The Hokendaqua

LEARNED HAND, District Judge

(after stating the facts as above). [1, 2] In The Arrow, 214 Fed. 743, 131 C. C. A. 49, this court decided that the situation here in question was not a crossing, but a meeting, case, unless an exchange to the contrary is agreed upon. It follows, therefore, that each vessel must normally pass port to port, and that the May would have been right in keeping on, expecting the Hokendaqua to go down the west channel, or at least to wait where she was until the May had crossed her bow. The Transfer No. 12, 221 Fed. 409, 137 C. C. A. 207. The Llokendaqua did neither, but proposed a starboard to starboard crossing, and in so proposing she undertook the risk of the venture. The Nereus (D. C.) 23 Fed. 448; The Admiral (D. C.) 39 Fed. 574; Atlas Transp. Co. v. Lee Line Steamers, 235 Fed. 492, 495, 149 C. C. A. 38. The May’s assent did not absolve'the Hokendaqua from this risk, and we accept the decision of the May’s master, made on the spur of the moment and with the contingency facing him that he had only one course, which was to back, that he could not pass across the bows of the Milton and under the stern of the tow. The May suggests that it might have been possible for the Hokendaqua to have crossed the bows of the Milton and under the stern of the May; but we think that such a difficult maneuver, particularly in these narrow waters, would have been a clear fault. The Transfer No. 9, 107 Fed. 533, 46 C. C. A. 450. The time for the Hokendaqua’s decision was when she emerged and found the May and Milton both approaching on her starboard hand. We do not think it likely that the small Milton obscured the yacht, which, although a good many feet behind her, was on a course some 100 feet to the starboard of the Milton, and could not have been more than momentarily obscured. That the course proposed was impracticable and dangerous appears sufficiently by the event itself. Hence we disagree with the District Judge and hold the Hokendaqua in fault.

[3] We cannot, however, excuse the May. She was passing over the land at a rate of at least 15 miles an hour in confined and danger-pus waters. This alone we should not hold to be a fault, where she commanded a view of all shipping which might interfere with her navigation ; but this was not such a place, because Horn’s Hook blocked her view of substantially all of the Harlem River. She had no sufficient reason to suppose that she would through bend whistles become aware of shipping coming down the Harlem River and momentarily in the bight behind the Hook. That she might be confronted with the sudden emergence of a tow 500 feet in length, as in fact she was, seems to us within every reasonable possibility. Such speed in such a place was unwarranted and dangerous.

[4] Moreover, we hold the May at fault for failing to give the backing signal under article 28 (Act Aug. 19, 1890, c. 802, 26 Stat. 328 [Comp. St. 1916, § 7867]), which she was clearly obliged to do. Her failure to do so advised the Hokendaqua that she would attempt to„ assist the maneuver by the only other course possible; that is, by passing under the stern of the scows. Had she indicated that she was backing, it does not follow that the Hokendaqua might not have checked her own speed and held her tow against the tide, considering the speed of the May herself, or that she might not even have cast off her tow and picked it up later — a course which would have given the May the opportunity to pass between her and the tow, if she could not wholly check her speed. Whether this failure contributed to the collision we cannot, of course, say, as the result is wholly speculative; but it is a violation of the statutory rule, and as such the burden rests upon the May to show that it could not have contributed to the collision.

The decree is reversed, with costs in this court to the May, and the cause remanded, with directions to enter a decree for half damages and costs ¿¡n the District Court.