34 F. 546 | S.D.N.Y. | 1888
On the 19th of November, 1886, between 9 and 10 o’clock in the forenoon, as the English steam-ship Beaeonsiield, outward bound from Dow’s Stores, Brooklyn, was going out of the East river, she came in collision off pier 1, with the French steam-ship Britannia, bound up the East river. The Beaeonsiield was 270 feet long, her gross tonnage 1,736 tons, and draft 211 feet. The Britannia was 837 feet long, her gross tonnage 2,442 tons, and draft 17 feet. The collision was at an angle of from five to seven points. The stem of the Britannia struck the port side of the Beaeonsiield, a little aft of amid-ships, and penetrated about five feet, doing damages to both ships and cargo, amounting as alleged to 8115,000.
The first two suits are cross-libels brought by the owners of the steamships to recover their respective damages, each alleging that the other was wholly in fault. The third libel was filed by the owners of tlie cargo to recover the sum of $45,000 damages against the Britannia alone. Lpon her petition, under the fifty-ninth supremo court rule in admiralty, the Beaeonsiield was brought in as a party defendant. The chief faults alleged against the Britannia are that she ran too near Governor’s island, and attempted to make too short a turn into the East river; and that she did not stop and back in time, nor keep out of the way of the Beaeonsiield, as she was bound to do. The Britannia alleges that she took all proper measures to keep out of the Beaconsfield’s way, and would have done so, by going safely astern of her, bad not the latter thwarted those measures by her own misconduct in unjustifiably stopping in the
The tide was the last of the ebb, and the water lower than usual. There was, however, some current, estimated at the rate of about a knot an hour, which, as the Britannia drew above Fort William, struck her starboard bows and retarded somewhat her swing to starboard, under her port wheel. This was probably soon after one of the whistles of the Britannia had been heard on the Beaconsfield. The pilot and master of the latter, seeing that the Britannia was slow in changing her course to starboard, reversed, as above stated, when about 1,500 feet distant, and at the same dime gave a second signal of one blast of the whistle. “Directly after the order to reverse,” as the master testifies, “he saw that the Britannia was swinging more to starboard. She was then about four points on his port bow.” The Beaconsfield’s engines were, however, kept reversed until her motion in the water was nearly or quite stopped, running, as her master estimates, about two lengths, and occupying, as he thinks, about two minutes; and from that time till the collision, i. e., from one to two minutes more, she remained nearly still. When the Beaconsfield was seen to have stopped in the water, or nearly so, about five or six hundred feet distant, the Britannia’s engines were reversed, and from that time they were kept reversed until the collision, when the
As respects the Beaconsfield the main controversy has been whether she was, under the circumstances, legally justified in slopping as she did. The Beaconsfield invokes rule 21, § 4233, Itev. St., which provides that “every steam-vossoi, when approaching another vessel so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse.” This rule does not require a, vessel to stop or reverse unless (1) the vessel is approaching another so as to involve risk of collision; nor (2) unless stopping and reversing are necessary. The word “reverse,” used in connection with the word “stop,” shows that both words have reference to the engine, and that oven stopping the engine is not required unless that be apparently necessary. The words “if necessary,”" as they stand in this rule, do not grammatically qualify? the direction to “slacken speed.” In article 18 of the new rules the words “if necessary” are transposed to the end of the sentence, -presumably for the purpose of qualifying both the previous clauses; and as no reason is apparent why a vessel should bo required to “slacken speed” when it is not necessary, or apparently necessary, to do so, the change of phraseology? in the new rule might well be regarded as showing the intention of the former rule. That question is not involved here, as we have to do, not with slackening speed, hut with stopping and reversing. The Britannia contends, however, not only that there was no “necessity” for stopping, hut that there was no “risk of collision” till the Beaconsfield created that risk by her own misconduct in stopping her headway.
The evidence leaves no doubt in my mind that there was no actual “necessity” for stopping, and no actual “'risk of collision” when the Boa-eonsfield reversed; and that had she kept a steady course, the Britannia, «ven without reversing or stopping her engines, would have passed her
The immediate cause of the collision I must therefore find to have been the Beaconsfi eld’s reversing when the two vessels were about 1,500 feet apart. This maneuver thwarted the Britannia’s efforts, and was not justifiable for the following reasons: In order to prevent the confusion and fatal results that would often arise-from conflicting orders, if both vessels were to undertake the duty of avoiding each other, the rules of navigation impose upon one of them primarily the whole duty of taking active measures “to keep out of the way,” and require the other “to keep her course.” Old Rules, 19-23. The former is bound to shape her course with reference to all the circumstances. 'Good judgment and careful handling are often necessary to avert disaster. In selecting the mode of keeping out of the way, the speed of both vessels is as necessary to be taken into account as their courses. This is the
“The duty of the steamer (to keep out of the way) implies the correlative duty or obligation of the ship to k<»°p her course, and to do nothing to mislead.”
