Damages were claimed in this case on account of a collision which occurred in East River, on the ninth of December, 1863, between the canal boat Kate McCord, and the steamboat Joseph Johnson, whereby the canal boat and her cargo, consisting of seven thousand bushels of wheat, were greatly injured.
Prior to the commencement of her trip, the canal boat was lying in the Atlantic basin at Brooklyn, and the proofs show that she was heavily laden, and that she was taken in tow there by the steam propeller William F. Burden, to be towed up the river to pier forty-four, on the New York side of the river, for the purpose of discharging her cargo and delivering the same on board of the ship Whampoa, then lying at that pier. She was lashed to the port side of the propeller, and when the collision occurred, the propeller with the canal boat in tow was proceeding up the river to the place where her cargo was to be transshipped.
Loss was sustained by the owner of the canal boat and by the owners of her cargo, and they joined in the same libel, claiming damages, as well of the propeller to which the canal boat was lashed as of the steamboat Joseph Johnson, which collided with the canal boat, and which was the immediate cause of the injury both to the canal boat and her cargo.
Lashed to the propeller as the canal boat was, she was as entirely under the control of the propeller as if she had been a part of that vessel. When they were proceeding on their course up the river, the Johnson, with two unladen canal barges in tow, one on each side, started from Corlear's Hook, on the New York side, on a trip down the river, inclining, however, towards the Fulton Ferry dock, on the Brooklyn side, to a point just below the lower slip of that dock, where she intended to take another boat in tow. When the boats started on their respective trips it was about eleven o'clock in the forenoon, and the tide at that time was half ebb, with a strong current in the channel of three miles an hour.
Vessels of that description proceeding up the river on that side, in that state of the tide, usually keep close to the shore, as they by that means avoid the downward current in the stream, and get the aid of the eddy or reflex tide near the shore, which facilitates their progress, and the evidence shows that the propeller, with the canal boat in tow, was proceeding up the river along that shore in the track usually pursued by steamtugs in performing towage service under those circumstances.
Boats descending the river at ebb tide usually select the middle of the channel, as their speed is much aided by the current, and the witnesses generally concur that the Johnson, until just prior to the collision, was proceeding down the river in a course much nearer the centre of the stream than the ascending boat with her tow lashed to her port side.
Aided by the current the speed of the descending boat was seven miles an hour; but the propeller with the canal boat in tow was not able, in ascending the river, to make more than three or four miles an hour.
Whatever may have been the cause, it is admitted by the master of the Johnson that he did not see the propeller until she was opposite the slip next above the ferry slip, and he also states that the propeller, at that time, was about the same distance below the ferry that the Johnson was above that point, and of course they were not far distant from each other.
They were approaching at a combined speed of ten or eleven miles an hour, but not exactly from opposite directions nor on lines precisely parallel, as the Johnson was nearer to the centre of the stream than the propeller, and her course was inclining towards the Brooklyn shore. Strong doubts, however, are entertained whether the vessels would have collided if both had kept their course, but it is not necessary to decide that point, as it is conceded that the helms of both were changed before the collision occurred.