84 F. 508 | 2d Cir. | 1898
The Shultz, which is a moderate sized tug, about 70 feet long, with the schooner Amos Briggs (about 310
That the Shultz was grossly in fault is manifest upon her own evidence and upon that from her tow. They were on crossing courses, and the Shultz had the Little Silver upon her starboard hand at the time when it became necessary for them to navigate according to regulations if they were to avoid risk of collision. This is the testimony of the independent witness from the tug Townsend. There is nothing to contradict it, and it is apparent from (heir points of departure and respective destinations that such must have been their relative positions. The engineer of the Shultz placed the models to show their positions, “putting the Little Silver a little aft of his beam, and heading for the bow of tin; Shultz.” The master of the Shultz also placed the models indicating that the Little Silver was “nearly seven points on his starboard bow.” Counsel for flie Shultz contends that the vessels were in the position known as the “seventh situation” of the inspectors' rules. Of course, by the time the Shultz had crossed the bows of the Little Silver sufficiently far to leave the latter heading directly for her and just abeam, the vessels would be in the seventh situation; but the obligation to navigate according to rules arose before that time, and the pilot of the Shultz knew that it had, for it was while they were on crossing courses, with the Little Silver on his starboard hand, that he blew his first signal. lie said: “I saw him coming up the bay a good safe distance, and I blew Mm two whistles.”
Counsel further contends that “fault is not chargeable against a vessel for having another on her own starboard hand.” That is true enough, but she is in fault if she does not navigate in accordance with the regulations governing the movements of vessels thus placed. Rule 19 of section 4233 of the United States Revised Statutes provides: “If two vessels under steam are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.” That rule has since its first enactment been in full force In harbors, rivers, and inland waters. The acts of March 3, 1885, and August 19. 1890, did not affect its application in such locality; and the act of February 19, 1895, expressly re-enacted it. Rule 23 of the same section (4233), equally applicable, provides that “where, by rule * * 19, "• * * one of two vessels shall keep out of the way, the other shall keep her course, subject to the qualifications
It is a fair inference, however, from the testimony in the different collision records that come before this court, that the practice is not uncommon among masters of steam vessels in these waters to navigate in utter disregard of any burden imposed upon them by rule 19. In some cases it seems to be assumed, wholly without authority, that a tug which has a tow is always privileged, no matter what her position. In other cases it has apparently been supposed that the master who first signaled was privileged to prescribe how the other vessel must navigate, sailing rules to the contrary notwithstanding. This curious theory seems to have been based on a misreading of one of the inspectors’ rules. It was exploded in The John King, supra. In other cases it seems to be supposed that some “courtesy” is due to a pilot of long experience, or to the senior of some flotilla belonging to a common owner, by his juniors in service, and that his vessel is always “privileged,” no matter. where she may be placed relatively to some other vessel. Signaling. upon some theory of “courtesy,” instead of in conformity to rule, had much to do with the confusion which brought both vessels into trouble in Le Champagne and The Lisbonense, 3 C. C. A. 546, 53 Fed. 293. In other instances the personal equation of the individual master has to be taken into account. It might be surmised
As was said before, it is indisputable upon the evidence that, when the necessity of navigating to avoid risk of collision arose, the Shultz had the Little Silver on her starboard hand. It must be assumed that the master of the Shultz knew that, under the rales, the Little Silver had the right of way, and that it was the duty of the Shultz to keep out of her way; that, although it was left to his judgment as a navigator to decide what movements to make in order to keep out of the way, the movements, whatever they were, were to be undertaken by him as master of the burdened vessel. From the very outset, however, he acted as if his vessel were privileged, and as if the duty of keeping out of the way were laid upon the Little Silver. He testifies:
“I Ill’s t saw Win [I he Little Silver] coining up the hay a good safe distance off, and I blew' him two whistles. * * * I couldn’t tell how far off he was then, in number of feet, hut I know it was a good distance to go clear either W'ay he wanted. * * * I blew two whistles, by which 1 meant that he would go under the stern of the schooner [my tow]. I got no answer, * * * and gave an alarm signal. When I blew' the alarm signal, he was a nice safe distance off to go clear if he wanted to. * * * There were not any boats in the way of the Utile Silver that I saw. She had the whole i’iver clear to the westward. * * * At the time 1 gave my two signals [two-whistle signal], the Little Silver would have had to change her course a very little to clear my tow. Q. Did you have that vessel when you first saw her on your starboard hand, do you think? A. Yes. Q. Whose duty was it to keep out of the way? A. The Little Silver, after I was. way by him, I think. Q. And you didn’t signal until you went by him? A. I*512 signaled when I had him well on my starboard. He could go clear of her if he saw her.”
The fault of the Shultz is glaring. The decree should be affirmed as to her, with interest, costs, and 10 per cent, damages.
As to the Little Silver the district Court held:
“The pilot of the Little Silver did not hear the signals of the Shultz, nor did he notice the schooner in tow of the Shultz, nor slacken his great speed till quite near her. A tow of barges crossed to the westward, between the Little Silver and the Shultz and her tow, a few moments before the collision; and the hawser to the schooner was not perceived until the barge had passed, and the Little Silver was within about 200 feet of the hawser.”
The evidence sustains this finding.
The district court further held:
“The Little Silver, though the privileged vessel, is also clearly to blame, because she was so easily manageable, and might without difficulty have avoided the schooner after it was perfectly clear that the Shultz was not going astern of her, and was unable to avoid collision. The evidence shows that the Little Silver could come to a dead stop in advancing about GOO or 700 feet. When at that distance, it was self-evident that the Shultz, with the schooner upon a hawser, could not avoid collision by anything the Shultz could do if the Little Silver kept on. It was the duty, therefore, of the Little Silver, on perceiving that fact, to reverse. Had she done so, the collision would have been avoided. That she did not do this is plainly in consequence of a deficient lookout, in not having perceived the schooner astern of the tug, as she ought to have seen her, long before the west-bound tug intervened. The lack of a proper lookout was thus the real cause of the collision on the Little Silver’s part. Each being to blame, both must be held answerable for the libelants’ damages, with costs.”
The collision was so manifestly brought about by the improper navigation of the Shultz that we would be inclined to excuse the Little Silver for some minor fault if the case could be brought within the rule in The City of New York, 147 U. S. 72, 13 Sup. Ct. 211, and The Ludvig Holberg, 157 U. S. 60. 15 Sup. Ct. 477. Had the district judge adopted a rule, suggested by him elsewhere, and held the Little Silver to respond to the extent of one-half the damages only if the Shultz was unable to pay the whole, such a division, although novel, would commend itself strongly, as being most equitable. But the finding of fault is clearly sustained by the proof. The period of uncertainty as to what the burdened vessel meant to do which is referred to in The Britannia, 153 U. S. 130, 14 Sup. Ct. 795, The Northfield, 154 U. S. 629, 14 Sup. Ct. 1184, and The Delaware, 161 U. S. 469, 16 Sup. Ct. 516, had passed. It was plainly manifest to the pilot of the Little Silver that the Shultz had gone so far on her improper course that it was absolutely impossible for her, either by changing course or stopping or reversing, to keep her tow out of the way of the Little Silver. By reversing, however, the latter could avoid collision with the tow. She did not reverse, and the only excuse offered is that she did not know there was a tow; but, if she had had a proper lookout, she would have discovered this fact before the west-bound tow of barges temporarily obscured her view of the Shultz and tow. We feel constrained, therefore, to ¿ffirm the decree against the Little Silver, with interest, but without costs. The decree against the Shultz is affirmed, with interest, costs, and 10 per cent, damages.