The R. J. Moran , 9 F.2d 617 ( 1925 )

HOUGH, Circuit Judge

(after stating the facts as above).

As soon as she entered the broader waters of the East River, Moran intended to swing the schooner and tow her in the usual manner on a hawser astern. The No. 2, being bound to a wharf at the very mouth of the creek, intended to swing her tow so that she could land against the flood tide. This was clearly a case of special circumstances, within The John Rugge, 234 F. 861, 148 C. C. A. 459, in that neither of the tugs, the only vessels concerned having motive power, was navigating on a steady course. '

Further it .was obvious that a tow of six boats on the usual short hawser (20 fathoms) of the East River would be temporarily beyond close control while the swing was being accomplished, for the moment No. 2 stopped or turned toward Dupont street the tow would swing upstream with the flood tide, exactly as it did. It is not clear just how far away the Moran, with her schooner, was when No. 2 began this maneuver; but it is clear that neither tug observed what the other was doing until collision was inevitable. •Yet it must have been obvious to the Moran that she could not perform the maneuver of reversing her schooner" and getting it on a hawser, unless she had plenty of room, and equally obvious to No. 2 that her unwieldy tow, while swinging, would occupy the whole of the mouth of Newton creek.

The principal contest of testimony was whether the No. 2 changed her course toward the Long Island shore, or merely stopped when she permitted her tow to swing up with the tide. It makes no difference whether she made the change of course or not. Both'tug-masters permitted their almost equally clumsy charges to get so near each other without exchanging any signals or calling attention to themselves in any way as to produce a situation of danger. This'is not technically a case of absence of lookout, but it is plainly one of lack of vigilance, and we agree with the court below that both tugs were at fault.

On this' appeal it is sought to attribute the actual sinking of the coal-laden barge to the subsequent negligence of No. 2 in failing either to apply a siphon, or to beach the barge, instead of letting her sink at the end of Dupont Street pier. But the contact of schooner and barge was very severe; the whole stern of the schooner hit the barge amidships, and according to the evidence of the bargemaster the instant effect was to list him “all the way to the port side when she struck,” so that he could at once see the water coming in. Nor did that bargemaster attribute any fault to No. 2 for not beaching him, for, when he was asked whether any attempt so to do had been made, he answered, “No, sir; he couldn’t have had time;” and, further, that when the barge got to Dupont Street pier'“the port'side was under water.”

Under such circumstances, we think it mere speculation to seek for further fault, when both tugs are for lack of attention to each other in very narrow waters convicted of lack of vigilance.

Decrees affirmed, with one bill of costs in this court. .