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and her tow. Through the carelessness of both of the persons in charge of the L. P. Dayton and of the James Bowen and the scow, the said tows were not kept clear of each other, though there was ample space of water in which to have done so, but were so negligently handled that the float or scow aforesaid bore right down on and struck full on her stem the boat Centennial, staving in her whole bow and causing her to sink in about ten minutes.

"Your libellant and his son were on board the Centennial at the time of the collision, but it was not possible for them to do anything to prevent the same. The Centennial was entirely under the control and subject to the direction of the tug-boat L. P. Dayton, having neither propelling nor steering power of her own.

"Your libellant alleges that both the steam-tugs aforesaid were in fault in the following respects:

"First. Neither tug-boat observed the signals of the other, the observation of which might have and would have prevented danger.

"Second. Neither tug-boat made use of the proper signals for avoiding a collision in time to avoid the same.

"Third. The tug-boat Bowen did not reverse her movement, or did not do so in time to prevent a collision.

"Fourth. Neither tug-boat was provided with a suitable and competent watch at and before the time of the collision. "Fifth. The tug-boat James Bowen improperly changed her course before the collision, having put her wheel to port and made an effort, apparently, to pass under the bows of the Dayton and her tow.

"But your libellant alleges, in general, negligence against both the said tugs, and requires them to make definite answer of the facts pertinent to the collision, which will clearly show either that both were equally to blame, or to blame in unequal degree, though neither entirely free from blame; but, for the reasons above mentioned, your libellant's boat, the Centennial, was in nowise to blame or responsible for the collision aforesaid."

And also alleged negligence against the steam-tugs in addition, as follows:

Statement of Facts.

"That on the night and at the time of the collision the tide was a strong ebb, that the tug Bowen and her tow were proceeding against the tide, and that it was negligence in her not to have kept more to the westward than she did, and thereby have avoided the tug Dayton and her tow, as might easily have been done had the proper care been used in observing the Dayton's lights and signals.

"And, further, that the said tug Bowen and her tow kept too near the New York shore in rounding the Battery and making up the North River.

"That the tug Bowen was also negligent in respect of not having a proper light set on her port side, or in permitting the same to be covered and obscured by certain cars or carriages at that time on the deck of the float, which was on her port side.

"That the tug Bowen was also negligent in not answering the signals of the tug Dayton when they were approaching each other.

That the tug Dayton was at fault in proceeding at too great a speed, the tide being a strong ebb and the wind northwest.

"That the tug Dayton was likewise negligent in not having a proper light set on the extreme starboard and forward end of her tow.

"That the person in charge of the wheel of the Dayton at the time of and before the collision was unfit for such duty, being a man of near and imperfect sight, and generally incompetent.

"That the tug Dayton, after twice blowing her whistle, did not keep on her course, but ported her wheel and went to starboard, showing her red light to the Bowen and the float before reversing and attempting to go back.

"That neither the Dayton nor the Bowen had a watchman or lookout on her forward deck."

Hugh J. Jewett, Receiver of the Erie Railway Company, claimant of the float or scow called Number Four filed his answer on her behalf, in response to the charges of the libel. It was admitted, however, that no cause of action appeared

Statement of Facts.

against the scow Number Four both in the courts below and upon the argument in this court. It is, therefore, not necessary to consider the answer filed on its behalf.

Daniel Shea intervened as owner of the tug James Bowen, and answered the charges of the libel as follows:

"Third. That this respondent has no knowledge of the matters contained in the second article of said libel preceding the allegation in the said article contained, to the effect that the boat Centennial was run into by the float or scow Number Four, and he therefore neither admits nor denies the same, but leaves the libellant to make such proof thereof as he may be advised; that, so far as the allegations of the said article relate to the collision between the said boat Centennial and the float or scow called Number Four, which occurred on the 14th day of February, 1879, and the causes thereof, this respondent, upon information and belief, denies the said allegations of said article, and each and every one of them, except so far as the same are hereinafter expressly admitted.

