THE L. P. DAYTON. THE JAMES BOWEN. MCNALLY v. THE L. P. DAYTON and others.

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 competent 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 float in tow, had gotten into clear water, and was heading as last aforesaid, a boat was discovered by her pilot coming down the river with a tow, which subsequently turned out to be the L. P. Dayton; that at the time the said approaching tug and tow were discovered, the green light of the tug L. P. Dayton was visible, and she appeared to those in charge of and navigating the tug James Bowen, including the lookout on the float, to be going to the eastward, between the said James Bowen and the New York shore, which was then about three hundred yards distant. At a proper distance the pilot in charge of the James Bowen blew two blasts of his steam-whistle, to which the approaching tug L. P. Dayton responded with two blasts of her whistle, and the pilot in charge of the said James Bowen thereupon put his wheel to starboard, heading as close to the westward as could safely be done without danger of colliding with the tug W. H. Vanderbilt or the barges in tow thereof, which were, as before stated, on the port side of the said float, heading in the same direction; that notwithstanding the signal which had been given by the James Bowen, and which had been n swered by the L. P. Dayton, the pilot of the said L. P. Dayton, instead of keeping his course or putting his wheel to starboard so as to pass the said James Bowen on her starboard side, so changed his course as to shut out his green light, and bring his red light in view of those navigating the James Bowen; that thereupon, it being evident that the said tug L. P. Dayton could not cross the bow of the James Bowen and of the said float in two thereof without imminent danger of collision, the pilot in charge of the James Bowen immediately rang his bells to slow, stop, and back; that said signals were promptly answered by the engineer of the James Bowen, and that at the time of the collision the heading of the James Bowen, and of the float in tow thereof, was about stopped, and that those in charge of the said L. P. Dayton, and the canal-boats or barges in tow thereof, so navigated the same that the bow of the canal-boat or barge on the starboard side of the L. P. Dayton was brought into collision with the bow of the said float or scow Number Four with such force as to break the tow-line from the said scow or float Number Four to the James Bowen, and to crush in the bow of the said barge or canal-boat on the starboard side of the L. P. Dayton; and that, as this respondent is informed and believes, the said barge or canal-boat was the barge or canal-boat, called the 'Centennial,' in the libel in this cause mentioned, and that, in consequence of said collision, the said barge or canal-boat Centennial subsequently sank; that the place where the said collision occurred was about opposite Pier 1, North river, and from three hundred to three hundred and fifty yards from the head of said pier. And this respondent, upon information and belief, says that the said collision was in no way occasioned by any fault on the part of the said float or scow Number Four, or of the said tug James Bowen, or of those in charge thereof, but was occasioned by and due wholly to the fault of those navigating and in charge of the said tug L. P. Dayton, and the said barges or canal-boats in tow thereof, in the following respects: (1) That the pilot in charge of the tug L. P. Dayton, and of the said canal-boats in tow thereof, including the said Centennial, was not a competent person for the purpose, being a man of near and imperfect sight, and generally incompetent; (2) that the L. P. Dayton, at the time of the said collision, while navigating the waters of the Hudson river, and engaged in towing canal-boats or barges, failed and omitted to have white lights placed in the extreme outside of the tow on either hand; (3) that the pilot in charge of the said tug L. P. Dayton, and the canal-boats or barges in tow thereof, after having received and answered the signal of two blasts from the steam-whistle of the James Bowen, instead of keeping to the eastward, and passing the said James Bowen on her starboard side, improperly changed his course so as to cross the bows of the said James Bowen, thereby bringing the bow of the said canal-boat Centennial into collision with the said float or scow Number Four; (4) that the said tug L. P. Dayton, when danger of collision became imminent, did not in season reverse her engine, so as to prevent a collision; (5) that the said tug-boat L. P. Dayton was not provided with a suitable or competent lookout, properly stationed, at and before the time of the collision; (6) that the said tug L. P. Dayton was also negligent in proceeding at too great a rate of speed, the tide being ebb, and the wind from the north-west; (7) that the said tug L. P. Dayton, after twice blowing her whistle as