50 F. 590 | S.D.N.Y. | 1892
Before light on the morning of January 28, 1891, as the ferryboat Elizabeth was making one of her regular trips from Liberty street, New York, to Communipaw ferry, Jersey City, slie was run into in about mid river by a car float going up river in tow on the starboard side of the steam tug T. B. Yan Houten, and received damages to her wheelhouse and machinery, to recover which the above libel'was filed.
The tide was ebb; the weather clear, but dark, and good for seeing lights. The Van Houten had come around the Battery and was bound for tho Pavonia ferry, Jersey City, and was heading about N. N. W. The ferryboat, after getting about a third of the way across from the New York shore, had been obliged to stop her engines to allow a steam tug with a raft of logs, in all about 800 to 400 feet long, to pass down ahead of her with tho tide. The ferryboat did not, however, wholly lose her headway; and as soon as the raft was clear, she started her engines ahead, her course being directed nearly straight across the river, but a little upwards. The Van Houten was then probably about 100 or 150 yards further out in the river than the Elizabeth. Soon after starting up, probably about a half a minute alter, tho Elizabeth gave one whistle, and heard a whistle from the Van Houten, which, as several witnesses testify, was understood as a reply. The pilot of the Van Houten testifies that he heard no whistle from the Elizabeth and gave none to her; but that lie gave an answer of one whistle about the same time to a signal of _ one whistle that was received from another tug, the Beach, which was going down river to the westward of both. The pilot of the Elizabeth and other witnesses testify that when the Elizabeth started up after tho raft had cleared, the Van Houten was a quarter of a mile below him. Several witnesses for the Van Houten, including the pilot, make the Van Houten at that time only from 500 to 600 feet below; and such I think is the weight of the testimony and of tho circumstantial evidence.
I have no doubt that the primary fault in this collision was the Van ITonten’s. She had the ferryboat on her starboard hand; she saw and recognized the Elizabeth at an abundant distance, and knew that the checking of her speed for tho raft was but temporary, and that the Elizabeth had the right of way. When she started up on clearing the raft,
I think the ferryboat is also in fault for not giving a timely signal to the Van Houten. The two boats were on crossing courses, and risk of collision was plain, if both kept on. The time when the raft cJeáred and the ferryboat started up, was the extreme limit at which she could be excused for delaying her signal. When she gave her signal about half a minute afterwards, it was too late. The Yan Houten, being incumbered, could not then go astern; and she reversed at once, but could not avoid collision. It is probable that this signal was given at the same time the signal of the Beach was given, as only one signal was heard by the Van Houten, and the Elizabeth did not hear the signal of the Beach. In my judgment the ferryboat’s signal should have been given before the raft had passed; for the ferryboat had way on; the’Van Houten was seen to be much nearer than half a mile, and was in fact less than one-eighth of a mile distant; and the fact that the way of the Elizabeth had been checked by the raft when she was so near the Van Houten, made it specially appropriate that her purpose to go ahead of the latter should be signaled to the Van Houten as required by the inspector’s rules, since without any signal the latter might possibly suppose .the ferryboat would wait till the Van Houten had passed. The Van Houten indeed had no right to count upon it; and it was, therefore, no legal excuse to her for omitting the proper signal on her own part, or for not proceeding as the rules required.
It is true also that the Elizabeth had a right to expect that the Van Houten would keep out of her way; but that was no excuse for the Elizabeth in omitting to give a timely signal in obedience to the inspect- or’s rules indicative of her intent to increase her speed and go ahead. The rules as to signals being authorized, by law (Rev. St. § 4412) have the same force as the statutory rules when not in conflict with the latter. The B. B. Saunders, 23 Blatchf. 378, 387, 25 Fed. Rep. 727; The Dentz, 29 Fed. Rep. 528; U. S. v. Miller, 26 Fed. Rep. 97. They are among the cumulative means provided by law for avoiding collision. Their usefulness and absolute necessity in harbor navigation are attested by daily experience.; and .the failure to observe them in time is one of the most prolific causes of disaster to property and life. Had a timely signal been given by the ferryboat, as late even as when she started up, there is no reason to suppose the Van Houten would not have heard it and gone astern accordingly. For these reasons the damages and costs must be divided; and the libelant is entitled to recover for only one half its loss. . •
