Hardy v. Fulda, 52 F. 400

Hardy v. Fulda

52 F. 400 | S.D.N.Y. | 1892

Brown, District Judge.

On the 14th of July, 1888, at a few minutes past 9 o’clock in the morning, the steamship Fulda, length 420 feet, while proceeding on a voyage from Bremmerhaven to New York, came in collision, during a dense fog, with the libelant’s two-masted schooner Jeune Edouard, at anchor on the Grand Banks, in latitude 44 deg. 45 min. north, and longitude 54 deg. 50 min. west. The wind was strong from the southwest, and there was a considerable sea, with a heavy ground swell, so that fishing was suspended. The schooner was first seen by the lookout and by the officers on the bridge at about the same time, estimated about 500 feet distant, and nearly straight ahead, being a little on the starboard bow. The wheel was at once ordered hard astarboard and the steamer swung only about one-eighth of a point to port. Her stem, however, struck and carried away the bowsprit of the schooner, and as she went past, her anchor caught the foreshrouds and dragged the schooner some considerable distance, knocking a hole in her bow and carrying away her foremast and main-topmast. Having got clear in the fog, the steamer steamed around for an hour or more, and not finding the schooner or hearing from her *401further, went on her voyage. The schooner continued to fill, despite alt efforts to keep her clear, and on the second day after was abandoned by the crew, and shortly afterwards sank.

The Fulda at the time of collision was in charge of the second officer,, who with the fourth officer was on the bridge. I do not find that any blame attached to the lookout, or to the other management of the-steamer, except as regards her speed. On this subject the evidence shows that her full speed under 62 revolutions, in favorable weather, would be about 17 knots. About a half hour before the collision, inconsequence of the increasing sea, and because, as it is said, the ship did not seem to be steering satisfactorily, the master ordered her previous half speed of from 40 to 42 revolutions, to be increased to 50 revolutions a minute. This, in favorable weather, would give a speed of about 13½ knots. The considerable sea, to which all the witnesses testify, would undoubtedly reduce her speed some 2 or 3 knots. The second officer who was in charge of the navigation, estimated her speed at 50 revolutions under the existing conditions to have been 10 knots. It is not, however, material whether her speed was 10 knots, or 1 or 2 knots above that rate. Eithe) was much in excess of what has been held, as respects similar vessels in repeated adjudications, to be the “moderate speed,” required! by law during thick fog. The Nacoochee, 137 U. S. 330, 11 Sup. Ct. Rep. 122; Leonard v. Whitwill, 10 Ben. 638, 646; ThePennland, 23 Fed. Rep. 551; The Britannic, 39 Fed. Rep. 395; The Normandie, 43 Fed. Rep. 151,. 155-157. In fog so dense that a vessel cannot be distinguished more-than five or six hundred feet distant, a steamer like the Fulda, though, keeping her full steam power in reserve, could not expect to be able stop before running into a schooner at anchor ahead of her, if she going upwards of six knots an hour. The Normandie, ubi supra, note 2. The Britannic, 39 Fed. Rep. 397. Any greater rate of speed on the Banks;. where other vessels are likely to be met with was, therefore, at her risk., provided the other vessel performed her statutory duty.

It is argued that the master was justified in increasing her speed! enough to make her steer properly. No doubt with increasing speed;., the ship would go straighter and steadier; but the evidence does not show that the Fulda had become in the smallest degree unmanageable;, or that any such speed as was maintained, either before or after thmaster’s order, was necessary to keep the ship under reasonable and sufficient control for practical purposes, although not perfectly steady. is not intimated that the Fulda was not as manageable at “slow” speech as ordinary vessels of her class; and in common experience such vessels.'., in rough weather often go “ slow ” without difficulty, which for th Fulda would be about six knots. As respects manageability, see TheNormandie, ubi supra, pp. 155—157.

2. It is urged that the schooner was in fault for not properly sounding her bell, being at anchor. Numerous witnesses, however, for the schoonetestify most positively that the bell was rung forward, and a mechanical; fog horn blown aft, every minute, and that these had been thussounded for.a considerable period before the collision. An additional reason for keep*402ing up those.signals was that two of the schooner’s men were adrift in ■a dory, whose return to the schooner it was desired to assist by signals. Of the 16 persons on board the schooner, 3 I understand are dead; and of the remaining 13, 8 have been produced as witnesses, mot, however, including either of the 2 men who were sounding the bell and fog horn. A third seaman, Yiel, was upon deck at the time of collision; he had been drawing molasses from a barrel, to take below where the rest of the crew were at breakfast. Viel testifies that while he was on deck the horn and bell were regularly sounded; and he and many others who were below testify to the same thing. That the men who were sounding the signals were upon watch, is shown by the fact that they gave an alarm to the men below, to the‘effect that the steamer was running upon them. This was done in time to enable nearly all to come on deck before collision. They reached the deck, however, only just before the steamer struck.

Upon all this testimony and the acts of the persons on board, I cannot doubt that the signals were sounded as required. That they were not heard on board the steamer, is not surprising. In the interval between the signals allowed by law, namely, two minutes, the steamer, at the rate she was moving, would pass over about 2,000 feet; and with a strong wind and a considerable sea, such as to cause the Fulda to take considerable water on deck, and at the speed at which she was moving, the noise and commotion attendant on the navigation furnish abundant reason why the schooner’s signals, though properly given, might not have been heard on the Fulda, without any resort to possible abnormal conditions of the atmosphere. The Lepanto, 21 Fed. Rep. 651, 655-658. The fact, moreover, that after the Fulda’s speed was diminished, and while she was steaming about to find the schooner after the accident, her officers did hear various signals in different quarters, although none had been heard before, is a strong indication that the previous failure to hear signals from the schooner, or from any other vessel, was due to the noise and commotion attendant on the speed of her own navigation under such circumstances, rather than to any neglect in the schooner. The Buffalo, 50 Fed. Rep. 630.

I must find, therefore, that the schooner was not remiss in sounding signals as required; and that the speed of the steamer, not being the moderate speed required by law under such circumstances, was at her risk; and that she is, therefore, answerable for the damages. Decree may be entered accordingly, with costs.