Transfer No. 5. Norwich & N. Y. Propeller Co. v. 5, 49 F. 398 (N.Y. 1892)

Brown, District Judge.

About 3 o’clock in the morning of June 9, 1891, the tide being ebb, as the steam-tug Transfer No. 5 was proceeding eastward through the easterly channel of Hell Gate near the Astoria shore, having a car-float loaded with cars lashed to her port side and

projecting ahead of her about 75 feet, the float came in collision with the libelant’s steam-propeller Delaware coming westward, striking the latter upon her starboard side about 20 feet from her stem, and inflicting considerable damage, to recover which the above libel was filed.

There is some dispute as to the precise place of the collision; otherwise, there is less contradiction than usual in collision cases. I find the following facts:

(1) The collision was about abreast of, and not below, the small point on which a derrick was located, about half-way between the Astoria ferry and Hallet’s Point light, and was within, or along, the margin of the eddy, which upon the ebb-tide makes up along the Astoria shore, extending out from 50 to 150 feet from the shore.

(2) The tug had. come up through the southerly channel by Blackwell’s island and had passed quite near the Astoria ferry for the evident purpose of obtaining the benefit of the slack-water or upward current of the eddy near that shore, instead of going out in the channel where the tide would he about four knots against her.

(3) The Delaware was a small steamer, about 126 feet long, and of 81 feet draught; she passed Negro point about two or three hundred feet from the shore, shaped her course nearly due west so as to pass about the same distauce irom Iiallet’s point, then swung to port to go down the easterly channel in her usual course at this stage of the tide, that is, about one-third the distance across to Mood rock, or about 200 or 250 feet from the Astoria shore. When she got straightened down the east channel so as to head for the Blackwell’s Island light, and being about abreast of Hallet’s point, or a little below it, she first saw the tug’s green light, and her vertical lights indicating a tow, a little on the Delaware’s port bow, and estimated their position to be a little below the Astoria ferry within 150 feet of the shore, and judged them to he bound for the Ilaiiem river by way of Horn’s hook and designing to cross the course of the Delaware to the westward. ' On this assumption the Delaware gave a signal of two whistles, and without waiting for any answer starboarded her wheel so as to haul a point to port, and head a point towards the Astoria shore, which brought the tug’s green light a little on the Delaware’s starboard bow; she received no immediate answer, and heard no whistle from the tug, until she had got about 700 feet below Hallot’s point, when she did hear a whistle or whistles from the tug, then about 200 feet distant, and replied with two whistles, put her helm hard a-starboard, and reversed; but the vessels were then too near to avoid collision.

(4) At collision the tug and the Delaware were both heading somewhat towards the Astoria shore; the Delaware’s bow was within the eddy so as to be carried round to the northward towards Hallet’s point, and in that direction she rounded and afterwards went down river by the northerly, or main ship channel.

(5) The red light of the Delaware was seen from the tug a little on her starboard bow before the former had rounded Hallet’s point. The tug thereupon gave her a signal of one whistle, which was not heard by the

Delaware; but after an interval somewhat longer than usual for answering, a signal of two whistles was heard from the Delaware, which was understood by the tug as an answer, and which I find to be the signal given by her when abreast of Hallet’s point or a little below it. The tug, which had previously reduced her speed to slow, thereupon reversed until collision, having given several whistles in the mean time.

(6) When the Delaware gave her first signal of two whistles, the tug was not below or abreast of Astoria ferry, but within 100 or 200 feet of the small point on which-the derrick is situated, and within the eddy, or the margin of the eddy; she was then heading a trifle off the Astoria shore, just enough to clear the derrick point, and consequently showed her green light to the Delaware; and afterwards, in order to keep close-to the shore and in the eddy, she hauled to starboard under a port wheel so as to show her red light shortly before the collision.

Upon these facts I find the Delaware to be alone in fault for the collision. The Delaware had no right to assume that the tug was going across to Horn’s hook. Siie was not at all in the position in which the Delaware’s witnesses now say thejr thought her to be, but far nearer to the Delaware. In the situation where the tug was, so near the Astoria shore and so much above the Astoria ferry, she could not rationally be-supposed to intend going by Horn’s hook; and the mere fact that she showed her green light was no indication whatever that she was designing to go that way, and was in no way incompatible with her design to pursue- her usual course towards the Harlem river by way of the east channel. In acting on the contrary assumption, if such is the fact, the Delaware acted at her own risk. The tug was so near the shore that it was her right and duty to keep there on the starboard side. It was not to be supposed that the Delaware would attempt to run in between Irel- and the shore. Even under the common rules, the Delaware, having the tug on her port hand and seeing the tug’s green light, but very near the shore, was, required to “keep her course.” Had she done so, there-would have been no collision. The collision was caused solely by her' change of course to port and running across the tug’s bows and into her water under a signal of two whistles without waiting for any answer or permission to do so, and upon the false assumption which she made at her; own risk.

The tug is without fault, because as soon as apprised of the Delaware’s move to port under her starboard wheel, she reversed; and she could not otherwise have avoided collision.