APPEAL from the Circuit Court for the Southern District of New York, in a case of collision, the case being this:
All steamers navigating the crowded waters of the New York harbor, were bound in 1863 to obey the following RULES OF NAVIGATION, prescribed originally for the conduct of passenger steamers, but adopted by other vessels.
'RULE 1. When steamers meet 'head and head,' it shall be the duty of each to pass to the right, or on the larboard side of the other, and either pilot, upon determining to pursue this course, shall give as a signal of his intention one short and distinct blast of his steam-whistle, which the other shall answer promptly by a similar blast of the whistle. But if the course of each steamer is so far on the starboard of the other as not to be considered by the rules as meeting 'head and head,' or if the vessels are approaching in such a manner, that passing to the right (as above directed), is unsafe, or contrary to rule, by the pilot of either vessel, the pilot so deciding shall immediately give two short and distinct blasts of his steam-whistel, which the other pilot shall answer by two similar blasts of his whistle, and they shall pass to the left, or on the starboard side of each other.
'RULE 2. When steamers are approaching each other in an oblique direction, they will pass to the right, as if meeting 'head and head,' and the signal by whistle shall be given and answered promptly, as in that case specified.
'RULE 3. If, when steamers are approaching each other, the pilot of either vessel fails to understand the course or intention of the other, whether from the signals being given or answered erroneously, or from other cause, the pilot so in doubt shall immediately signify the same by giving several short and rapid blasts of the steam-whistle, and if the vessels shall have approached within half a mile of each other, both shall be immediately slowed to a speed barely sufficient for steerage-way, until the proper signals are given, answered, and understood, or until the vessels shall have passed each other.
'RULE 4. The signals, by blowing of the steam-whistle, shall be given and answered by pilots, in compliance with these rules, not only when meeting 'head and head,' or nearly so, but at all times when passing or meeting, at a distance within half a mile of each other, and whether passing to the starboard or larboard.
'N. B. The foregoing rules are to be complied with in all cases, except when steamers are navigating in a crowded channel or in the vicinity of wharves; under these circumstances steamers must be run and managed with great caution, sounding the whistle as may be necessary, to guard against collisions or other accidents.'
With these rules in force, the Burden, a small propeller tug, was towing up the East River from Atlantic Dock, Brooklyn, the canal boat Kate McCord, heavily loaded with wheat, she being fastened to the larboard side of the propeller. The propeller with her tow was on her way from the Atlantic Dock, on the Brooklyn side of the East River, to Piet 44, on the New York side of it, and in a direct line from the dock to the pier. The tide was the middle of the ebb, running strongly down. In consequence of the shape of the land from Catharine Ferry to Atlantic Dock, there is a strong eddy tide which runs up along the Brooklyn shore to the upper side of the Fulton Ferry slip, when the tide is running ebb, and tugs bound up seek that eddy tide for the double reason that they get the aid of the eddy tide instead of the opposition of the ebb tide, and they avoid vessels bound down, leaving to them the advantage of the ebb tide and the breadth of the river. The propeller was, accordingly, going slowly up in that eddy tide 100 to 150 feet from the Brooklyn piers, and when she had nearly reached the ferry slip she saw the Scranton, a large side-wheel steamer, with an empty barge on each side, coming rapidly down the river, out towards the middle of the river just above the Fulton Ferry.
The Scranton, when about opposite the upper part of the Fulton Ferry slip, starboarded her helm, and at a rapid rate swept in, in a curve toward the Brooklyn shore, with the purpose of running in under the bow of the propeller, and picking up a boat lying on the lower side of the lower pier of the Fulton Ferry slip.