The opinion of the court was delivered by: GALSTON
The libel alleges that barges John J. Feeney and Louise Schumann, while proceeding in the New York State Barge Canal between locks 33 and 32, in tow of the tug Cornell No. 20 bound from Buffalo to New York, sustained damage.
It is alleged that the tug Thomas R. Coyne was seen proceeding west with four barges in tow; that the Cornell No. 20 thereupon went over to the starboard side of the canal and slackened her speed until the tug and her tow were resting on the starboard side of the canal. The tug Coyne with her tow, it is stated, continued coming on toward the Cornell No. 20 and her tow, and instead of keeping to the port side of the canal, kept well over to the side of the canal where the Cornell No. 20 and her tow were lying. It is alleged that the tug Coyne safety passed the Feeney and the Schumann, but the Coyne's hawser tier boat came into violent collision with the port side of the Feeney, as a result of which the Feeney collided with the Schumann.
The fact of damage is not disputed. The Coyne, however, lays the entire fault on the Cornell.
The conflicting stories are impossible to reconcile. Each tug contends that she and her tow were navigating, each on her starboard side of the canal. Of course, if this were so, no collision would have resulted.
The Cornell had four barges in tow; the Emma McNichol and the Alice Brody, in addition to the John J. Feeney and the Louise Schumann. All the barges were loaded. The Cornell No. 20 had two hawsers out, approximately 110 feet in length, between the tip of the stern of the Cornell No. 20 and the bow of the John J. Feeney. The Feeney and the Schumann were about 29 feet wide, and the McNichol and Brody about 22 feet wide. The tow of the Cornell was steered from the bow of the Schumann.
The Coyne had four box scows, approximately 30 feet in width, also arranged tandem fashion, and all loaded. The hawser from the Coyne to the George Stevenson, her head barge, was about 60 feet, and the steering of this tow was from the port bow of the James B. Malone, the second boat in the Coyne tow.
The distance between lock 32 and lock 33 is about one mile. Proceeding west, which was the Coyne's direction, there is a slight turn in the canal to the south, after which the stretch is straight ahead.
The witnesses generally agreed that the canal in the level is about 75 feet wide on bottom and about 100 feet wide on top. The banks on each side are approximately 12 feet high, and sloping. In the channel the water is 12 feet deep.
In the matter of signals, I think it may be said that the tugs exchanged one blast whistles. The Coyne on passing the Feeney blew three short signals. From the time of the exchange of the one whistle blasts McNichol, who was at the wheel of the Louise Schumann, was the only eyewitness of the movements of both of the tugs and tows. His duty was to keep in the wake of the tug. At the moment of the exchange of signals he said that he was on the right-hand side of the canal, though he admitted that when he left lock 33 they did not go over to the right hand side until they met the Coyne; that at that time he wheeled to the starboard side. At that time the tugs were a couple of hundred feet apart.
"Q. So when the tugs were 100 or 200 feet apart you went over against the starboard bank, is that right? A. Yes, sir.
"Q. And I suppose your tow responded right away? A. Yes, sir.
"Q. So that from that time on -- A. The tug hauled us --
"Q. So that from that time on you scraped up against the starboard bank, as you think, is that ...