The Bern

214 F. 570, 131 C.C.A. 67, 1914 U.S. App. LEXIS 1160

Opinion

COXE, Circuit Judge.

The testimony as to the collision was taken in open court and presents a clear question of ■ fact, the decision of which should not be disturbed unless we are clearly of the opinion that the trial judge was in error. The tug was about 25,0 feet from the pier line on the New York side and was destined for pier 28, East River. She had two loaded coal barges on her starboard side. The tide was strong ebb. The ferryboat came out from her slip on the Brooklyn side intending to cross to the slip on the New York side. At this time the tug was a little below the New York ferry slip, to which the Mineóla was destined. The vessels were on crossing courses, the Bern had the Mineóla on her own starboard side and the starboard hand rule was clearly applicable. We do not see why the Bern could not have stopped and backed on the ebb tide, or ported and gone astern of the Mineóla. The trial judge was of the opinion that she could not have done this because she was not navigating in the middle of the river as required by the East River statute and was not permitted to plead a disability based upon her own violation-of the law. We are, however, inclined to think that the violation of the East River statute had little to do with the collision. As the parties navigated with reference to each other, it would probably have happened, even if the Bern had been in the middle of the river. Wherever she was, it was the duty of the Bern to keep out of the way.

The decree is affirmed with costs.