It follows that the libelants should have judgment against both defendants, with costs, with a decree in the form directed in The Alabama and The Gamecock, U. S. 695; The Civilta and The Restless, 108 U. S. 699.
THE COLtJMBIA.1 (Oireuit Oourt, E. lJ. New York. July 8, 1885.) COLLISION-TuG AN)) FERRy-BOAT CROSSING-RIGHT OF WAy-DuTY TO STOP 4ND BA,.CK-RULE OF ApPEAL.
A collision occurred at the South Ferry slip, New York city, )Jetween the ferry-boat C., on ope of her trips from Brooklyn to New York. and the tug B., which was coming mto the East river from the North river, having a bark in tow on a hawser. The collision occurred in the day-time, the weather clear, and the vessels were on crossing courses, the B. having the C. on her starboard hand. In the district court the tug was held entirely in fault iIj. attempting to cross the ferry-boat's bows when the latter had the right of way. Held, on appeal to this court, that the ferry-boat was also in fault in not stopping and backing when she saw that the tug was persisting in on, and did not respond affirmatively to' the ferry-boat's signal of one whIstle, and that there must be a decree apportioning the damages and the costs of the district court, and giving the tug the costs of the circuit court. See the opinion of the district court. The Oolumbia, 8 FED. REp. 716.
Admiralty Appeal. Owen ci: Gray and F. D. Sturge8, for the tug. B. D. Silliman and N. P. Schenck, for the ferry.boat. BLATCHFORD, Justice. It is contended for the Baxter that the evi. dence shows that the Baxter gave a signal of two whistles; that the Columbia answered by a signal of three whistles; that the Baxter then gave a signal of five or six sharp blasts, followed by a signal of two whistles; that the Columbia answered with a signal of three whistles; that the Baxter then gave a signal of two whistles; and that the Columbia answered by a signal of three whistles. This concurs substantially with the statement of the libel, that the Baxter gave a signal of two whistles; that the Columbia answered by a sig·' nal of three; that the Baxter then gave a signal of several sharp ahd distinct blasts, and then a signal of two whistles; and that the Columbia paid no attention to suoh signal, and, although it was repeatedly given, disregarded it and kept on. As the vessels approached each other, the Bax.ter had the Columbia on her starboard side, and ,1Beported by R.D.&.Wyllys Benedict, Esqs., of the New York bar.
· 'ft[ll: COLUMBa.
845
their courses were crossing. On the view that it thus became ,the duty of the Baxter to avoid the Columbia, the district judge held that the Baxter would have avoided the Columbia if she had stopped wheu she saw the approach of the Columbia; that the excuse made by the Baxter for not stopping, namely, that she could not do so without incurring the danger of being run over by her tow, was not satisfactory; and that she could have stopped, and even backed away, wit,hout being run over by her tow. For this fault,.among others, the Baxter was condemned. I concur in this view. Especially was it the duty of the Baxter to stop and back, if her signal of two whistles was not, when nrst given, answered affirmatively and promptly by the Columbia. For the Columbia it is contended that, before the Baxter gave any signal, the Columbia gave a signal of one whistle; that the Baxter made no response; that the Columbia then gave a signal of one whistle; that the Baxter did not at once reply, but kept on and then gave a signal of two whistles; and that the Columbia then gave a sigpltlof three whistles. The answer states ,that the ran about 100 yards after giving her first signal before she gave her second, and that not stop and till after the Baxter had given her . signal of two whistles. The district judge says in his opinion, (8 Fed. Rep. 716,) that no doubt the collision would have been avoided if the Columbia had been stopped' in time to permit the Baxter to pass; but that. as the Columbia had the right of way, she had a right to keep on. I cannot assent to this view. When the Columbia received n() response to her first signal of one whistle, she ought to have stopped and backed, instead of giving her second signal of one whistle. She saw that the Baxter was persisting in going on, and was not responding affirmatively by a signal of one whistle, and that there must be a {lollision if the Columbia also kept on. If it was the duty of the Baxtel' primarily to keep out of the way, and the correlative duty of the Columbia to keep her course, that duty was imposed on theOolumbia for the purpose of enabling the Baxter to keep out of the way. But it was not permissible for the Columbia to persist in going op,under the plea of keeping her course, when she saw that her signal was not affirmatively responded to by the Baxter. On the contrary, under rule 21 of section 4233, there then became risk of collision, and it was the duty of the Columbia to "slacken her speed; or, if necessary, stop and, reverse;" and, under rule 24, special circumstances existed which m.ade it necessary for the Columbia to stop,,,"in order to avoid immediate danger." The fault of the Baxter was no excuse for the ilJ,ult of the Columbia. The situation was pil;dn to the Columbia, and ahe was bound to deal with it as it existed, as it ought to have been. These principles are established by decisions of the supreme court. Ohamberlain v. Ward, 21 How. 548,567, 568; The Gray Eagle, 9 Wall. 505, 510; The Maria Martin, 12 Wall. 31, 47; The Ariadne, 13 Wall. 475, 479; TheJJayuga, 14 Wall. 270, 275, 276 j The ,pon·· ',' .,' I ',' .
