The Packer Scully v. New Jersey Lighterage Company

Pursuant to the act of February 16, 1875, (18 St. 315,) the following facts were found by the circuit court:

'First. That on the 25th day of October, 1880, the libelant was the owner of the barge Atlanta, and was a common carrier of a cargo on said barge, as alleged in the libel.

'Second. That on that day, in the afternoon, a collision occurred between said barge and the barge Cross Creek No. 5, then in tow of the steam-tug Packer.

'Third. That the barge Atlanta and her cargo were on that day taken in tow by the steam-tug Wolverton at Roberts' stores in the East river, to be towed to the long dock, Jersey City, and were towed astern of said tug by a hawser of one hundred and fifty feet in length between the tug and barge.

'Fourth. That on that day the tug Packer was bound from the North river into the East river, having in tow on her port side the barge Cross Creek No. 5, loaded with about 450 tons of coal, the barge projecting beyond the bow of the tug.

'Fifth. As the Wolverton, with her tow, was crossing the mouth of the East river, the Packer, with her tow, was heading around the Battery into the East river, passing the New York shore opposite the barge office, nearly two hundred yards away.

'Sixth. That the tide in the East river was ebb, and at about full strength. The Wolverton and her tow were going with the tide about seven miles an hour, and the Packer and her tow were proceeding against the tide at a speed of about two miles an hour.

'Seventh. That the Packer and her tow had come so far around from the North river before seeing the Wolverton as to be in the ebb-tide coming out of the East river, and when she saw her was heading up against that tide, and was about 200 yards out from the shore opposite the barge office.

'Eighth. The vessels saw each other when about 500 yards apart, and at that time the course of the Wolverton was about N. W. by N., and the course of the Packer was E. by N., and as they approached each other the Packer had the Wolverton on her starboard bow and the Wolverton had the Packer on her port bow, the Wolverton being further out in the river from the New York shore than the Packer, and the vessels being upon crossing courses converging towards the New York shore.

'Ninth. As soon as the Packer saw the Wolverton she blew two blasts of her steam-whistle. She was then under a starboard wheel, and making in somewhat towards the end of the piers, but upon signaling the Wolverton she starboarded the wheel still more. The Wolverton made no reply to the Packer's signals, but kept on her course, without abating speed, until blew two more whistles, and reversed then blew two more whistles, and reversed her engines, and the Wolverton ported her wheel. The Wolverton passed the how of the Packer and her tow, but the libelant's barge was unable to do so, and her port side came into collision with the bow of the Packer's tow.

'Tenth. At the time the Wolverton ported her wheel danger of collision was imminent, and a collision seemed unavoidable.

'Eleventh. There was nothing in the river to interfere with the navigation of either vessel. The collision occurred about 400 or 500 feet off the ends of the piers and just below the slip of the South ferry.

'Twelfth. There was no local usage of navigation applicable to the situation of the vessels when they discovered each other.

'Thirteenth. That between the tide of the East river and the North river there is an eddy, which extends out about 400 feet from the barge office, and the Parker had passed through this eddy and reached the ebb tide, which struck on the port bow of her tow and swung the vessels still further off shore before her pilot saw the Wolverton.

'Fourteenth. To libelant's barge was in all respects properly navigated. By reason of the collision the barge and cargo sustained serious injury.'

The following conclusions of law are found:

'First. The two tugs being on crossing courses, it was the duty of the Packer, having the Wolverton on her starboard hand, to keep out of the way, and the duty of the Wolverton to keep her course.

'Second. It was the duty of the Packer to port her wheel, and stop and reverse her engine in time to avoid the collision.

'Third. The libelant is entitled to recover against the Packer the damages sustained by the collision.'

The course of the Wolverton, as stated in the eighth finding, was subsequently changed by the circuit judge from N. W. by N. to W. N. W.

From the decree entered upon this finding an appeal was taken by the owner of the Packer to this court.

E. D. McCarthy and De Lagnal Berier, for appellant.

R. D. Benedict, for appellee.

Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.