The Steam-tug M. R. Brazos. The collision happened about ten o'clock on Sunday morning, August 31st, 1873. The day was warm and fine and the river at the time was free from other vessels. The tug having gone into the cove for this fourth boat and come out without taking her up and proceeding on her voyage up the East river, came so near to the bath house that the barge, on her port side, struck against the outer and lower corner of the bath house, injuring and shattering it so that it fell apart and was carried off by the tide. The libel alleges that the collision was caused by the negligence of those in charge of the tug. It is objected by the claimant, the owner of the tug, that the court has no jurisdiction of the cause, on the ground that the injury complained of was not on the water but on the land, within the meaning of the rule governing the jurisdiction of the admiralty courts in actions for marine torts. It is clear that the libellant's bath house, though described in his libel as a "vessel," was not a vessel constructed or used or intended to be used as an instrument of commerce or navigation. The test, however, of the jurisdiction of the courts of admiralty in respect to torts, is whether the place of the alleged injury was "on the water." (The Maud Webster, 8 Ben. 547 and cases cited.) This structure cannot be said to have become a part of the land. Its connection with the shore was for a temporary purpose. The testimony shows that it was a movable structure, moored in this place in tide waters, for use as a bath house during the summer months, the design of the owner being to disconnect it from the shore in the Autumn and float it away to some more suitable place for laying it up during the winter. The mode of its attachment to the shore was adapted to this purpose and was such that it could be readily disconnected. I do not see that the case is any different from what it would be if the The Steam-tug M. R. Brazos. bath house had been moored at anchor in the same place or out in the middle of the river. The case is clearly distinguishable from the case of The Maud Webster, cited above, in which it was held that the place where the derrick which was injured stood had become a part of the land. The libellant, therefore, has the right to have the case determined on the merits. The defence set up by the tug is that the injury was the result of inevitable accident-that while the tug was properly and for a lawful purpose and without negligence attempting to back up to the pier in the cove to take in tow the boat loaded with manure, her engine, without fault on the part of the engineer, caught on the centre; that she used all proper diligence in prying the engine off the centre, and that in the situation in which she then was, having been drifted by the tide while thus helpless towards the rocks on the point at 64th street, the only proper and prudent course to avoid going ashore was to head out into the river and go ahead with all speed; that she did this with all possible expedition and thereby suceeded in avoiding the point, but the tide still setting her up towards the corner of the bath house after she cleared the point, she had not gained sufficient headway to clear the bath house, and that without fault on her part, the boat on her port side struck the corner of the bath house and did the injury complained of. This defence is, I think, made out. The testimony in this case shows very clearly that the catching of the engine on the centre is an accident which cannot, by the exercise of any degree of watchfulness be anticipated or by any precaution prevented, and that it does not show any defect in the machinery or want of care in the engineer. Up to the time the engine so caught on the centre the management of the tug was without fault. she had a perfect right to come into this cove to take the The Steam-tug M. R. Brazos. boat in tow. She lay there off the pier a short time, drifting slowly up with the tide, stopped, or almost stopped, and hailed those in charge of the boat to be taken up. Her attempted movement by backing to take up the boat, which was in an eddy setting down along the shore on the inside of the cove, was proper. The drifting of the boat towards the point while her engine was caught made it impossible for her to resume this movement. Her pilot immediately did what was obviously the only safe thing for him to do, turn. her head to the river and go ahead as fast as he could. By doing so he cleared the point only by about fifteen feet. The evidence shows that when he thus started to go ahead he put his wheel a-port so as to head her out into the river; that she grazed so near the rocks at the point that it was necessary to put the wheel amidships in passing in order to throw the stern of the tow off from the rocks, and that when the stem of the tow had got by the bath house he attempted to keep the stern of the tow from coming in contact with the bath house by putting his wheel to starboard in order to throw the stern off. It was a very close thing between the force of the tide setting up the river and the headway of the tug driving her out into the river, and the force of the tide proved too strong. But the real cause of the collision was the catching of the engine on the centre and the consequent drifting of the tug and tow into a position where, with the exercise of all reasonable care and skill, it was impossible to avoid coming in contact with the bath house. There was no fault in the construction or motive power of the tug. She had no larger tow than she could properly manage. Her pilot was familiar with the navigation of the river; he knew the set and force of the tide and the nature of the navigation he had to encounter in going into this cove. It is true that he had not actually been to this pier before, but that is im The Steam-tug Senator Mike Norton. The Steam-tug Titan. material, as he was familiar by frequent observation in navigating the river with the tides at this place, and there was neither negligence in going into the pier nor want of skill in endeavoring to extricate the tow from the situation in which she was unavoidably placed while there. I have given no weight to the suggestion that the bath house was an obstruction to navigation. I do not perceive that, if that were so, the tug could justify her own negligence in running against it. Libel dismissed with costs. For libellant, D. McMahon. For claimant, W. R. Beebe. MAY, 1879. THE STEAM-TUG SENATOR MIKE NORTON. COLLISION BETWEEN STEAMERS IN EAST RIVER.-LIGHTS.-WHISTLES. A collision occurred in the evening of October 1st, 1875, about off Pier 1, East River, in New York harbor between two steamers, the T. and the S. M.N. The T. was bound from pier 5, East River, to pier 14, North River, to lay up for the night. The S. M. N. had towed a bark in from sea and anchored her between Bedloe's Island and the Battery, and was bound for pier 16, East River. Both boats had their lights set and burning. The pilot of the T. averred that a ferry boat having passed ahead of him going to the northward, he ported his wheel following her up, and as she passed him he saw both *Affirmed by the Circuit Court on appeal. 萬 The Steam-tug Senator Mike Norton. The Steam-tug Titan. the red and green lights of the S. M. N. ahead of him about 400 to 600 yards off, his boat at the time making seven or eight miles an hour; that he at once blew one whistle and ported his wheel and kept on a port wheel till the S.M.N. came in collision with the T., striking her on the port side nearly at right angles; that the S. M. N. answered his single whistle with a single whistle, but that her pilot starboarded his wheel instead of porting it, and that when the vessels were three or four lengths apart he rang his jingle bell to give the T. more speed, and if possible, get by; The story of the S. M. N. was, that she made the green light of the T. on her starboard bow, whereupon the pilot of the S. M. N. blew two whistles and put her wheel slightly to starboard, and that the T., after waiting about a minute, answered with one whistle and ported her wheel and ran across the course of the S. M. N. and thus caused the collision: Held, That it is difficult to believe that, after the pilot of the S. M. N. had answered the single whistle of the T. with a single whistle, he starboarded his wheel; That, if the account of the pilot of the T. were true, he was in fault, because as soon as he saw that the S. M. N., after having answered his whistle with one whistle, was running down on him with a starboard wheel, he should at once have stopped and backed, instead of increasing his speed; That, on the evidence, the S. M. N. blew two whistles before the T. blew one, and that at that time the green light of the T. alone was visible, and that the S. M. N. did not answer the single whistle of the T. with a single whistle; That the T. was solely in fault for the collision. CHOATE, J. These are cross-libels to recover damages caused by a collision between the two steam-tugs on the evening of October 1st, 1875, about off pier 1, East River. The Titan was bound from pier 5, East River, to pier 14, North river, to lay up for the night. The Norton had towed a bark in from sea and had anchored her in the North River between Bedloe's Island and the Battery, and was bound for pier 16, East River. The collision happened after dark and both boats had proper lights. The tide was the first of the flood and the night clear. The case of the Titan, as stated by her pilot, is that when he got out into the river from pier 5 and got straight |