The main point of dispute is, whether or not the order to port was given, and the change of the direction of the ship had taken place in pursuance thereof, after the tug and tow were seen by the hands on board of the ship. If the order was given afterwards, or even after the tug and tow might have been seen with a proper lookout, then the ship was in fault in giving the order. On this point there is much conflict in the proofs. The result of my examination is, that the order to port was given, and the change of the direction of the ship, which placed her on the track of the tug and tow, took place, before her hands had discovered them in motion; and that, with her sails aback and her head to the wind, she was disabled from avoiding the collision. But, at the same time, I agree with the court below, that, with a competent lookout properly attending to his duty, the descending vessels might have been seeu in time to prevent the manoeuvre and the heading of the vessel in shore across their track. The night was not very dark, and the chief difficulty in discovering the tug and tow arose from the great number of vessels at anchor, with lights, in that locality. The hands on the ship saw the lights of the descending vessels in time to have avoided them, but mistook them for the lights of vessels at anchor.
I also agree with the court below, that the tug was in fault for descending the river in the night so near the shore in that locality, and at a rate of speed of five miles an hour, with the tide; and, according to the testimony of the captain of the barge, probably at a greater rate of speed. These vessels were on their way around the Battery to the East river, and should have kept further out into the river, outside of vessels at anchor with lights, and clear of vessels coming in to anchor in the night on the New York side.
The decree must be affirmed, but without costs to either party, as both parties have appealed.