The R. W. Burrowes-The Bordentown.

with such a tow, to have kept well off to the west shore; and the importance of this is clearly illustrated by the circumstances under which the libellant's boat was injured. In the effort to make a sheer, when her peril became apparent, the Burrowes turned to the west, and her tow, attached to her by a long hawser, no longer feeling her power, moved on with her full headway, and struck the Bordentown, which had at that time, according to the proof, come to a full stop.

It will not answer to say, that, in all places and under all circumstances, proof that a tug-boat has complied with the statute regulations in regard to lights upon herself, shows a full discharge of her duty. The Burrowes may have been at liberty to navigate the Kills on that night and in that state of the weather; but the circumstances called for extraordinary diligence to observe all reasonable precautions, by moving at a moderate speed, by seeing to it that her tow was itself under proper control and management, and by keeping well over to her own side of the stream. Approaching vessels were as much interested, and their protection as truly demanded, that her tows should be under control, as that the tug herself should be; and especially so when, there not being any sufficient number of lights on the canal-boats, an approaching vessel would be, as the Bordentown was, unaware of their presence.

Upon a careful examination of the testimony and a review of the whole subject, I am constrained to say, that there was mutual fault on the part of the Burrowes and the Bordentown, and that each should bear one half of the damages and costs of the libellants, and each bear her own costs.

Let the decree below be modified in conformity with this opinion.

The Helen R. Cooper-The R. L. Mabey.

THE HELEN R. COOPER.-THE R. L. MABEY.

Where a vessel is lying properly moored at the side of a wharf, at some distance within the outer end thereof, the fact that she is injured by being run into by another vessel, is prima facie evidence of fault in the latter, and throws upon her the burthen of excusing such fault.

Where a steam-tug and a ship in tow of her are both of them sued for the injury caused to another vessel by her being run into by the ship, and the answer put in by the tug is not consistent with an answer first put in by the ship, and an amended answer put in by the ship is not consistent with the answer first put in by the ship, each of the two answers put in by the ship being sworn to by the same person, such inconsistencies are to be taken into consideration in passing on the question of liability for the injury.

In this case, the tug and ship in tow of her were both of them held liable for an injury caused by the striking of the ship against another vessel lying moored at a wharf.

Where witnesses, although otherwise unimpeached, are testifying under circumstances calculated to create a strong bias, and they state what is, in its nature, incredible, their testimony is not necessarily to be believed.

(Before WOODRUFF, J., Eastern District of New York, June 18th, 1870.)

WOODRUFF, J. On the 17th of February, 1866, the ship J. F. Chapman, owned by the libellants, was lying on the north-eastwardly side of pier No. 45, East river, her bow towards the shore and her stern twenty feet inward from the end of the wharf. In that position she was run into by the ship Helen R. Cooper, which came in past the pier next above, head on, nearly at right angles to the Chapman, and broke in her side, doing great damage. The Cooper having been at that time in tow of the steam-tug R. L. Mabey, the libellants proceed against both ship and tug, charging both with negligence and misconduct, and have obtained a decree in the District Court against both vessels, (2 Benedict, 67,) from which the claimants of both vessels have appealed. On the trial in this Court, no other evidence was produced than the testimony given in the District Court, and the question before me is, in effect-Are the conclusions of the Court below sustained by

The Helen R. Cooper-The R. L. Mabey.

the evidence? There are no questions of law involved, in respect to which there is any dispute or difference between the counsel. The sole defence, stated in general terms, is, that the collision was caused by inevitable accident. The case has been very fully and ably discussed by counsel on both sides, and the testimony is quite voluminous. I have examined it with great care, and have been aided by elaborate written briefs. But I am compelled to confine myself to stating very briefly my conclusions.

The bare statement of the fact of injury received by the Chapman while she was lying properly moored to her wharf, at a distance of twenty feet inward from the end thereof, is enough, prima facie, to establish her right to recover from those who were concerned in the movement of the Helen R. Cooper, which was thrust with violence against her side. The presumption of fault on their part is clear and not merely speculative. The burthen is at once cast upon them to

excuse it.

