
    THE WRESTLER.
    (Circuit Court of Appeals, Second Circuit.
    March 23, 1906.)
    No. 173.
    1. Collision — Tugs Meeting — Mutual Fault.
    The Tugs Wrestler and Tebo both held in fault for a collision between them when meeting in East river in the channel between Blackwells Island and Manhattan, which is there about 000 to 700 feét wide. The Wrestler, on the ground that she allowed her two-whistle signal to an overtaking steamer to have its full effect on the Tebo, which had given her the same signal, and later tried to change the maneuver when it was so late that the Tebo could not respond; the Tebo, on the ground that she was navigating on the wrong side, of the channel, in violation of the rules, without necessity and without which the collision would probably not have occurred.
    2. Same — 'Vessel with Unlicensed Pilot.
    The mere fact that a vessel was in charge of an unlicensed pilot does not render her chargeable with contributory fault for a collision, where his navigation was correct.
    [Ed. Note., — For cases in point, see vol. 10, Cent. Dig. Collision, § 14.]
    In error to the District Court of the United States for the Eastern District of New York.
    This cause comes here upon appeal from a decree of the District Court, Eastern District of New York, holding the tugs Wrestler and Tebo both in fault for a collision which occurred between them in the •East river between Blackwells Island and the New York shore.
    The following is the opinion below:
    THOMAS, District Judge. Between the hours of 5 and 6 o’clock in the morning of November 6, 1901, with the tide at the last of the flood and the wind light from the northeast, while it was yet dark and clear, the tug AVrestler, with a barge in tow on a hawser 40 or SO fathoms in length, coming down the East river, met and came in collision with the starboard side of the tug Tebo, aft of the pilothouse, and did the injury for which the libel is filed. The collision was in the East river, on the west side of Blackwells Island, and. in the general neighborhood of Seventy-Eighth street. The Tebo was in charge of the mate, who, although unlicensed, had been boating for 18 years, for four years about the harbor of New York, and had' been accustomed from time to time to relieve the pilot at the wheel. He had been at the wheel on this occasion for a short time, while the captain was changing his clothes in his room just in the rear of the pilothouse. Shortly after taking the wheel the mate of the Tebo saw the Wrestler some distance away, estimated by him at from one-lialf to three-quarters of a mile.
    The mate of the Tebo testifies that he saw the green light of the Wrestler clear, that the red light was shaded; that the Wrestler was slightly on the Tebo’s starboard bow, that the Tebo was 240 or 250 feet from the New York shore, which brought her near the center of the river; that he saw the towing lights of the Wrestler and the green and red light of the barge which was in tow, and saw in iiroximity to the barge what was in fact a large steamer coming down the river, so near to the Blackwells Island shore that, as he states, he had no occasion to exchange signals with her, and did not, and did not hear her give any signals until she was nearly up with the Wrestler. The mate of the Tebo gives the order of events as follows: (1) two whistles from the Tebo to the Wrestler; (2) two answering whistles from the Wrestler to the Tebo; (3) one sharp whistle from the Wrestler when 50 or 60 feet away, both lights brightly showing and coming on an angle towards the Tebo; (4) one whistle, which was part of an attempted alarm whistle from the Tebo, but which was not completed on account of the collision. The m.nte further testifies that, when he exchanged two whistles with the Wrestler he starboarded, bringing his boat somewhat closer to the New York shore, and that he changed his course 1 y2 or 2 points; that he kept under a starboard wheel; that at the time of the whistle he was headed for the New York shore and the Wrestler was also headed for the New York shore; that, as soon as he received the one short whistle from tlie Wrestler, he gave bells to slow, stop, and go back. He also states that, just before tlie collision, the steamer was between the Wrestler and Blackwells Island, on the AVrest-ler's stern, and blew two whistles; that .the AVrestler was then 60 or 70 feet away from the Tebo; that this was two seconds before tlie single whistle from the AVrestler; and that before he got one whistle from the AVrestler he could not infer from the Wrestler’s lights that there was going to be a collision.
    From this evidence of the mate, which, as regards signals and the location of the vessels just previous to the collision, is confirmed by the captain, who, however, gave no orders but testified to what he saw from his position in his room, it is inferable that the Tebo was in sole charge of an unlicensed man, with considerable practical knowledge of harbor navigation; that having the AVrestler slightly on his starboard bow, and a large steamer passing inside of lier and Blackwells Island, he attempted to go to port, and exchanged with tlie Wrestler signals appropriate for that maneuver; that the AVrestler changed her course to starboard in disregard of tlie signals and came upon the Tebo, who ivas under a starboard wheel, endeavoring to fulfill the signals; that there was no lookout on the Tobo and no one in charge of navigation except the single mate at the wheel. The engineer of the Tebo was looking out of the starboard side. Ho stated two whistles were exchanged with the AVrestler, and that from his position he saw plainly botli lights of the AVrestler, and that he stood at the door looking out until he saw the AVrestler coming towards the Tebo, when, after a single whistle from the AVrestler, he got a bell to slow and stop, and had just time to shut off when the collision occurred; thn t he heard no single whistle from tire Tebo; that he saw the port light of the AVrestler's tow and was pretty sure that he saw both lights, but did not notice the steamer.