In The Illinois, 103 U. S. 299, the court say:
“But the sailing vessel is under just the same responsibility to keep her course, if she can, and not embarrass the steamer while passing by any new movement. The steamer has the right to rely on this as an imperative rule for a sailing vessel, and govern herself accordingly. ”
See, also, The Free State, 91 U. S. 200, 205; The Adriatic, 107 U. S. 512, 2 Sup. Ct. Rep. 355; Mars. Col. (2d Ed.) 414. These observations are ordinarily just as applicable to a steamer that is required to keep her course, as to a sailing vessel. The reasons are the same, and in my judgment rule 21 creates no exception in the case of steamers; certainly none as respects stopping and reversing, except where special circumstances make it “necessary.” It is to bo observed, first, that none of the rules are to be taken absolutely or independently of the rest. They are to be construed and applied together, and with reference to each other, and to their common design, viz., to prevent collision. The Cayuga, 14 Wall. 270, 276; The Sunnyside, 91 U. S. 208, 214, 218; The Benares, 9 Prob. Div. 16; The Columbia, 25 Fed. Rep. 844. Hence when observance of a rule would plainly tend to bring about a collision which departure from the rule would avoid, departure becomes a duty. The case, then, falls under the exception of rule 24. Articles 23 and 24 of the new regulations in like manner expressly recognize the duties arising from the ordinary practice of seamen, and from the special circumstances of the case. It is well settled that although the crossing rule (16) and the approaching rule (21) use the same words “so as to involve risk of collision,” they do not come into operation contemporaneously. A vessel bound to keep out of the way, and crossing another’s course “so as to involve risk of collision,” if she adopt timely and sufficient measures for that purpose by the use of the helm, is not bound by rule 21 to slacken speed also. The Jesmond, L. R. 4 P. C. 1; The Free State, 1 Brown, Adm. 251, 268. 91 U. S. 200, 205; The Beryl, 9 Prob. Div. 137, 142. The other ves
1 feel bound to hold, therefore, that the Beaconsfield, in stopping her headway, broke rule 23, which required her, under the circumstances, to keep her course; that where a common understanding by signals has been had, and the vessel bound to keep out of the -way is taking sufficient measures accordingly, as the Britannia in this case did, rule 23, and the implied legal obligation of the privileged vessel to do nothing to thwart the oilier, -are controlling; and that rule 21 does not, in such a case, authorize stopping and reversing, unless special circumstances that subsequently appear make stopping and reversing necessary. A certain time is required and must be allowed for the execution of the maneuvers agreed upon, necessarily varying according to the circumstances. When the maneuver involves a swing from pointing ahead to going astern of the privileged vessel, considerable time is necessary. While the proper maneuver is pending, after an understanding by signals, the privileged vessel has no right to assume that the oilier vessel is not executing it properly, or that there is any risk of collision under rule 21. The agreement for the time being presumptively terminates the risk of collision, and rule 21 does not come into operation. The Free State, 91 U. S. 204; The Clement, 2 Curt. 368; The Northfield, 4 Ben. 117.