In judging of the truthfulness, good faith and validity of the excuse which is relied upon, it is not only competent, but it is significant, to observe, that the claimant of the tug, in an answer put in by him at the very outset of the controversy, when the circumstances were recent, averred, that the master of the tug, before he attempted to tow the Cooper, declared to the agent of the latter, that "it was not safe to proceed to sea in that condition of the weather and tide;" that, after the tug made fast to the Cooper, an attempt being insisted upon by such agent, the tug acted under the direction of the pilot on the Cooper, but the Cooper was herself mismanaged in various particulars specified, in such wise that it was impossible for the tug to keep her off the New York shore; and that the damage to the Chapman "was occasioned solely by the negligence, mismanagement and want of care and skill of the persons in charge of the said ship Helen R. Cooper." Here, it will be observed, is not a word or pretence of inevitable accident, or that ice or any other obstacle even contributed to prevent the towing of the ship in a proper direction.

The Helen R. Cooper-The R. L. Mabey.

The claimants of the ship, on the other hand, denying all negligence, &c., on her part, alleged, in their answer, that, after she had been towed from her dock on the Brooklyn side, near the Navy Yard, stern foremost, into the stream, and when she was in the act of turning so as to head down the river, she and also the tug were unexpectedly caught in an immense field of floating ice, which, in spite of the efforts of the tug, set both of them towards the New York shore; that, finding that the said field of ice was too powerful for the steam tug to control the ship, both anchors of the ship were let go; that, notwithstanding this, the ice carried the ship and the tug across and down the river, so that the ship, having finally got pointed down the river, was carried by the ice, so that her bows were carried into pier No. 45, and into the side of the Chapman; that it was a proper time to go to sea and the effort was made in a proper manner and under the care of a skilful pilot; and that the injury was caused in the manner stated, and was an inevitable accident, and, if not, still was caused by no fault of the Cooper. About six months later, the claimants of the Cooper, put in, by way of amendment, an entirely new answer, in which they not only abandon the theory that they were unexpectedly caught in an immense field of floating ice, which deprived the tug of the control of the ship, and which carried both her and the tug over to the New York side, and carried the ship into the Chapman, but directly and in terms contradict such former answer and, in substance, allege that it was false. Thus, they say, that, when the ship was towed out of her dock, "there was considerable floating ice on the Brooklyn side of the East river, but the river was clear for a considerable distance out on the New York side;" that, owing to the floating ice, the ship was turned with more difficulty, but the tug "had got the ship's head turned down the river, angling towards the New York shore, and with most of the ship in clear water, free from ice;" that, while the tug was thus successfully towing the ship, and when the ship was entirely under the control of the tug, a ferry-boat suddenly and improperly crossed the bows of the

The Helen R. Cooper-The R L. Mabey.

tug, and caused her to slow, to prevent striking the ferry-boat, thus slacking the hawser and causing her to lose control of the ship; that the ship, under the impetus of her then headway, shot ahead towards the piers; and that both of her anchors were then let go, but she overran her anchors, dragged them both, and came upon the Chapman, thus doing the damage, &c.

In view of this mass of inconsistency and contradiction interposed for the defence of these two vessels, I think no intelligent and just mind can avoid the reflection, that there is much insincerity and untruthfulness in the attempt made to exculpate them; and when to this is added the fact, now conceded, that the Cooper has assumed the entire defence, and the steam-tug has made no effort to prove the truth of the answer put in on her behalf, in which she cast the whole blame of the transaction upon the Cooper and her negligent, improper and unskilful management, and the further fact, that no witness whatever is produced from the steam-tug, to show that her navigation, or her conduct or control of the ship, was at all hindered or interfered with by any ferry-boat, when, obviously, her master and crew were most competent to speak on the subject, something more than suspicion is warranted, that the theory that a ferry-boat caused the accident has as little foundation as the allegation that the Cooper was unexpectedly caught in an immense field of floating ice, which carried her upon the Chapman.

The counsel for the claimants, with force and propriety, argued, that no condemnation should be had upon suspicion, and that their defence should not be discredited because they found it necessary to amend their answer. Concede all this, and yet, when both answers are sworn to be true by the same party, and one is in direct conflict with the other, when the claimants respectively are in conflict with each other as to the cause of the accident, when no attempt is made to prove by the tug that her movement, or her control of the ship, was impeded or hindered by any fortuitous or unavoidable occurrence or obstacle, the Court cannot enter upon