The Transfer No. 4

• Decision Date: 19 April 1894
• Docket Number: 92.,61
• Citation: 61 F. 364
• Court: U.S. Court of Appeals — Second Circuit
• Parties: THE TRANSFER NO. 4 and THE CAR FLOAT NO. 16. v. NEW YORK, N.H. & H.R. CO. et al. McCULLOUGH NEW YORK & N. STEAMBOAT CO. v. THE TRANSFER NO. 4 et al.

61 F. 364

THE TRANSFER NO. 4 and THE CAR FLOAT NO. 16.

McCULLOUGH v. NEW YORK, N.H. & H.R. CO. et al.

NEW YORK & N. STEAMBOAT CO. v. THE TRANSFER NO. 4 et al.

Nos. 61, 92.

United States Court of Appeals, Second Circuit.

April 19, 1894

Josiah A. Hyland, for appellant McCullough.

Wheeler H. Peckham, for appellant New York, N.H. & H.R. Co.

Frank D. Sturges, for appellee New York & N. Steamboat Co.

Before WALLACE and LACOMBE, Circuit Judges.

LACOMBE Circuit Judge.

About 3:30 a.m. of March 30, 1893, the City of Norwalk, a steamboat belonging to the New York & Norwalk Steamboat Company, came into collision with car float No. 16, in tow of the tug Transfer No. 4, both belonging to the New York, New Haven &amp Hartford Railroad Company in the East river, just above Blackwell's island. The Norwalk sustained damages, and Patrick McCullough, her engineer, lost his life. The owners of the Norwalk libeled the tug and car float. The district judge held both tug and steamboat in fault, and divided the damages. From such decree the railroad company appealed. 55 F. 98. McCullough's administratrix sued the owners of both boats, alleging a joint wrong. The court below found both boats in fault, and the deceased free from contributory negligence; it assessed the damages at the statutory amount ($5,000), and condemned the owners of the tug to pay one-half, absolving the owners of the City of Norwalk from payment, on the ground that the intestate was an employee and could not recover for negligence of a fellow servant. The railroad company and the administratrix (libelant) both appealed.

The case between the owners of the two boats may be first considered. At the time of the collision the weather was fair; the night starlight, but dark; the tide was ebb, and the current about four knots. The City of Norwalk came down the river at a speed of about 8 knots (making about 12 by land), and rounded Hallett's point, where there is a sharp bend. She was bound for New York, and from Hallett's point could have proceeded either down the westerly channel, between Blackwell's Island and the New York shore, or down the easterly channel, between that island and the Long Island shore. It was her intention to pursue the former course, which was her usual one, although sometimes when she had freight for points on the east shore, she took the easterly channel. The tug, with the car float lashed to her starboard side, came slowly against the tide, through the channel to the east of Blackwell's Island, bound for the New Haven docks in the Harlem river. From the island she might either have proceeded in an eddy along the Astoria shore, passing between Hallett's point and Flood Rock and thence northerly of Flood Rock and Mill Rock, or, as she cleared the island, she might have struck across to the New York shore, keeping to the southerly of the two rocks above mentioned, and so on, between Mill Rock and the New York shore, into Harlem river. Sometimes she took one of these courses, sometimes the other, it being her intention on the night of the collision to take the latter. All lights were properly set and burning. The story of the City of Norwalk is as follows: Her master was at the wheel; the mate in the pilot house on lookout. She rounded Hallett's point on a course to pass within 100 feet of Flood Rock on its south side, and, when about 'on the upper end of Flood Rock,' saw the red light and range lights on the tug and the bow light of the float bearing on the steamboat's port bow, and about a quarter of a mile distant. The master of the City of Norwalk supposed the tug was on a course towards the eddy on the Astoria shore, to take advantage of that eddy. The steamboat proceeded on at the same speed in order to keep her under control, and when past Flood Rock, and heading to go down the channel between Blackwell's Island and New York, the green light of the tug suddenly came into view, she having starboarded her helm; and the tide, as she swung to port, shot her rapidly towards the steamboat. Immediately upon the green light of the tug coming into view, a signal of one whistle was given by the steamboat, her helm was put hard a-port, and she continued on in the hope of crossing the tug's bow, it being impossible to stop her, and thus prevent a collision. No answer was given to this signal by the tug, and she also apparently continued on, so that the vessels came together with great force, the port corner of the float (which projected beyond the tug) striking the port side of the steamboat a little aft her stem. The claim of the Transfer is as follows: When near Gibb's point, which is in the channel east of Blackwell's Island, she starboarded her helm so as to stem the true tide and pass close to the point of the island, within 100 feet of the shore, and from there to the Harlem river; that when near Blackwell's Island light she for the first time saw the Norwalk near Flood Rock, showing a green light; that the boats were then green to green, and that suddenly, when almost abreast of the Transfer to the east, the Norwalk showed her red light, and tried...