    The steward on tlie Tebo testified to tlie exchange of two whistles, and to one short whistle from the Wrestler just before the collision, but he did not look out and only inferred that tlie whistles were from the Wrestler by seeing her after tlie collision. The mate of the AVrestler, a man some 70 years of age, but evidently sound in mind and body, was at the wheel, acting under the orders of the captain. Tlie mate was licensed for the harbor and Atlantic Coast, and had been for one month mate on the AVrestler, during which time there liad been two collisions, but there is no evidence that the fault was ascribable to him. The captain was on lookout and gave directions. The mate states that he first saw the Tebo about half a mile or more away, and that when she was between a quarter and half a mile away he blew her one whistle, seeing plainly both lights, and that receiving no answer ho directly gave another single whistle, to which the Tebo, then 200 or .300 feet away, or maybe a little more, replied with one whistle; that he then put his wheel hard aport; that for half a minute the Tebo remained straight and then put her wheel hard «.starboard and came directly across the AVrest-ler’s bow, and that from this action the collision happened; that, after hard aporfing the AVrestler, for a moment he lost sight of the Tebo’s green light, but that when the Tebo hard astarboarded both lights again came plainly into view; that before exchanging signals with the Tebo the AVrestler had received two whistles from the large steamer astern of the Wrestler’s tow, which called for permission to pass, and that to such two whistles the Wrestler responded, and that when the one whistle was first given to the Tebo the steamer was np near the AVrestler; that the Wrestler neither gave two nor received two whistles from the Tebo; that at the time of the collision ho was sure the steamer had passed the Wrestler, but how much he could not tell; that there were two deck hands on tlie AVrestler, but lie did not know where they were; that after exchanging whistles with tlie steamer he, at the direction of the captain, ported his helm slightly to give the steamer more way, going off half a point for that purpose; that he then steadied his wheel. until lie received the one whistle from the Tebo, when he ported and hauled to the New .York shore. On cross-examination he stated that, when the Wrestler blew the first single whistle to the Tebo, the tugs were as much as 200, 300, or 400 feet apart, and that they were two lengths of the Tebo apart when the Tebo changed her course. The engineer of the Wrestler had .lust .•joined the vessel on that day. He stated that he heard and paid no attention to whistles, and that he received and obeyed a bell to slow, stop, and reverse or go backwards. The captain of the Wrestler states that at the place where the signals were sounded, a.nd the general location of the collision, the river is about half a mile wide. In fact, the channel at that point is about (>00 or 700 feet wide. The captain also testifies that he was in the center of the river, or a little to the westward thereof, when he gave the signals; that previously he had received and responded to two whistles from the incoming steamer, whereby she was allowed to pass him on his port side, and that thereafter he blew one whistle to the Tebo and received no response, then another single whistle to which the Tebo responded; that the Wrestler then under a port wheel went to starboard about 400 feet, that the collision happened about 300 feet from the New York shore, and that both vessels were then angling upon the New York shore; that he received but one single whistle from the Tebo; and that, although the Tebo sounded two whistles, they were exchanged with the steamship. I-Ie also states that the steamship had passed the Wrestler before the single whistle was answered by the Tebo. He says that there was plenty of room for the Tebo to go to starboard, or even to go inside of the steamer towards Blackwells Island. The evidence of the captain shows' that his estimate of distances is very incorrect, and, although he seemed to be a fair witness, his appreciation of the situation does not appear to be very accurate.
    From this evidence on the part of the Wrestler, and it is apparent that it indicates the theory of the claimant, it is seen that the maneuver signaled by the Wrestler is precisely opposite that claimed by the Tebo, and that the Wrestler before exchanging signals to pass the Tebo port to port, thus bringing the Tebo between the Wrestler and Blackwells Island, invited the large-steamer to come into that passage, and that the Wrestler went off a little to starboard to enlarge the space for the steamer. The channel is about 500 or 600 feet wide, and the tugs were near the center of the river. It is probable that either the Wrestler did give two whistles to the Tebo, or, after giving the two whistles to the steamer, she gave no whistles to the Tebo, until the vessels were so near together that the Tebo had a right to believe that the two whistles were intended for her, and in response to two whistles given by her.
