Cleary , 235 F. 107 ( 1916 )

LEARNED HAND, District Judge.

The important time in." this case was after the Transfer had cleared the Terry and caught sight of the Cleary below, her and on her starboard bow, up to which time the Transfer’s navigation could have no relation to the Cleary. Pier subsequent conduct must be judged by what appeared to her at that time. The District Judge has found that the case was not one of overtaking vessels, and we agree with him. So far as the Transfer could see, the case was one of special circumstances, and we find no fault in the navigation of the Transfer after that time. Her only possible fault was her position. As the District Judge has heard all the witnesses, and among them all has chosen Lundquist, the master of the Transfer, for his confidence, we should be governed by his finding, and we should therefore accept the finding that the collision occurred about 300 feet off the pier ends. There is, it is true, considerable difficulty in seeing just how the Cleary, which had been continually backing, could get the bow of the barge so far from the pier ends, especially as the witnesses assert that the tide runs true at that point. It is, moreover, notorious that the estimate of distances, particularly at night, is most unreliable. We therefore have considerable doubt as to just where the accident was; but, as it makes no difference in our judgment, we shall accept the finding of the District Court as above stated, particularly as the barge herself says that her bow was about 150 feet from the pier ends.

The District Court has found, and we accept this finding also, that the Transfer had met an upbound tow and had ported to avoid it; but we place; the fault in her porting so far towards the New York shore. If the upbound tow was in the middle of the river, the Transfer had a channel of 750 feet, and she was bound to keep nearer tot the middle of the stream. The mere occurrence of the collision in our judgment proves this, because the Cleary was at the very pier end when she began to back, and all she did was to back, trying to get out of the way. It may be that her judgment was bad under the circumstances, but it seems to us that a car float tow in any event comes too dose to the pier ends if she collides with another tow itself at¡ the very pier ends, which is doing, and has done, nothing but its best to keep out of the way. It was the purpose of the statute to keep such vessels out of the way of shipping, navigating in and out of slips, and this court has already held it a fault to come within even 400 feet of the pier ends. The Amos C. Barstow, 66 Fed. 366, 13 C. C. A. 515.

The decree is reversed, and a decree will be entered for the libel-ant against the Transfer, with costs, and for the Cleary, with costs against the Transfer.