251 F. 356 | D. Mass. | 1918
This litigation arises out of the two Standings of the steamer Bay Port in the Cape Cod Canal. The determination of the causes of those accidents and the responsibility for them will, in effect, dispose of most of the questions presented by the somewhat involved pleadings in the three cases.
The Bay Port was a whaleback steamer, 265 feet long, carrying about 2,400 tons of coal. On the evidence now before the court she appears to have been a staunch vessel, properly manned, supplied, and equipped. No failure of her mechanism entered into either accident. She steered as well as the ordinary whaleback steamer; but vessels of that type do not handle as sharply, nor as well, as those of the usual deep-sea model. She was deeply laden, but not so as to interfere with her ability to maneuver.
The Canal Company signaled that the canal was open for vessels bound east, and by Rochester’s orders the Bay Port got under way and proceeded into the canal. It was about half tide, and there was
The tog and steamer progressed satisfactorily through the first two bridges into the long stretch between the Bourne and Sagamore bridges. At a point about two miles east of the Bourne bridge, the Bay Port swerved (or sheered) slightly toward the norih bank. This sheer does not seems to have been of much consequence. Captain Hammett testifies in reference to it:
“Q. Was the sheer to pert o£ any consequence? A. Not very much— very slight» Q. Was it of any consequence at all? A. What say? Q. Was it of any consequence? A. Why, a little; you could call it of eunKi'qiience or not, just as you like. Q. X want your Moa. A. I say X don’t know. It was very little; 1 couldn’t say whether it was two feet or four feet; it was a little sheer. Q. little sheer? A. Ves, sir.”
After the swing was checked the steamer straightened out and went on a short distance nearer the north bank, and parallel with it,, Her helmsman testifies:
“I know she was some little distance out — out. of the center; * * towards tito port hank, and naming along imrnllel with it, * * She would not swing away from it; * * * clung to the bank.”
An effort was made to bring her back to the center of the channel, and the helm was put to port for that purpose. She seems not to have minded it readily, and ihc amount of helm was increased. Then die Bay Port suddenly left the north bank, and started on a sharp sheer across the canal. The situation was immediately recognized as an emergency; her helm was reversed and put hard astarboard, her engines were backed, and the tug tried to pull her straight. The result of these efforts was that she straightened out, but not before she was so close to the south bank that her bow stranded on it, about her length, or a length and a half, from where the sheer started; and she lay there nearly parallel with the canal. The tide was falling, and the efforts immediately made to pull her off proved unsuccessful. This constitutes the first of the two accidents which figure in the case. The Canal Company suffered no appreciable damage from it.
A short distance west of where the Bay Port struck there was, on the north bank of the canal, a slight projection, the remains of the final dam which separated the two ends of the canal during construction. This projection, or “knuckle,” as it has been called, .did not extend into the channel of the canal, nor far enough out from the bank to constitute in itself any menace to navigation. On a westerly tide it set up a surface current which slanted towards the south bank. It seems probable that, after the Bay Port had begun to turn away from the north bank, she was caught by this current, as well as by the general current in the canal, and that the cross-current was one of the forces which prevented her from being controlled in time to avoid stranding.
The evidence for the Bay Port is that, unless a vessel like her has from 3 to 5 feet of water under her bottom, she is likely to “smell the ground,” as it is called, which interferes with her steering, and may cause her to sheer. The Transportation Company contends that this is what occurred when the Bay Port crossed the shoal above referred to, and was the reason why she swerved towards the north bank; that from that point she was in. effect out of control; and that the shoal was, therefore, the proximate cause of the stranding.
It does not seem to me, however, that the facts support this contention. The eastern edge of the shoal was, as above stated, almost 1,000 feet from where the Bay Port struck. She passed safely over it, and its effect on her steering did not extend beyond the time when the sheer to the north bank — assuming that the shoal caused that sheer, which is by no means certain — was checked. Thereafter she “clung to-the bank,” as her helmsman puts it. Neither he, nor her pilot, nor her captain, all of whom have testified at length in these proceedings, appears to have regarded her situation as dangerous while she was doing so. Her speed was not slowed, nor was the tug called upon for help. The causes of the stranding seem to have been the large amount of port helm, which, by the pilot’s orders, had been given the steamer to bring her away from the bank, the suddenness with which she finally minded her helm, the unexpectedly large swing which she took, and the general current and cross-current in the canal, all of which, acting together, made it impossible to control her in time to prevent her from striking. The “knuckle” and the current occasioned by it were well known to the canal pilots and were customarily allowed for in navigating at that point. Vessels constantly passed it safely. It does not seem to me that the condition of the canal there was such as to warrant a finding of negligence against the Canal Company for permitting the Bay Port to use the canal. The Canal Company was not at fault for the first stranding, which appears to me to have been due, either to pure accident, or to faulty navigation by the pilot.
These changes in her trim certainly did not improve her steering qualities; probably they appreciably impaired them. Capt. Hammett testified:
“Q. And did she steer as well as she liad the day before, or Was she loftier? A. Siie might hare been a little logier; I couldn’t say as to that. Q. A little, logier? A. Might have been a little logier, but steered all right. Q. Did you bare any difficulty in steering ber during' the first half mile or so? A. No, sir; none.”
As the steamer did not take on steerageway until she had floated a considerable distance, it would appear, on her own testimony, that she began to steer badly almost as soon as she began to steer at all. On the testimony of Pilot Lewis, she ran from the very beginning “a very zigzag course.” He says:
“Wo stopped her engines and let her drift as much as we could, because we couldn't do nothing with hex-; she was drifting from one side to the other.”