    The evidence indicates: (3) That the Tebo blew the Wrestler two whistles, which the Wrestler assumed to be intended for the steamer; (2) that the Wrestler thereafter blew the steamer two whistles, which the Tebo’s mate assumed to be an answer to the Tebo’s two signals; (3) that the Tebo star-boarded pursuant to her two signals to the Wrestler, and their apparent an swer, and that the Wrestler ported to give the steamer room; (4) that when nearer together the Wrestler blew the Tebo one whistle, and the Tebo responded, whether with intention to blow a danger signal is doubtful. Thus each vessel did the right thing according to its understanding. The Tebo was slightly, if any, to the westward of the Wrestler, and had no occasion to exchange signals with the steamer, but good reason to avoid crossing the Wrestler’s bow, and pass either between the Wrestler and the steamer, or the steamer and Blackwells Island. The Wrestler first invited the steamer into the space, and when the steamer was there tried to force the Tebo also into it. The master of the Wrestler should have known that his two signals to the steamer might mislead the Tebo, and that the Tebo would not try to go between the Wrestler and the steamer, a space of about 100 feet, nor suppose that the Tebo gave two whistles to the steamer. And yet the Wrestler allowed the two whistle signals to have their full effect on the Tebo, and later tried to change- the maneuver to one suitable under one whistle, and this at so late a period that the Tobo could not respond. But the Tebo’s mate, at once unlicensed pilot, and, because engaged at the wheel, impossible lookout, was in a position where great good judgment was required. Throe vessels wore about to pass in the dark, wiihln a space some (SCO feet wide. What, if any, signals any one should give to each of the others, and for which of the two others the signal given by any one vessel was ini (aided, and what should be done, all this required experience and skill, which the Teho’s i>iiot presumably did not have. Of course, the Tebo urges that the wisest and most skillful pilot could have done no more. But, had a suitable pilot and lookout been in charge of the Tebo, the accident might have been avoided. This is so, or skill counts for nothing in an emergency. In any case the burden is on the libelant to show that notwithstanding his default the accident could not have been averted, and this he has not done. The damages and costs will be divided.
    Henry W. Goodrich, for libelant.
    La Roy S. Gove, for claimant.
    Before WALLACE, I,ACOMBE, and TOWNS RED, Circuit Judges.
   PER CURIAM.

Judge Thomas has most exhaustively rehearsed the facts. Most of them are not in dispute, and upon the points where there was some conflict between the witnesses he had the opportunity to hear the testimony and see those who gave it, and there, is nothing in the case which would warrant a rejection of his conclusions thereon. After a careful discussion, he held the Wrestler in fault because her navigator allowed the two-wl)istle signal, which he blew to an overtaking si earner, to have their full effect on the Tebo (whose navigator supposed they were an assent to his own two whistles), and later changed the maneuver to one suitable under one whistle, and this at so late a period that the Tebo could not respond. We concur in his reasoning and conclusion.

lie also held the Tebo in fault because she had an unlicensed pilot, who was also the only lookout, at the wheel. The absence of a stationed lookout was not contributory to the collision — each vessel saw the lights of the other at a distance sufficient to permit them to navigate conveniently and safely. The mere fact that her pilot was an unlicensed man should not be enough to condemn the Tebo. Although a violation of statutory requirement, it would not be a contributing fault if the navigation of the unlicensed man were correct. The presumption of inexperience and unskillfulness, arising from his holding no license would in such event be rebutted by proof that on the occasion in question he navigated expertly and skillfully. We are not satisfied, however, that his navigation was free from fault. The locality in question is a narrow channel, less than 700 feet wide, through which many vessels are passing by niglit as well as by day. Article %’ó required' the Tebo to keep to that side of the fairway or midchannel which lay on her starboard side, and there is nothing to show that.it was unsafe or impracticable for her to comply with this requirement. It is conceded by her own witnesses that she was not on the starboard side of midchannel, which, as she was bound east, would be towards Blackwells Island, but was on the port side, some 2-10 to 2¡>0 out from the New York shore. We cannot find that this violation of the rule did not contribute to the catastrophe. On the contrary, wc are inclined to the opinion that it was the fundamental cause of the navigation which resulted in disaster. The navigator of the Tebo undertook to pass the Wrestler starboard to starboard and signaled his intention so to do, because when he first made her out her green light was bright and her red light dim (as if only partly seen) and she was a little on his own starboard.bow. Had he been in his proper place, a little eastward of midchannel, he would have had no doubt he was meeting the Wrestler “end on, or nearly so.” Presumably in that case he would have navigated in conformity to article 18, rule 1, and undertaken to pass on the port side after giving a single-blast whistle; in which event this collision would probably not have occurred.

The decree is affirmed, with interest, but, since both sides appealed, without costs.  