Walsh v. The Dakota

60 F. 1020, 1894 U.S. Dist. LEXIS 189

• Court: District Court, S.D. New York
• Decided: March 26, 1894
• Status: Published

Opinion

DROWN, District Judge.

The ferryboat Dakota, while crossing from her slip at Broadway, Brooklyn, to Grand street, New York, came in collision with the libelant’s tugboat Olive Baker, at about half past 6 in the morning of August 15, 1893. The starboard bow of the ferryboat struck the starboard side of the tug about amidships, at an angle of from 2{ to 3 points. The time was about an hour and a half after low water at Governor’s Island; and as the current in the East river continues to run down for about an hour and a half after low water, although there is a little upward current along the shores somewhat earlier, it is certain that there could not have been much flood tide to cause the ferryboat to deviate very greatly from a straight course across the river.

Beyond the fact that the Dakota gave a signal of one whistle, almost every other circumstance in the case is a subject of most; flagrant contradiction. The general theory of the libelant, to the effect that after the Dakota had given one whistle, and the Olive1 Baker had passed to the right, so that the boats were really out of all danger of collision, the Dakota, when pointing astera of the lug. and nearly straight down river towards the navy yard, gave two whistles and swung still more to port, towards the Brooklyn shore; until she ran upon the Baker far on the1 Brooklyn side of the river, is not only improbable in the highest degree, but is contradicted througliemt by the respondent’s witnesses. Kucli navigatiem by the; ferryboat is iimonceivable and cannot, be1 credited. The burden) of proof is upon the libelant. I cannot regard any part of his case1 as established. The Dakota gave no signal of twe> whistles; but after her first single whistle, she gave only an alarm signal of three whistles. The collision was near the New York slmre. I An el that the ferryboat pursued hen* customary course towards the1 Grated street slip; that there; was but a slight flood current, and that she; did not head down river, or towards the navy yard at any time, nor towards the1 southwest, themgh the pilot’s mistake; and confusion in testifying, or some1 error in his compass, gives a slight color te» the libelant's contention in that regard. As soem as the Olive Baker was seen coining up near the New York side;, threatening to go between the Dakota and her slip, the Dakota properly gave a signal of one whistle1, slowed down, and afterwards stopped and backed as soon as danger from the Baker became apparent. Tins was in accordance with the rulers of navigation. When her whistle; was given, the Olive1 Baker had (lie Dakota on her own starboard hand, ami was bound to keep out of the way. £¾<; could easily have done' so, either by going to the right, as was her duty to do, or by stopping and backing; neither of which she did.

I And that the Dakota did all that was required of.her,- by stopping and backing as soon as suck action on ker part was apparently needful to avoid collision; and tkat tke collision arose from tke failure of tke Olive Baker to take proper and timely steps to keep out of tke way.

Tke libel: ¾ dismissed, with costs.