Reed v. The Transfer No. 5

42 F. 190, 1890 U.S. Dist. LEXIS 138

Opinion

Benedict, J.

The pleadings in these cases, and the testimony of the master of the Sea Gull, make it entirely clear that the Sea Gull was proceeding up the channel outside of Transfer No. 5, which was moving down the channel. The vessels were not on parallel courses, and the natural navigation under the circumstances would have been for the Sea Gull to pass up in the tide outside of Transfer No. 5, and for Transfer No. 5 to keep near the shore coming down. Instead of passing outside the Transfer No. 5, the Sea Gull ran across the course of the Transfer No. 5, intending to pass np inside oilier, and so caused the collision. Tier only justification for this course is that she received a signal of one whistle from the Transfer No. 5. The case turns, in my opinion, upon the question whether the Transfer No. 5’s signal, being the first signal given between these two vessels, was a signal of two whistles or of one. Upon this question of fact the weight of the evidence is against the Sea Gull, and in favor of the averment on the part of the Transfer No. 5 that her first signal was two whistles. This finding is conclusive of the case. The libel of Reed against Transfer No. 5 must accordingly be dismissed, and the Long Island Railroad Company must recover in their action against the propeller Sea Gull, and her libel as against the Transfer No. 5 must be dismissed.