But it may be that alter such an understanding by signals has been had, tiie movements of the vessel bound to keep out of the way may, in consequence of miscalculation, unforeseen circumstances, or fault, be so tardy, ineffectual, or contrary, as .justly to renew apprehension of collision, in spite of the previous agreement for avoiding it. Such, it is claimed on the Boaeonslield’s part, was the present case. It was by reason of the uncertainty of her officers as to the other’s course, no doubt, that she was stopped and backed. Nor have I any doubt that under the circumstance's, and in the apparent situation, this renewed apprehension was natural and reasonable. But I cannot bold that the circumstances were so urgent as to warrant a contrary maneuver that tended to defeat the agreement that was already made and presumptively in course of execution. The stop being, as I have said, under the circumstances, a violation of her obligation to “keep her course,” the burden of proof is upon her to show its necessity, and that it was reasonably calculated to avert the danger; both because stopping was a departure from rule 23 of the statute, and because it tended to thwart the Britannia’s efforts. Mars. Col. (2d Ed.) 413, 414, 431 and cases there cited. Even if there were no regulation providing for such a case, I should hold that mere doubt and apprehension are not enough to justify such a thwarting maneuver. This was emphatically stated by Blatchford, J., in the case of U. S. Grant, 6 Ben. 465, 467. There must be a reasonable certainty that the vessel bound to keep out of the way is not doing her duty, and cannot or will not keep away in the manner agreed on, before the other vessel can be held authorized to violate the pending agreement and her legal obligation under it, and to take the matter into her own hands by executing a conflicting maneuver. If that were allowed, the rules would
In this case, though there was reasonable doubt and uncertainty, through the Britannia’s delay in swinging, and through her continued approach towards the north side of the river, where she had no right to come, yet when the Beaconsfield reversed, the case was fin- short of any reasonable or apparent certainty that the Britannia was not otherwise doing her duty, or could not avoid her by going astern as agreed on. The fact was quite the contrary. She was doing all she could. The time since the exchange of signals was short. Her officers say she did not swing to port at all after the signaling, but was swinging to starboard all the time. Their means of knowing were best. The Beacons-field’s pilot finally estimates the swing to port at half a point. I do not think he could distinguish a change so slight. The tide coming against the starboard bow first would, of course, make some delay. But that influence would continue for about a length only, or a little over half a minute. The high wind would make some additional delay in her swinging. The pilot of the Beaconsfield says that he expected and looked for that. “Seeing more of her broadside” was the natural result of the nearer approach. The agreement to go astern was understood. No subsequent signal to the contrary had been given by the Britannia, ■whereas such a signal must have been expected by the pilot of the Bea-consfield in case of any change of purpose by the Britannia; and the master and pilot do not say that they believed she had made anjs change of purpose. The agreement for her going astern was therefore still in full force. The Britannia was still at least a quarter of a mile distant in a direct line, and considerably more than that by the paths on which the vessels were approaching each other. She was at least four points on the Beaconsfield’s port bow, and the pilot and master of the latter could not know how rapidly the Britannia could swing after the first effects of the wind and tide were overcome; nor were they charged with that responsibility. The reasons for stopping, given by the master and pilot, are stated in a loose and unsatisfactory manner. They do not say that they thought she was going ahead of them, nor even that they were uncertain which way she would go. But such uncertainty is, I think,
But the case does not rest upon the general rules of navigation onlyi Supervising inspectors’ rule 3 provides for just such cases of doubt and uncertainty. The uncertainty, doubtless, was as to whether the Britannia would, after all, go astern, or ahead, or collide; i. e., the doubt and uncertainty were as to her “course.” Buie 3 in that case requires that the pilot, who is thus in doubt, “ shall immediately signify the same by giving several short and rapid blasts of the steam whistle, and If the vessels shall have approached within half a mile of each other, both shall immediately be slowed to a speed barely sufficient for steerage way until the proper signals are given, answered, and understood, or until the vessels shall have passed oacb other.”
It is plain that the pilot in this case did not observe this rule, nor act with any reference to it. He did not give several blasts of the whistle, but one blast only, i. e., his original signal, which meant that he would pass ahead; and yet lie stopped his boat, a maneuver directly contrary to the meaning of that signal, and ported his wheel, which, the master says, worked true while the steamer had headway.
But if the order to reverse had been justifiable when given, the Bea-consfield was bound to act with consistency, and to adhere to her maneuver till she was out of danger; or if the order was found to be erroneous, to remedy the error by countermanding it and going ahead again as soon as possible. She did neither, but continued reversing for about one or two minutes, till she came to a substantial stop, right in the Britannia’s path; and then lay still about a minute and a half more till struck, despite anything the Britannia could do. The master says that “directly after the order to reverse was given the Britannia was seen to be swinging more to starboard.” He should therefore instantly have countermanded his order to reverse, or kept on reversing till out of danger. There was nothing in the way to prevent either, and either would have averted this disaster. After the vessel was stopped, and when the real danger became evident, he v'as, moreover, bound to do -what he could to avoid it; but he lay still and did nothing. He neither went ahead nor backed, when either wrould have prevented collision. In this I think the Beaeonsfield violated a duty that was reasonably obvious. Mars. Col. 425,426. The Beaeonsfield is therefore to blame (1) for not “keeping her course” as required by old rule 23, but thwarting the Britannia’s efforts to avoid collision bj^ backing'without the justification of auyrule or regulation, and without reasonable or apparent necessity; (2) for adopting this conflicting and dangerous maneuver, after an understanding to the contrary, Avithout notice to the Britannia of her intended change; (3) for lack of any firm or consistent course on her part after-Avards; and (4) for doing nothing to avoid collision during a considerable time after she had-come to a stop, Avhen the real danger became evident.
