Carroll v. City of New York

249 F. 453 | 2d Cir. | 1918

HOUGH, Circuit judge

(after stating the facts as above). [1] The, findings below, to the effect that the Haven was exceeding the speed limit and not keeping in the middle of the channel, are supported by evidence, and we acquiesce in them. There was a violation of statutory requirements, and the burden of showing that such violation did not contribute to collision has not been borne; therefore the Haven must be held to liability.

[2, 3] The conduct of the Queens is sought to be justified under The Breakwater, 155 U. S. 252, 15 Sup. Ct. 99, 39 L. Ed. 139. That case does not mean nor say that a ferryboat’s occupation completely frees her from the rules of navigation. It does impose additional duties upon all vessels pursuing their lawful occasions near ferry slips. What shall be the space or region, or the extent thereof, within which these duties are obligatory, is a matter of degree, depending on local and sometimes temporary conditions.

We held in The, Paunpeck, 86 Fed. 924, 30 C. C. A. 494, that a ferryboat, colliding with another -vessel 800 feet from her slip end, was to be acquitted or condemned by the usual navigating rules. That decision is applicable here; in both cases the conditions are those reasonably to be expected in the transaction of maritime business in the crowded waters of New York Harbor. Therefore the starboard hand rule -applied, and the Haven had the right of way. That vessels might be approaching on her starboard bow, to which she must give way, was just as much to be expected by the Queens, as that others would appear to her port.

No reason at all is shown by the ferryboat why she did not see and navigate with reference to the Haven before she did. There is a suggestion — it is far from proof — that the propeller’s light was not good; but there is no denial that navigation with reference to the Haven began when just clear of, or just clearing, the outermost tow. That was too late; collision was imminent. It is urged in excuse that the gale and tide rendered it impossible for the Queens, a large boat of great freeboard, to turn in time to pass under the Haven’s stern or pass her port to port. That may be true, but its truth would have been just as apparent, had the ferryboat seen the propeller and signaled her earlier. As it happened, nothing was done hut to blow » the danger whistles, when the Queens was practically across the hows of the privileged vessel. Probably, when those whistles were blown, nothing could he done; but no man is excused from the result of an unlawful situation, if he is not also excusable for getting into it. This last is the excuse lacked by the Queens; if she liad seen and noted the Haven at the proper time, i. e., substantially when the Haven saw her, we do not think collision would have ensued; at all events the Queens has not shown the contrary, and thereby avoided the result of a fault on her part, as obvious as that of the Haven.

Holding, therefore, the Haven at fault, as found below, and the Queens also negligent, in that (1) she did not timely observe a situation to which (2) the starboard hand rule applied, the decrees below’ are reversed, with one bill of costs to appellants, and the causes remanded, with directions to enter decrees dividing the, damages and lower court costs.