Capt. Lecompte, who commanded the tug Dalzelline, that was ahead of the Bay Port on a hawser at this time, testifies:
■‘She commenced swinging, you know, backward and forward; she would take sheerr., you know. We bad a short hawser, and we held her straight two or three times before she did land.”
It is charged as a fault against the Scott Company, in the libel and intervening' petition against it, that it failed to make adequate preparations to hold the steamer safely, if she should come off. The evidence that it could not have done so by ground tackle, without greatly delaying salvage work, which would have; been inadvisable, is so clear and convincing that discussion of the point seems unnecessary. As soon as she floated, Pilot Lewis, with her master’s assent, assumed control of her, and the Scott Company had nothing to do with the orders he gave. Its salvage work was for the time being suspended; the steamer went forward on her own account, not under control of the Scott Company as part of the salvage operations.
It was generally understood among all parties interested that, when the Bay Port came off, she should, if possible,' be taken through to Sandwich at the eastern end of the canal. Capt. Hammett testified on this point:
“Q. Was anything said as to tying up at Sandwich, do you remember? A. I don’t know as there was. I think that that was generally understood; that that was where she was to go if she floated; that she was to tie up at Sandwich. Q. Well understood by whom? A. Why, generally understood. 1 think that was talked over; that if she floated, why, I would take her •down and tie her up at Sandwich. Q. When was that talked? A. X think it was talked — might have been the night before, or that day, I can’t say; I just remember some conversation in regard to that matter, in that line. Q. With whom'? A. Why, with Oapt. Lewis and the pilot, and I guess myself; I don’t know but Mr. Gardner (of the Scott Company). The talk was all general; I couldn’t specify exactly just when or who was there. * * Q. Did that seem to you to be the proper thing to flo>? .A- I think so; yes, sir. Q. In the event of her floating, she was to be tied up at Sandwich? A. I think so, yes, sir; that was the general impression,”
The sudden and unexpected floating of the steamer and her being caught by the current in the narrow channel created a serious emergency. Capt. Joseph Lewis, who was at the time on the lighter Salvor, alongside the Bay Port, called to Pilot Lewis on the steamer’s bridge, “She is yours,” or words to that effect, to which Pilot Lewis assented. From that time until after the accident, the Scott Company, as before stated, had nothing more to do with the steamer, and exercised no control over her. Pilot Lewis assumed command of her. By his orders, one of the tugs (the Dalzelline) took a short hawser ahead; another pushed the steamer’s stern straight with the canal, and then took away the lighter; the third tug, apparently without orders, swung out into the current, and started after the steamer, with the idea of getting a line on her stem. The order was given to start the steamer’s engines full speed ahead, in order to obtain steerageway. Meanwhile the Bay Port was drifting along the canal, going in this manner perhaps a third of a mile. Then by the action of her own engines, and of the tug ahead, she obtained steerageway through the water and took on a speed over the ground of about six miles per hour.
Some dolphins where she might have been tied up were passed without any effort to place her there. Shortly afterward, the tug Hazelton came up behind the Bay Port and offered a line to her quarter. The men on the Bay Port were so much occupied that nobody took it. The Bay Port, continuing on, sheered toward and narrowly missed the dredge Trilby at work in the canal. This sheer was broken by the tug and the steamer’s helm. A short distance further on, the Bay Port again sheered toward the south bank, and again the sheer was broken.
About 2,000 feet west of where the Bay Port finally landed, she passed over a shallow spot, much like that above described in connection with the first stranding. There was everywhere on it, except close to the sides of the channel, 20 feet of water at mean low title, and at the time of the accident, the tide being about half up, about 3 feet more; i. e., about 23 feet. Tt is contended by the owner of the Bay Port that the shoal caused her to sheer and was the proximate cause of the accident, and that the Canal Company is therefore liable. This shoal was farther [rom the place of die final accident than the first shoal was from the first accident. Throughout the intervening distance there was at least 25 feet of water at mean low tide. Two separate sheers were taken and broken after passing the shoal before the steamer finally struck. It seems to me that, even if the shoal be regarded as a negligent obstruction in the canal, it was not the cause of the accident.
Prom what has been .said, it follows that the charges of negligence against the Canal Company by the Transportation Company have not been sustained, and that the libel against it must be dismissed. No charges are made here by any party against the pilots; tlieir conduct need not be further scrutinized. The Scott Company was not negligent in failing to hold the vessel to the bank. When she floated, it immediately surrendered her to her master and pilot, who accepted her without objection; thereafter it exercised no control over her movements. No sufficient reason appears for holding it at fault in any respect. The libel and the intervening petition against it must be dismissed.
The failure to tie up at the dolphins which were passed before the accident seems hard to justify on the evidence before the court. They were reached after the first crisis of the emergency had gone by, and there had been time to consider what should be done. With the help of the tugs and her own engines the Bay Port could easily have been placed at. them. While there, she would, however, have substantially obstructed the canal; and I have no doubt that, in failing so to deal with her, Pilot Lewis had in mind Capt. Geer’s instructions to get out of the canal, if possible. It does not appear that Capt. Hammett knew about the dolphins before reaching them ; and he testifies that even now he could not say whether it would have been safe to tie the Bay Port to them, or not — a statement which I believe. Considering all the circumstances, I think Capt. Hammett was not negligent for not preventing Pilot Lewis from attempting to take the ship through to Sandwich.
The charge of fault against the Transportation Company for not sooner removing the wreck has not been argued, and on the evidence before the court it does not appear that the Transportation Company was negligent in that respect. The libel of the Canal Company against the Transportation Company must also be dismissed.
In view of the possibility of appeal, there ought, perhaps, to be
Decrees accordingly.