ERROR to the Circuit Court for the District of New York; the case being thus:
Congress, by an act of April 29th, 1864, 'fixing certain rules and regulations for preventing collisions on the water,' made among them the following:
TWO SHIPS UNDER STEAM MEETING.
Article 14. If two ships under steam are crossing so as to in volve risk of collision, the ship which has the other on her own starboard side shall keep out of the way. CONSTRUCTION OF ARTICLES 14, &c.
Article 18. Where by the above rule one of two ships is to keep out of the way, the other shall keep her course subject to the qualifications contained in the following article:
PROVISO TO SAVE SPECIAL CASES.
Article 19. In obeying and construing these rules due regard must be had to all dangers of navigation, and due regard must also be had to any special circumstances which may exist in any particular case, rendering a departure from the above rules necessary in order to avoid immediate danger.
With these rules in force the James Watt, a North River ferry steamboat, and a fast sailer, set out from her slip at Hoboken, New Jersey, opposite the upper part of New York, to make her regular ferry trip to her slip at the foot of Barclay Street, a point about a mile lower down on the opposite side of the river. This made her course across the river southeast. A few minutes previously the steam-tug Cayuga, a less fast sailer than the ferry-boat, was setting out from her slip at Desbrosses Street, a point on the New York side about half a mile lower down than Hoboken, and of course about half a mile above Barclay Street. Her purpose was to go over to certain wharves on the Jersey shore, not very far from opposite Barclay Street; meaning, however, first to go in to Hubert Street-a street about seven hundred feet below Desbrosses-and there to take a boat in tow. Setting off, she did round in as if to go in to Hubert Street, but perceiving that she could not get the boat out from the place (the dock being then crowded), rounded out again, and pursuing a course about south-southwest went out toward the middle of the river, about one-third into the stream. Pursuing their respective courses the two boats were on intersecting lines; the tug having, of necessity, the steamer on her starboard side until the point of intersection should be passed. The ferry-boat having been the faster sailer, and her point of departure at Hoboken having been farther north than that of the tug on the opposite or New York side of the river, she was continually coming nearer to the tug, but coming up on an intersecting line and not directly astern. The possibility of a collision was, of course, obvious to any intelligence, from the time the two boats left their respective wharves. As they got near the middle of the stream it became more plain; and by degrees, as they approached, the possibility passed into a probability.
Coming quite near to each other, the ferry-boat being still on the tug's starboard side, and just before reaching the point where their courses if adhered to would intersect, the tug stopped her engine for a short time, and then put it ahead. The ferry-boat having supposed, when she saw that the tug's engine was stopped, that it was meant that she, the ferry-boat, should go ahead, now dashed on, but the tug after a short stoppage put her engine into motion again, and a collision followed. The ferry-boat was struck on the port bow, and so much injured that she had to go into dock and remain there seventeen days for repairs; the company which owned her putting on the line a spare boat which they owned and kept to supply emergencies. Hereupon the owners of the ferry-boat libelled the tug in the District Court at New York. That court condemned the tug, and awarded to the owners of the ferry-boat $75 a day for the time she was necessarily laid up for repairs; the superintendents of three leading ferries in New York harbor having expressed the opinion, and the reasons of it with an exhibition of estimates, that the boat was worth that much per day; though it was admitted by her owners that there was no fixed charter rate for ferry-boats.
The Circuit Court affirmed the decree, and from this the present appeal came.
Assuming the case as above given to be the case made out by the evidence (which was what the court did assume), the points, of course, were:
1st. Which boat had violated the rules of navigation?
2d. Whether the decree for demurrage was rightly made on the testimony, and with the admitted want of evidence of a charter rate per day for ferry-boats; and when the company supplied the place of the injured boat with another boat of their own, kept for emergencies of a sort such as that which had happened.
Mr. C. Van Santvoord, for the appellants; Mr. W. J. A. Fuller, contra.
Mr. Justice CLIFFORD delivered the opinion of the court.