The M. Moran , 251 F. 277 ( 1918 )

HOUGH, Circuit Judge

(after stating the facts as aboye). [1] That the course of the Oakwoods while in tow was considerably nearer Brooklyn than that of the Moran is admitted, and that the tug pulling the schooner traveled much faster than the heavy tow of the Moran is proven. The two tugs bore to each other the relation of steam to steam, and while in tow the Oakwoods had no claim whatever to the superior rights of a sailing vessel.

[2] Therefore the crucial question in this case is: Where was the Moran and her tow, and what were they doing, when the Oakwoods cast off and began to sail? On this point there is a flat contradiction in the evidence; the schooner maintaining that the Moran was 1,000 feet astern at the time, and the Moran that the Oakwoods began to sail at a point 400 or 50Ó feet to the port or Brooklyn side of the tow and while the tug master was in the act of lengthening hawser. We resolve this contest by consideration of some matters either admitted or definitely found by the trial judge.

Confessedly there was a time when the Oakwoods on her port tack was heading for the Moran’s hawser; she declares that she came about to avoid fouling that hawser, yet after so doing she admittedly struck the starboard scow with her port how. This difficult, if not impossible, performance is sought to be accounted for by saying that the scows sheered toward Brooklyn, so as to present the one to starboard to the swinging schooner. If this happened, it could only have occurred by the Oakwoods tacking directly in front of the scows. But the lower court found that the Moran let her steel hawser run out and sink, and the Oakwoods passed entirely over it. We see no reason to doubt this finding, and it follows therefrom that whatever danger the schooner apprehended from the hawser was avoided by the skillful action of the Moran’s master, and the Oakwoods had no excuse for going about where she did and failing to beat out her tack.

The direct evidence as to the respective positions of Moran and schooner, when the latter cast off, inclines us to adopt the former’s versión; but when it is observed that the charge against the Moran is not only of gross, but silly negligence, and that the reason for coming about assigned hy the Oakwoods is taken away, by the finding of the trial court, we find the fact to be that the Oakwoods began to sail, with the Moran lengthening hawsers about 500 feet away. Under such circumstances the schooner must show some justification for crossing or approaching the Moran’s hawser. We find none; there was plenty of room for her on the Brooklyn side of the Moran, nor was she bound to go off on a port tack. So far from the Moran creating the situation of danger, we find that she was executing a lawful maneuver when the Oakwoods cast off, and the latter created her own danger by unnecessarily interfering with said maneuver. A sailing vessel’s privilege does not extend to being towed close to a tug lengthening hawser, then resuming the privileged role, and complaining because the maneuver she could plainly see interfered with, not what she had to do, but what she preferred doing.

Decree reversed, and case remanded, with directions to dismiss libel, with costs in both courts.