The appellant, Thomas McNally, filed his libel in a cause of collision, civil and maritime, against the steam-tug L. P. Dayton, the steam-tug James Bowen, and the float or scow called 'No. 4,' in the district court of the United States for the Southern district of New York. The secfore article of the libel sets out the cause of action as follows: '(2) Heretofore, to-wit, on the fourteenth day February, 1879, the boat or barge Centennial, of the burden of about 300 tons, of which boat your libelant was master, was taken in tow by the steam-tug L. P. Dayton at the pier foot of Fifty-ninth street, New York harbor, to be towed by the said
tug to the Erie basin, near Atlantic docks, New York harbor. She was taken at or about five and one-half o'clock in the afternoon of that day. She was loaded with a valuable cargo, to-wit, six thousand four hundred and fifty bushels, or thereabouts, of red wheat. She was then staunch and seaworthy. When the L. P. Dayton left Fifty-ninth street pier she had in tow four boats or barges, of which the boat Centennial was one. These were placed two on the port side of the said tug, and two on her starboard side. The Centennial was the inside starboard boat; that is, the one lashed to the starboard side of the tug Dayton. The Centennial was a boat one hundred and three feet in length, and when fastened to the tug, as aforesaid, her bow projected some twenty feet beyond the bow of the said steam-tug. The evening was quite clear and star-lit. The tug and tow being made up as aforesaid, proceeded down the river, the tide being ebb, until about opposite Eagle pier, Hoboken, when the tug put into shore, and there left one of the boats that had been fastened to her port side. After the port boat had been left at the Eagle pier as aforesaid, the tug, with the remaining three boats, resumed her course, proceeding down the river. When about opposite Pier 1, North river, and when about three hundred yards from the New York shore, the said boat Centennial was run into by the float or scow called 'Number Four,' which was then in tow of the steam-tug James Bowen, and received such injuries that she very soon thereafter sunk with her cargo. At the time of the collision darkness had set in, and your libelant is unable to speak of his own knowledge with entire accuracy of the movements of the vessels aforesaid. But he is informed and believes the truth to be as follows, that is to say: Before the collision aforesaid the steam-tug James Bowen, having the float or scow Number Four lashed to her port side, was proceeding from some point on the East river to the Long dock, Jersey City. She had rounded the Battery, and at the time of the collision was on a course opposite, or nearly opposite, the course then being taken by the tug L. P. Dayton
and her tow. Through the carelessness of both the persons in charge of the L. P. Dayton and of the James Bowen and the scow, the said tows wee not kept clear of each other, though there was ample space of water in which to have done so, but were so negligently handled that the float or scow aforesaid bore right down on and struck full on her stem the boat Centennial, staving in her whole bow, and causing her to sink in about ten minutes. Your libelant and his son were on board the Centennial at the time of the collision; but it was not possible for them to do anything to prevent the same. The Centennial was entirely under the control and subject to the direction of the tug-boat L. P. Dayton, having neither propelling nor steering power of her own. Your libelant alleges that both the steam-tugs aforesaid were in fault in the following respects: First. Neither tug-boat observed the signals of the other, the observation of which might have and would have prevented danger. Second. Neither tug-boat made use of the proper signals for avoiding a collision in time to avoid the same. Third. The tug-boat Bowen did not reverse her movement, or did not do so in time to prevent a collision. Fourth. Neither tug-boat was provided with a suitable and competent watch at and before the time of the collision. Fifth. The tug-boat James Bowen improperly changed her course before the collision, having put her wheel to port, and made an effort, apparently, to pass under the bows of the Dayton and her tow. But your libelant alleges, in general, negligence against both the said tugs, and requires them to make definite answer of the facts pertinent to the collision, which will clearly show either that both were equally to blame, or to blame in unequal degree, though neither entirely free from blame; but, for the reasons above mentioned, your libelant's boat, the Centennial, was in nowise to blame or responsible for the collision aforesaid.' And also alleged negligence against the steam-tugs, in addition, as follows:
'That on the night and at the time of the collision the tide was a strong ebb; that the tug Bowen and her tow were proceeding against the tide; and that it was negligence in her not to have kept more to the westward than she did, and thereby have avoided the tug Dayton and her tow, as might easily have been done had the proper care been used in observing the Dayton's lights and signals. And, further, that the said tug Bowen and her tow kept too near the New York shore in rounding the Battery and making up the North river; that the tug Bowen was also negligent in respect of not having a proper light set on her port side, or in permitting the same to be covered and obscured by certain cars or carriages at that time on the deck of the float, which was on her port side; that the tug Bowen was also negligent in not answering the signals of the tug Dayton when they were approaching each other; that the tug Dayton was at fault in proceeding at too great a speed, the tide being a strong ebb, and the wind north-west; that the tug Dayton was likewise negligent in not having a proper light set on the extreme starboard and forward end of her tow; that the person in charge of the wheel of the Dayton at the time of and before the collision was unfit for such duty, being a man of near and imperfect sight, and generally incompetent; that the tug Dayton, after twice blowing her whistle, did not keep on her course, but ported her wheel and went to starboard, showing her red light to the Bowen and the float before reversing and attempting to go back; that neither the Dayton nor the Bowen had a watchman or look out on her forward deck.'
Hugh J. Jewett, receiver of the Erie Railway Company, claimant of the float or scow called 'No. 4,' filed his answer on her behalf, in response to the charges of the libel. It was admitted, however, that no cause of action appeared
against the scow 'No. 4,' both in the courts below and upon the argument in this court. It is therefore not necessary to consider the answer filed on its behalf.
Daniel Shea intervened as owner of the tug James Bowen, and answered the charges of the libel as follows: ' Third. That this respondent has no knowledge of the matters contained in the second article of said libel preceding the allegation in the said article contained, to the effect that the boat Centennial was run into by the float or scow Number Four, and he therefore neither admits nor denies the same, but leaves the libelant to make such proof thereof as he may be advised; that so far as the allegations of the said article relate to the collision between the said boat Centennial and the float or scow called 'Number Four,' which occurred on the fourteenth day of February, 1879, and the causes thereof, this respondent, upon information and belief, denies the said allegations of said article, and each and every of them, except so far as the same are hereinafter expressly admitted. And this respondent, upon information and belief, says that the facts in respect to said collision, and the causes thereof, are as hereinafter stated, and not otherwise, that is to say: On the evening of the fourteenth day of February, 1879, at about half-past six o'clock, the said steam-tug James Bowen, at Williamsburg, in the waters of the East river, took in tow the said float or scow Number Four, the said float or scow being lashed to the port side of said tug James Bowen, and the said tug James Bowen, with the said float or scow in tow as aforesaid, proceeded down the East river, bound for Long dock, Jersey City; that the tide was ebb, the wind moderate from north-west; that the said tug James Bowen and the said float or scow were both staunch, properly manned and equipped; that the said tug was provided with a bright head-light on the forward end of her house, and with red and green lights on her port and starboard sides, respectively, and with two white lights on the flag-staff aft, and that the said float was provided with a white head-light near the bow, all of said lights being properly placed and burning brightly; that the said tug James Bowen was provided with a compe-
tent pilot and lookout, properly placed on the tug, and that a lookout was also stationed forward on the roof of the float or scow; that the said tug James Bowen, with the said float or scow in tow as aforesaid, proceeded down the East river to the Batterv, and on rounding the Battery into the North river encountered considerable ice, and in consequence was running very slow; that after getting clear of the ice the said tug, with the said scow in tow as aforesaid, was headed for the Jersey City abattoir. At this time there was outside of the said float, and about one hundred feet distant from the port side thereof, the steam-tug W. H. Vanderbilt, with two barges in tow astern on a hawser; that said tug W. H. Vanderbilt, with her said tow, was proceeding in the same direction and at a little faster rate of speed than the James Bowen; that after the said James Bowen, with the said scow or...