aforesaid, did not keep on her course, but ported her wheel, and went to starboard, showing her red light to the James Bowen and the said float before reversing and attempting to go back. And this respondent, upon information and belief, says that the said collision was in no way due to any fault on the part of the said scow or float Number Four, or of the said tug James Bowen; and upon information and bei ef, he denies each and every allegation in the said libel, and in the supplement filed thereto contained, charging or imputing any fault or negligence whatever to the said float, or those in charge thereof, or the said tug James Bowen, or those in charge thereof, and each and every allegation in the said libel contained respecting the said collision, except as hereinbefore expressly admitted.' Arthur B. Twombly, as surviving partner of Whitney & Twombly, intervened as owner of the steam-tug L. P. Dayton, and answered the libel as follows: 'Second. This respondent admits that on the fourteenth day of February, 1879, the boat Centennial, of the burden of about 300 tons, and of which the libelant was master, was taken in tow by the steam-tug L. P. Dayton, at the pier foot of Fifty-ninth street, New York, to be towed to the Erie basin, at about half-past five o'clock P. M., and that she was loaded with a cargo of wheat, of the quantity of which he is not informed, nor is he informed whether the said boat was then staunch and seaworthy, but leaves the libelant to make such proof in reference thereto as he shall be advised. He admits that, when the Dayton left Fifty-ninth street pier, she had in tow four boats,—two on each side,—and that the Centennial was the inside starboard boat; that she was one hundred and three feet in length, and that her bow projected some twenty feet beyond the bow of the steam-tug L. P. Dayton; that the evening was clear and star-lit, and the tide ebb, and that the tug landed one of the boats that had been on her port side at the Eagle pier, Hoboken, and that she thereafter pursued her course with the remaining three boats, and that, when about opposite or a short distance above pier No. 1, North river, and about three hundred yards from the piers on the New York shore, the Centennial was run into by the scow Number Four, which was then in tow of the steam-tug James Bowen, and received such injuries that she sank, with her cargo. And he admits that the said scow was lashed on the port side of the James Bowen, and that said tug and scow were proceeding from a point in the East river to the Long dock, Jersey City, and that, at the time of the collision she was on a course opposite, or nearly opposite, the course then being taken by the L. P. Dayton and her tow. He denies that it was through any carelessness of the persons in charge of the L. P. Dayton that said tows were not kept clear of each other. He admits that the Centennial was under the control and subject to the direction of the L. P. Dayton, having neither propelling nor steering power of her own. And, as to the various allegations of fault on the part of the L. P. Dayton, he denies the same and each one of them. And as to the allegations in said libel in respect to the damages sustained by the libelant, he has no knowledge, and leaves the libelant to his proof thereof. And he further avers that said tug L. P. Dayton was wholly without fault which caused or contributed to said collision, and the same was wholly caused by fault of those on board and in charge of the said tug James Bowen and said scow Number Four, as alleged in said libel. And he alleges that the tug L. P. Dayton was well and properly manned, and had the requisite lights set and burning brightly according to law, and that the tow was in all respects properly made up; that the two tugs were approaching in such a way that the proper course was for each to pass on the starboard side of each other, and that the proper measures were taken by said tug L. P. Dayton to pass in that manner and the proper signals were blown, but that said tug James Bowen failed to give heed to said signals and to take proper measures to pass on the starboard hand of said tug L. P. Dayton and the boats in her tow, but so negligently navigated as to bring the said scow against the said boat Centennial, and also the boat on the port side of the L. P. Dayton.'

The case was heard in the district court on the pleadings without testimony, and a decree a § passed dismissing the libel. 10 Ben. 430. On appeal to the circuit court, the case was again submitted on the pleadings alone, when the same decree was rendered. 18 Blatchf. 411, 4 Fed. Rep. 834. The present appeal is from that decree, and presents the single question of law whether, upon the pleadings, without testimony, there is error in that decree.

Edward D. McCarthy and Chas. M Da Costa, for appellant.

Jas. E. Carpenter, Joseph F. Mosher, and

[Argument of Counsel from pages 347-348 intentionally omitted]

Wm. D Shipman, for appellees.

MATTHEWS, J.