The opinion of the court was delivered by: HULBERT
A libel was filed in this court on February 5, 1935, by the Baltimore & Ohio Railroad Company, a Maryland corporation, having an office and place of business in New York City, as owner of the tug George F. Randolph, against the tug Rochester owned and operated by the Erie Railroad, an Ohio corporation, to recover damages resulting from a collision in the East river about 300 feet off the Brooklyn shore, just below the Old Fulton Ferry slip on March 9, 1934, about 5:30 p.m.
Trial was had on February 6, 1936.
It was conceded on the trial that the East river, at the point in question, is about 1,300 feet wide from pierhead to pierhead line. Congested traffic; tide running ebb about 3 miles per hour, and weather clear.
The Randolph had taken a carfloat, 284 feet long, on her starboard side at a Wall about Market pier and was proceeding down the East river about 500 or 600 feet astern a Lee & Simmons hawser tow.
The New York Central Tug No. 34, with a barge on either side, was proceeding upstream "on the Brooklyn side of the middle" of the river, bound for Long Island Railroad Terminal (Long Island City).
There was a Berwind & White tow of coal barges following astern of the No. 34 on her port and another New York Central tug engaged in removing two barges from the north side of pier 20 (Manhattan) which is the second pier below the Old Brooklyn Bridge.
The tug Rochester had just pulled a carfloat from its berth on the south side of pier 20 (Manhattan) and lashing it on her starboard side headed upstream. This carfloat projected from 100-150 feet beyond the bow of the tug and a few feet astern thereof. As the Rochester was bound for the Erie Terminal on the Jersey side of the North, or Hudson, river, she put her wheel hard to port intending to round to and cross the river and proceed down on the Brooklyn side.
It has been repeatedly held that the "Narrow Channel Rule" does not apply between the Battery and Blackwell's (now Welfare) Island, but that the local statute governs. This is frequently referred to as chapter 321 of the Laws of 1848, which was repealed by chapter 42 of the Laws of 1909, the substance of said statute of 1848 having been re-enacted in chapter 410, § 757, of the Laws of 1882, and reads in part, as follows:
"All the steamboats passing up and down the East river, between the Battery and the southern extremity of the city of New York and Blackwell's island, shall be navigated as near as possible in the center of the river, except in going into or out of the usual berth or landing place of such steamboat, and shall not be propelled at a greater rate of speed than eight miles an hour below Corlear's Hook, nor ten miles an hour above Corlear's Hook."
When he first saw the Rochester, the Captain of the No. 34 states that he was about opposite pier 15 Brooklyn; the Captain of the Rochester testified that when he first saw the Randolph off Dock street, Brooklyn, the No. 34 was opposite pier 7, Manhattan. The Tochester then signaled the No. 34 with two blasts of her whistle indicating that she would cross the bow of the No. 34 and make a starboard to starboard passing. The Captain of the No. 34 claims that he did not hear any signal, but that when he saw the Rochester had changed her course and having the tide against him he could stop very easily, and did. At that time he stated the Randolph was up above the Bridge.
The Captain of the Randolph testified that as he approached the Bridge, he was nearer the middle of the river which, at that point, runs in a westerly direction but bends to the southwest. He first noticed the upbound New York Central tow when he came around the bend and, when he was off the "Jay Street Terminal," the Rochester was just taking the carfloat on her starboard side heading upstream.
The Captain of the Rochester testified that he assumed that the destination of the Randolph was pier 21 (Manhattan) and that she would proceed diagonally across the river and pass under the stern of the Rochester. Her ultimate destination was St. George, Staten Island, but she was under orders to stop at pier 21 and pick up another carfloat. Her Captain, however, testified that when she approached the Bridge, the Erie started to round to, as he figured, to go down the river. The Randolph directed her course along the Brooklyn shore because at the existing state of the tide, which sets toward Brooklyn, it was both the proper and customary maneuvering for him to proceed to a point below Fulton street in order to round to and cross the river to get in on the south side of pier 21 and pick up his other float.
The Rochester anticipated no interference from the Lee & Simmons tow which the Captain of the No. 34 testified the Randolph was ...