The Defiance

S.D. New York

The Defiance

92 F. 521, 1899 U.S. Dist. LEXIS 62

DecidedMarch 15, 1899

StatusPublished

This text of 92 F. 521 (The Defiance) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

The Defiance, 92 F. 521, 1899 U.S. Dist. LEXIS 62 (S.D.N.Y. 1899).

Pincite

Opinion

BROWN, District Judge.

At about 11 o’clock in the forenoon of September 15, 1898, as the steam tug Defiance was passing through the gap at the entrance of the Atlantic Basin, Brooklyn, with, two canal boats lashed to her starboard side, the starboard boat came in contact with a scow on the starboard side of the tug Edward Dayton, which was then coming out of the gap. The libel was filed to recover the damages thereby sustained hv the libelant. The wind at the time was high from the N. W. and the ebb tide strong, which swept down directly in front of the gap. These circumstances, made it impossible for the Defiance to go upon a straight line through the gap. More or less of swinging was unavoidable, and the line of her entrance was necessarily more or less uncertain. Some little time before [522]*522reaching the outside of the gap, the Defiance had given the usual long whistle to indicate that she was coming in, and when near and at the entrance she twice gave a signal of two whistles. The evidence leaves no doubt that when the long whistle.was given the Dayton was inside the basin and 500 or 600 feet distant from tbegap, and that at the first signal of two whistles she was 100 or 200 feet back of the gap. In this situation, there is no doubt that the Defiance was the privileged vessel and had the right of way. It was the duty of the Dayton and her tow to keep within the basin and not enter the passage of the gap. As the Dayton in her answer denies knowledge of the long whistle given by the Defiance, it is probable that it was not heard by the Dayton; but it was heard by other vessels in the immediate vicinity, and if not heard by the Dayton, it was through negligence and inattention. It is plain also that the Dayton did not reverse as soon as the two whistles of the Defiance were heard, and that this was before she had entered the gap.

As respects the navigation of the Defiance in entering the gap, I am satisfied, not only from her own witnesses, but by the testimony of the mate of the Dayton, that her navigation was such as was usual •and proper under such circumstances.

I find, therefore, that the collision arose from the fault of the Dayton in not giving proper attention to the signals of the Defiance, and in not keeping out of the gap until the Defiance had passed through, and that it was without fault of the Defiance.

Decree for the libelant against the Dayton with costs, and dismissing the libel as to the Defiance with costs.

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BROWN, District Judge.

At about 11 o’clock in the forenoon of September 15, 1898, as the steam tug Defiance was passing through the gap at the entrance of the Atlantic Basin, Brooklyn, with, two canal boats lashed to her starboard side, the starboard boat came in contact with a scow on the starboard side of the tug Edward Dayton, which was then coming out of the gap. The libel was filed to recover the damages thereby sustained hv the libelant. The wind at the time was high from the N. W. and the ebb tide strong, which swept down directly in front of the gap. These circumstances, made it impossible for the Defiance to go upon a straight line through the gap. More or less of swinging was unavoidable, and the line of her entrance was necessarily more or less uncertain. Some little time before [522]*522reaching the outside of the gap, the Defiance had given the usual long whistle to indicate that she was coming in, and when near and at the entrance she twice gave a signal of two whistles. The evidence leaves no doubt that when the long whistle.was given the Dayton was inside the basin and 500 or 600 feet distant from tbegap, and that at the first signal of two whistles she was 100 or 200 feet back of the gap. In this situation, there is no doubt that the Defiance was the privileged vessel and had the right of way. It was the duty of the Dayton and her tow to keep within the basin and not enter the passage of the gap. As the Dayton in her answer denies knowledge of the long whistle given by the Defiance, it is probable that it was not heard by the Dayton; but it was heard by other vessels in the immediate vicinity, and if not heard by the Dayton, it was through negligence and inattention. It is plain also that the Dayton did not reverse as soon as the two whistles of the Defiance were heard, and that this was before she had entered the gap.

As respects the navigation of the Defiance in entering the gap, I am satisfied, not only from her own witnesses, but by the testimony of the mate of the Dayton, that her navigation was such as was usual •and proper under such circumstances.

I find, therefore, that the collision arose from the fault of the Dayton in not giving proper attention to the signals of the Defiance, and in not keeping out of the gap until the Defiance had passed through, and that it was without fault of the Defiance.

Decree for the libelant against the Dayton with costs, and dismissing the libel as to the Defiance with costs.

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Bluebook (online)

92 F. 521, 1899 U.S. Dist. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-defiance-nysd-1899.