"And this respondent, upon information and belief, says that the facts in respect to said collision and the causes thereof are as hereinafter stated, and not otherwise, that is to say:

"On the evening of the 14th day of February, 1879, at about half-past six o'clock, the said steam-tug James Bowen, at Williamsburg, in the waters of the East River, took in tow the said float or scow Number Four, the said float or scow being lashed to the port side of said tug James Bowen, and the said tug James Bowen, with the said float or scow in tow as aforesaid, proceeded down the East River, bound for Long Dock, Jersey City; that the tide was ebb, the wind moderate from northwest; that the said tug James Bowen and the said float or scow were both stanch, properly manned and equipped; that the said tug was provided with a bright headlight on the forward end of her house, and with red and green lights on her port and starboard sides respectively, and with two white lights on the flagstaff aft, and that the said float was provided with a white headlight near the bow, all of said lights being properly placed and burning brightly; that the said tug James Bowen was provided with a compe

Statement of Facts.

tent pilot and lookout, properly placed on the tug, and that a lookout was also stationed forward on the roof of the float or scow; that the said tug James Bowen, with the said float or scow in tow as aforesaid, proceeded down the East River to the Battery, and on rounding the Battery into the North River encountered considerable ice, and in consequence was running very slow; that after getting clear of the ice the said tug, with the said scow in tow as aforesaid, was headed for the Jersey City abattoir. At this time there was outside of the said float, and about one hundred feet distant from the port side thereof, the steam-tug W. H. Vanderbilt, with two barges in tow astern on a hawser; that said tug W. H. Vanderbilt, with her said tow, was proceeding in the same direction and at a little faster rate of speed than the James Bowen; that after the said James Bowen, with the said scow or float in tow, had gotten into clear water and was heading as last aforesaid, a boat was discovered by her pilot coming down the river with a tow, which subsequently turned out to be the L. P. Dayton; that at the time the said approaching tug and tow were discovered the green light of the tug L. P. Dayton was visible, and she appeared to those in charge of and navigating the tug James Bowen, including the lookout on the float, to be going to the eastward, between the said James. Bowen and the New York shore, which was then about three hundred yards distant. At a proper distance the pilot in charge of the James Bowen blew two blasts of his steam whistle, to which the approaching tug, L. P. Dayton responded with two blasts of her whistle, and the pilot in charge of the said James Bowen thereupon put his wheel to starboard, heading as close to the westward as could safely be done without danger of colliding with the tug W. H. Vanderbilt or the barges in tow thereof, which were, as before stated, on the port side of the said float, heading in the same direction; that notwithstanding the signal which had been given by the James Bowen, and which had been answered by the L. P. Dayton, the pilot of the said L. P. Dayton, instead of keeping his course or putting his wheel to starboard so as to pass the said James Bowen on her starboard side, so

Statement of Facts.

changed his course as to shut out his green light and bring his red light in view of those navigating the James Bowen; that thereupon, it being evident that the said tug L. P. Dayton could not cross the bow of the James Bowen and of the said float in tow thereof without imminent danger of collision, the pilot in charge of the James Bowen immediately rang his bells to slow, stop, and back; that said signals were promptly answered by the engineer of the James Bowen, and that at the time of the collision the heading of the James Bowen and of the float in tow thereof was about stopped, and that those in charge of the said L. P. Dayton and the canal-boats or barges in tow thereof so navigated the same that the bow of the canal-boat or barge on the starboard side of the L. P. Dayton was brought into collision with the bow of the said float or scow Number Four with such force as to break the tow-line from the said scow or float Number Four to the James Bowen, and to crush in the bow of the said barge or canal-boat on the starboard side of the L. P. Dayton, and that, as this respondent is informed and believes, the said barge or canal-boat was the barge or canal-boat called the Centennial in the libel in this cause mentioned, and that in consequence of said collision the said barge or canal-boat Centennial subsequently sank; that the place where the said collision occurred was about opposite Pier 1, North River, and from three hundred to three hundred and fifty yards from the head of said pier.

"And this respondent, upon information and belief, says that the said collision was in no way occasioned by any fault. on the part of the said float or scow Number Four, or of the said tug James Bowen, or of those in charge thereof, but was occasioned by and due wholly to the fault of those navigating and in charge of the said tug L. P. Dayton and the said barges or canal-boats in tow thereof in the following respects:

"1. That the pilot in charge of the tug L. P. Dayton and of the said canal-boats in tow thereof, including the said Centennial, was not a competent person for the purpose, being a man of near and imperfect sight and generally incompetent.