55 F.2d 921 | 2d Cir. | 1932
The collision occurred in the vieinity of Throgg’s Neck at the entrance to Long Island Sound, shortly after 5 a. m. on October 30, 1929. The Poling Bros, was bound eastward and the Trippe westward, with the tide against her. WMle the Poling Bros, was still in the East River, the commander of the
Upon this appeal the libelant makes no attempt to excuse the Poling Bros., but contends only that the Trippe was also at fault, and that damages should be divided. The position is well taken. It is conceded that the course, though not the headings, of the vessels were head and head, or nearly so. In this situation, rule IV of the Inland Buies applies, and makes it the duty of each vessel to pass on the port side of the other. The rule further provides that “either • vessel” shall signal her intention. Had a passing agreement been reached, the collision at bar would have been avoided. When the Trippe stopped her engines to see what the lighter intended to do, it would have been possible to pass on either side. Instead of reaching an agreement by signals, each navigator attempted to divine the intention of the other. This has so often been held a mutual fault that the citation of authorities seems almost superfluous. See The Ice King, 52 F. 894, 896 (D. C. S. D. N. Y.); The Transfer No. 4, 61 F. 364 (C. C. A. 2); The Mercer, 234 F. 259, 262 (C. C. A. 2); A. H. Bull S. S. Co. v. United States, 34 F.(2d) 614, 616 (C. C. A. 2). The appellee argues that rule IV does not apply because the Poling Bros, had swung so far to port that only her green light was visible when the Trippe’s engines were put ahead. But the vessels had begun to navigate with reference to each other long before this, and admittedly the Trippe’s commander stopped his engines while he was trying to ascertain what the Poling Bros, intended to do. He says that “for a moment I saw just her green light,” and thereupon, thinking he had divined her intention to pass to starboard, he went ahead. The passing agreement should have been reached prior to this; then commander Buckalew would have not had to guess as to the Poling Bros.’ intended course. As this court said in The Bilbster, 6 F.(2d) 954, 956, “A vessel is not entitled to assume that another vessel will pass her starboard to starboard until two whistles are blown and answered.”
It is unnecessary to consider other charges of fault which each vessel asserts against the other.
The decree of dismissal must be reversed, and a decree entered holding the respondent liable for one-half the libelant’s damages.