The Britannia. The evidence, in my judgment, does not establish any fault in the Britannia, after the first signals were exchanged, aside from her near approach to Governor’s island, Avith her heading about N. N. E., and its effect on her subsequent course. It is clear that her Avay AA’as nearly stopped when the vessels struck. Her officers testify, and
“It is not necessary to consider what was done by the respective vessels when they were some distance from each other; as it is clear they had ample time and opportunity to adopt every needful precaution to avoid the collision after it must have been apparent to both that they were fast approaching each other from opposite directions.”
The same question was elaborately considered in the house of lords in the case of Cayzer v. Carron Co., 9 App. Cas. 873, where it appeared that the steamer Clan Sinclair, by not easing her engines as early as she should have eased them, in rounding a bend in the Thames, where vessels were not intended to meet, had come into collision with another steamer, and it was held, reversing the court of appeal, that she was not liable; because the two wore seen by each other in ample time to avoid collision by ordinary care; and the proximate cause of the collision was held to be the reckless attempt of the other steamer to pass where there was not room for her to go. See The Nereus, 23 Fed. Rep. 457. But where sailing in a part of the river prohibited by statute, or forbidden by reasonable prudence, prevents the vessels from being seen in time, or causes unreasonable obstruction or embarrassment in the performance of their respective duties, or in any other way actively contributes to the collision, the violation of the statute or regulation becomes material, and the offending vessel is responsible. The Favorita, 1 Ben. 30, 39, 8 Blatchf. 539; The Maryland, 19 Fed. Rep. 551, 556; The Sam Rotan, 20 Fed. Rep. 333; The Doris Eckhoff, 32 Fed. Rep. 556; The Yourri, 10 App. Cas. 276. In the case of The Dentz, 26 Fed. Rep. 40, 29 Fed. Rep. 525, in which the tug Dentz with three canal boats lashed alongside in passing through Hell Gate had, by her whistles, assented to the Plymouth Rock’s passing on the port side of her in going through Hell Gate, where the inspectors’ rules prohibited two boats passing, and a collision ensued, this court held the Dentz in fault for assenting to dangerous navigation in violation of the inspectors’ regulation, and in part responsible for the collision; because, having given that assent, she did not go to the starboard side of mid-channel, which was unobstructed, so as to give the Plymouth Rock sufficient room for her necessary turn in that dangerous passage. In the circuit court this view of the maritime fault of the Dentz, in assenting to the violation of the regulation, “was fully approved;” but the Dentz was absolved from responsibility, because, upon the facts, it was held that the collision was brought about by the haste and recklessness of the Plymouth Rock; and that the latter did have “sufficient room on the port side” without requiring the Dentz with her three other boats alongside to leave the mid-channel. The duty of the Dentz, under the-circumstances, to give the Plymouth Rock “sufli-
“ When it appears that the Dentz has violated a rule which it was her duty to observe, she must assume the burden to show not only that it did not probably contribute to the disaster, but that it certainly did not.”
Thai, rule is applicable in this case to the Beaconsfield and tho Britannia alike. This case differs from those in which the faulty situation of one of the vessels was held to be immaterial, in this respect; that in those cases the faulty situation existed'at tho beginning, and was fully known. The duties of eaoh had reference to the known situation. Hero the Britannia was at first on the proper side of the river, and the pilot of the Beaconsfield is not. chargeable with knowledge that with her position and heading she could not round within tlie southerly half of the river where she was required by law to go. He could not tell exactly what her beading was, or liow quick she could turn. He had a right to roly on her keeping oil the southerly half of the channel; and as ho was on the northerly side, there would in that case be abundant clearance. But it soon appeared that the Britannia could not keep within the south half. She had to turn some five or six points. Her continued approach towards the north half of tho channel, with no perceptible turn, and still pointing ahead of the Beaconsfield raised reasonable apprehension and doubt as to her eventual course; and this apprehension led to the faulty orders that brought about the collision. It was tho original fault of the Britannia in coming too near Governor’s island, and in not shaping her course properly, so as to head the Easi-river tide sufficiently to enable her to observe both the statute and the obligations of reasonable prudence, in view of the many vessels constantly coming down past the battery in the northerly half of the channel, that caused the uncertainty and apprehension of the Beaconsfieid’s officers, and thus led to the collision. It was not the immediate cause of collision; hut, as it seems to me, it was a direct, contributing cause. Again, it has often been hold that a vessel bound to keep out of another's way is bound to do so by a reasonable margin, so as not to oxeite undue apprehension of danger. Whore one vessel is put in very great and imminent peril through another’s fault, by not allowing such a margin for safety as might and ought to have been given her, the whole blame is put upon the latter for her fault in bringing the other into such peril; though the collision may have been immediately caused by an error committed by the latter. These are cases in extremü. The Favorita, 8 Blatchf. 539; The Columbia, 9 Ben. 254, 258; The Laura V. Rose, 28 Fed. Rep. 104, 109.