.1
846 tinental, Id. 345, 359; The Sunnyside, 91 U. S. 208, 214, 2HS; The America, 92 U. S. 482, 438. It results from these views that there must be a decree holding both vessels in fault, and apportioning equally the damages to the Baxter between her and the Columbia, with a reference to ascertain those damages. The costs of both parties in the district court will be apportioned equally between the parties, and the libelants will recover their costs of this court·.
THE ALHAMBRA.· THE RHODE ISLAND. PaOVIDENOE
&
STONINGTON STEAM-SHIP
Co.
'D. THE ALHAMBB.&..
QUEBEO STEAM-Smp
t1. THE RHODE ISLAND.
(Di8tNct Oowrt, B. D. New York. December 9, 1885.) CoLLISION-Two STEAMERS-BUDDEN BHEAR-CONFLICTmG EVIDENCE AS TO LIGHTS AND BEARmGS CONSIDERED-NARRATIVE.
On the night of July 18, 1882, a collision occurred in the Sound between the steamer A. and the steam-boat R. I., the weather being clear, and both vessels seeing each other's lights at a great distance. The A.'s account of the collision was that while making a course E. by N., she sighted both the colored of the R. 1. about three-fourths of a point on her starboard bow, several JD.lles distant. That thereafter the red light of the R. I. was shut in. and her green light gradually drew to three or four points off the A.'s starboard bow, both vessels showing green to green, up to within a minute of the collision, when the R. 1. took a sheer to cross the bows of theA., which at once stopped and backed, but was unable to avoid a collision. The account given by the R. I. was that while heading W. t S. she saw the mast-head light of the A. a little on her port bow, and about four miles distant; that, shortly after, the red light of the A. came into view three-fourths of a point on her port bow, when the R. l.'s wheel was ported, and one whistle given, and her course changed to W. tN.; that she continued on that course, the A.'s red light being always on her port bow, and not observed to change much, till suddenly the A. was seen close at hand on the port beam, with her green light exposed; that the wheel of the R. I. was put hard a-port, but the collision followed immediately. Held, that these two narratives were irreconcilable; that whichever story be correct, it must be found to be in the main consistent with itself and with the undoubted courses of the steamers, which must be assumed to be as sworn to by each, up to within a few minutes of the collision; that an examination of the testimony of each, with a diagram of the respective courses, p'ositions, and bearings showed that the A.'s account was consistent and credIble, and the account of the R. 1. inconsistent with itself, and irreconcilable with the undoubted previous courses of each; that the sudden sheer just before the collision was made by the R. I., and was probably due to the fact, disclosed in the testimony of the pilot of the R. I., that he supposed the A.'s lights were the lights of a tow; that the A. did all that was possible to avoid the collision, and the libel against her shQuld consequently be dismissed, and the suit against the R. 1. sustained.
JReported by Edward G. Benedict, Esq., of the New York bar.