
    THE JOHN H. STARIN.
    (District Court, E. D. New York.
    July 30, 1903.)
    1. Collision — Overtaking Steam Vessels — Evidence Considered.
    Conflicting evidence considered, and held not to sustain the claim of libelants that in a collision between their tug and a steamer the latter was the overtaking vessel) and in fault, but to preponderate in favor of the claim of the steamer that she was overtaken and run into by the tug.
    In Admiralty. Suit for collision.
    John F. Foley, for libelant.
    James J. Macklin, for claimant.
   THOMAS, District Judge.

The tug John Fleming, light, left Palmer’s Coal Dock, on the Brooklyn side of the East river, for the purpose of going to Jackson street, which is somewhat below Grand street, on the New York side. It was about 5 o’clock a. m., February 14, 1902. The weather was clear, the day was just breaking, and the lights on the vessel were displayed properly. When a little to the westward of the center of the river, and about opposite Grand street, New York, the starboard side of the Fleming came in collision with the port side of the inbound steamer Starin, which was plying between New Haven and New York. The contention of the Fleming is that the steamer was overtaking her, and that the persons in the pilot house of the tugboat were attracted by two whistles of the steamer, given to a tow coming up the river close into the New York side; that immediately following such signals, the steamer, which was angling to port, struck, with the bluff of her bow, the tug, about 5 feet ahead of her stern bitts, which were about 25 feet forward of the stem, and raked along her side to a point near the forward bitts, which were some 30 feet aft of the tug’s stem. The contention of the Fleming is that the steamer was going to port to escape a carfloat passing up the river on her starboard hand, and, miscalculating the distance, or not seeing the tug, collided with her; and that the captain of the steamer immediately acknowledged that it was his fault, which the latter denies. It will be noticed that the captain of the Fleming, as well as those on the Starin, place the float well on to the New York shore. If so, there was no occasion for the Starin to go far to port, although her signals might indicate the propriety of so doing, if there was not sufficient room for passing the float. The tug’s destination was on the New York shore, nearly opposite the vicinity of the collision, and she was probably heading at a suitable angle for the desired landing. The evidence of the steamer tends to show that she had ported, for the purpose of straightening her course after rounding Corlaer’s Hook, and that at the time of the collision the wheel was somewhat to port. The parties in the pilot house of the Starin are not as definitely in accord respecting the position of the wheel at and shortly before the collision as is desirable. The substantial evidence for the tug was given by Quillin, formerly her pilot, but not at the time of the trial in the libelant’s employ. He was a fair appearing witness. Smith, the deckhand, gave similar evidence. Jones, the engineer, did not see the accident, but went out, and saw the vessels in collision. Green repaired the Fleming. He testified that the break was from a point a little aft of the afterside bitt to a point five or six feet forward of the forward bitt; that the seat of the injury was between the engine room and the fireroom door. Kelly, the captain of the Fleming, was not aboard, and had not been since 5 o’clock on the previous eVening. However, Kelly made the report to the local inspectors, and stated that he had a conversation with the captain of the Starin after the accident, while the pilot in charge now states that he had the conversation. The evidence on the part of the Starin is to the general effect that she was proceeding under one bell, with the captain, pilot, and quartermaster in the pilot house, and a lookout ahead; that she signaled the float, which was some 200 yards below, when the pilot, looking about, saw the Fleming overtaking them, and said, “What is that fellow going to do?” that the captain and the quartermaster then looked behind, and saw the Fleming; and that she was always overtaking the steamer, and that at no time was she forward of the steamer. Mc-Allister, captain of the Starin, the pilot, and quartermaster, and the lookout of the Starin supported her contention. While they do not agree in all details, their evidence is in general accord as to the position of the vessels. On the whole, they were very well-appearing witnesses, and gave their evidence with much clearness and fair recollection of details. The captain of the Starin was an unusually acceptable witness. The Starin’s evidence clearly outweighs that offered by the libelant, and whatever inferences may be urged on account of the locality of the contact and the nature of the injury, the burden of proof is on the libelant, and he has not sustained it.

The libel should be dismissed.  