The Thomas J. O'Brien

257 F. 728, 169 C.C.A. 16, 1919 U.S. App. LEXIS 2272

Opinion

PER CURIAM.

We agree with the court below that the Perth Amboy was at fault. She sought and understood the intention of both the Gallagher and O’Brien. There was no reason why she should not have given them both room to make a starboard to starboard passage; there was plenty of water and plenty of time. A majority of this court, however, are also of opinion that the O’Brien was at fault, because she saw, or ought to have seen, that the Perth Amboy was not giving her as much room as she needed under existing conditions of wind and tide, there was no reason for her endeavoring to pass the Gallagher while rounding Throgg’s Neck, and she therefore navigated negligently under the circumstances in endeavoring to pass between the two other tows. It is a ease of close shaving, and The Volunteer, 242 Fed. 921, 155 C. C. A. 509, is applicable.

The decrees appealed from are modified, so as to hold the O’Brien also at fault, and the causes remitted, with directions to enter decrees not inconsistent with this opinion. The appellant will recover the costs of this court