This is not a case of error committed through fear in extremis. But the same principle, as it seems to me, must he recognized as applicable in some measure, where the apprehension of danger, though not amounting to a legal justification, has in fact directly led to the collision; and where that apprehension has been caused, as in this case, by a maritime fault of the vessel bound to keep out of the way, in her unexpected and near approach to the other vessel, in a part of the river where the former was forbidden to go and was not expected to come. In such a case the
“If that conduct on the part of the Clan Sinclair (getting further down the Thanies than she ought to have been) had been such as to place the Margaret at this disadvantage, to throw her into difficulties, and make it doubtful what course she ought to pursue, then I could hardly have excused the Clan Sinclair from contribution to the collision in the present case.”
In the subsequent case of The Yourri, 10 App. Cas. 276, where that vessel was improperly going down river on the left-hand side, in the night-time, when there was “a certain degree of mist,’’and there collided with the Spearman coming up without any lights, both were held to blame. The fault of the Yourri it was said “could hardly admit of dispute.” The circumstances I have mentioned, seem to me, in the language of Mr. Justice Nelsoít, in Cramer v. Allen, 5 Blatchf. 250, to “bring the case within the reason of the rule of apportionment.” I am satisfied, moreover, that the construction above given is in the interests of safe navigation about the Battery; that it is practi catty necessary, in order to insure a due observance of the statute, and the avoidance of collisions; and that the contrary rule would leave the statute without effect where its application is most specially needed.
I do not find it necessary to refer to the other questions discussed in the argument. Decrees may be entered in accordance herewith, with a reference to compute the damages.
Norn. I use the word “privileged” for the sate of brevity only. But the duty of one vessel to “keep her course” is not intended by the rules as a privilege conferred, but as an obligation imposed, in order to enable the other vessel with certainty to keep out of the way. Per Blatchjtokd, J., in The Columbia, 25 Fed. Rep. 845.
It is often stated that upon reversing the screw the action of the rudder, even while the ship has headway, is, though feeble, the reverse of its normal action. See Mars. Col. (2d Bd.) 396, 397; Whit. Nav. Arch. 605. Masters usually testify in general terms to that effect; but few have made any actual experiment with their vessels, so as to testify with any exactness or certainty. Careful experiments made with The Aurania, 29 Red. Rep. 99, 121, 122, showed that during the first minute after reversal the action of the helm vras true and normal, though reduced. The same was deemed established in the case of The Hanger, L. R. 4 P. C. 519, 527. See The Nacoochee, 22 Fed. Rep. 855, Tn this case it is noticeable that both masters testified that so Jong as their ship had headway the helm worked true. This is probably correct for only the early part of i he period oí reversing. When the engine is reversed, the race of water from the propeller runs forward; and the rudder blade, meeting less resistance from the water has Less effect in swinging the ship’s stern. When the ship’s headway is so diminished, and the forward race so strong as to draw the water wholly away from the forward side of the rudder, its effect wholly ceases. How soon this' happens after reversing depends in part upon the relative position of the rudder and the screw, and may therefore differ in different vessels,, though probably not greatly. The effect of the screw upon the heading arises from the unequal lateral thrust of the propeller blades in the upper and in the lower half of the circle of revolution. When the vessel is light, and the blades come near the surface, so as to churn the water, the resistance of the water in the upper half of the revolution is materially less than in the lower half; so that there is a preponderance of resistance by the wTater below, that presses the stern opposite the direction of the lower half of the circle of revolution; ■». e., head to port, with a right-handed screw working ahead, and in the opposite direction when working astern; and with a left-handed screw, the reverse. When the steamer is well loaded, and the propeller deeply immersed at the top, the difference of resistance above and below is slight, and the propeller has then little effect on the heading.