Heath v. The St. Johns
42 F. 75
U.S. Circuit Court for the Dis...
1890
Check Treatment
Lacovibe, Circuit Judge.

The findings, taken in connection with tbe opinion of tbe district judge, (34 Fed. Rep. 763,) sufficiently indicate the grounds of affirmance. Had the navigation of both vessels boon in accordance with their agreement, there would have been no collision. What-, then, was the agreement, and who failed to keep to it? The Rosecrans and the Delaware being each in the “fifth situation ” relatively to the'St. Johns, which was on their starboard hand, were required by the rules to port, and pass astern of the St. Johns; the latter continuing on her course, and passing ahead. For some reason or other, the pilot of the *78•Rosecrans disliked to take this course, — probably because he was crossing an ebb-tide incumbered with a tow, — and undertook to agree with the St. Johns upon some other course. What thereupon .occurred, as evidenced by the signals, was this: “I want to cross your bow.” says the Rosecrans. “I am going to cross the Delaware’s bow,” is the reply; “but, if you wish to cross mine, you may.” “I do wish to do so,” responded the Rosecrans, “and will act on your permission.” By this agreement, it became the duty of the Rosecrans to keep her course without unnecessary delay,'and of the St. Johns not to thwart her, nor to intrude into the water through which the maneuver which the Rosecrans was about to undertake would in ordinary circumstances be carried out. Thereafter the St. Johns slows. She crosses the bow of the Delaware according to programme, and by as narrow a margin as she safely can. She then co-operátes by starboarding. She does not intrude into the water which would have been required for the tug’s maneuver, if executed as promised. She does, in fact, collide with the Rosecrans, but solely because of the latter’s stopping.. If what was ordinarily to be expected had happened, the water into which the St. Johns came would not have been at that time required for the maneuver the Rosecrans was making. Nor was the master of the Rosecrans justified in stopping by any fear as to the St. Johns’ course. Nothing iq the situation or in the latter’s agreement was demanding an alteration of her course up to the time when the Rosecrans reversed. - In this particular the case differs from that of The Britannia, ante, 67, which, both by the rule governing her situation, and by the promise of her signal, was required to alter her heading several points. This case is also-to be distinguished from The Sammie, 37 Fed. Rep. 907. There the failure of the Burke to alter her navigation so as to co-operate with the Sammie was persisted in, without any apparent cause, for so long a time that the pilot of the Sammie was held excusable in reversing, contrary to his agreement, such maneuver being made in extremis. Here the St. Johns did alter her navigation to co-operate with the Rosecrans as soon as she could. It is true that by that time she was quite near the Rosecrans; but the master of the latter knew, when he made his agreement with her, that he must expect no stoppage or swinging to port from her until she had reached the Delaware’s bow. Decision of district court affirmed.