HOUGH, Circuit Judge (after stating the facts as above).
The vital inquiries in this case are we think two: (1) What was the place of collision? (2) How does the story told for the Burro account for collision at that place?
The fact that Montauk's starboard car float struck the end of Rivington Street pier almost immediately after collision, the fact that the usual — indeed, almost invariable — course of car float tows down the East River on the flood tide is very close to the Manhattan pier line, and the direct testimony on the subject, unite to convince us that Montauk, just before collision, was pursuing the course sworn to by her witnesses, viz. about 100 feet outside the Manhattan pier line.
The story of the Burro's master, supported by his deckhand and bargees, is plain enough. On approaching Corlears Hook the tow was swept by the flood tide toward Brooklyn, but was straightened up so that, with his tow well aligned behind him, the Burro's master was just about to pass under the middle of the bridge when he saw the Montauk's lights off about Eleventh street. He blew one blast and proceeded up midstream, whereupon collision occurred off Rivington street; and Burro's witnesses with rather singular unanimity in detail agree that such collision occurred about 700 feet from the Manhattan shore; in other words, in midstream.
Now from Eleventh to Rivington streets is considerably more than half a mile, but from the bridge to Rivington is about 450 feet. Yet according to this story the Burro, which was traveling nearly three feet to Montauk's two, was unable to get above Rivington street before Montauk had traveled more than half a mile and run into her tow. Distances on the water and at night are proverbially deceptive, but the experienced men who testified in this case were pursuing the usual harbor method of judging distances by streets and piers, and not by water guesses.
Holding it to be clearly proved that contact occurred close to Rivington Street pier end, there is no method of reconciling Burro's story with proven facts, and telling the story impugns either the integrity or intelligence of him that tells it.
The successful argument below (as shown by colloquies with the court) was that, since there was a clearance of at least 200 feet between the tugs as they passed, and the set of the tide at Corlears Hook is toward Long Island, it was impossible for the Burro's tow to swing toward Manhattan, so as to produce collision at the place sworn to by Montauk's witnesses, and where we have found that collision occurred. This argument is appellee's main reliance, and it is asserted in varying forms that the tow could not swing over toward the Manhattan shore on account of the tide set.
Undoubtedly at Corlears Hook the flood tide sets toward Long Island. One need only look at the chart to see why, viz.: The flood tide is caromed off from the downstream side of the Hook and toward Brooklyn, just as a billiard ball bounces from its cushion. But that does not mean that the flood tide is setting toward Brooklyn above the Hook, nor indeed is the tide set pronounced even in midstream. This is shown by Burro's testimony, for it is positively sworn that, although the tide swept the tow toward Brooklyn on reaching the Hook, it was straight behind the tow in midstream under the bridge. Above the bridge, so far as we gather facts from evidence, the flood tide runs fairly true. Accordingly we perceive no reason why above the bridge any swing of the tow which put the strength of the flood tide on the starboard side would not send the boats toward Manhattan.
We incline to believe this to be the explanation of accident; but it is not necessary to affirm this as the exact truth. It is enough that a single whistle signal had been blown; it was the duty of both tugs to keep themselves and their tows in such shape as to insure a port to port passage. Admittedly this was not done, and, if the place of collision was where we have found it, Montauk did not fail in her duty; therefore Burro must have failed. The burden of explanation is on her and has not been borne.
Decrees reversed, with costs.