108 F. 300 | 2d Cir. | 1901
The opinion of the district judge (103 Fed. 681) is most exhaustive. It not only sets forth the fads found by him, but contains a careful, epitome of the evidence bearing on such questions of fact as are in controversy. We shall not undertake to restate the casé in like detail. His opinion may be consulted for facts not here recited.
The Kennebec, a large passenger and freight steamboat, was bound-from Providence into New Haven. Her dock lay far up the harbor, at the mouth of Quinuipiae river. Next below her dock lie two others, known, respectively, as the “Water Dock” and the “Coal Dock,” — the latter distant about 350 feet from the steamboat dork. From the face of this coal dock across to shoal water on the ether side the total fairway- is not over 500 feet wide. The hour was about 1:3.0 a. m. October 27, 1899, and there was a heavy fog. From a point in the harbor off the Long wharf, five-eighths of a mile below the coal dock, on which wharf the steamboat company-had stationed a man with a horn and maintained a red light to aid the navigation of the steamer in the fog, her pilot laid a compass course which, if no obstruction were found iu the fairway, would clear the coal dock by 100 feet, and bring him safely to the steamboat dock. To that course he held, and when lie reached the line of the coal dock he was 100 feet outside of its face, in the fairway of the channel. There and then he encountered libelant’s barge; her presence not being disclosed to those on the steamer till they were almost on top of her, — barely 50 feet off. Of, all the many instances of carelessness which have come before this court since it was constituted, it may well be -doubted whether there has ever been disclosed any more gross than this, which left the barge tied up iu a narrow fairway just short of the terminus of a steamboat route, 100 feet out from the face of a dock, with no effort on the part of any one to advise navigating vessels of her whereabouts. The way it came about is as follows: Moored to the face of the dock, which the chart shows to be a long one, was a barge. Outside of that was fastened another barge, and outside of that, again, a schooner. These were there at nightfall of the 26th. About 8:30 p. m. a tug brought five other boats to the same place, where they were berthed one against the other outwardly from the dock; the whole eight abreast, bows upstream; the inner one fast to the pier; each of the others moored to the boat next inshore, as if such boat was a part of the pier. By adding up their respective widths, it appears that they thereby practically thrust the face of the dock, itself a lawful obstruction to the extent of its own superficies and
As to the conduct of those in charge of the coal dock and the outlying vessels it is contended by appellant that the vessels did more than their duty, by maintaining the lights they claim to .have displayed; citing The Martin Dallman, 17 C. C. A. 419, 70 Fed. 797; The Granite State, 3 Wall. 310, 18 L. Ed. 179; and L’Hommedieu v. The Mischief (D. C.) 39 Fed. 510. The rules concerning lights and sound Signals during fogs which were in force at the time prescribed lights for a vessel at anchor, and the ringing of a bell when at anchor in a fog, but are silent as to vessels moored to a pier. The cases cited hold that vessels so moored need show no light, but the situation was vastly different in each case from what it was in the case at bar. The schooner with which the Martin Dallman's tow collided was properly moored, “her stern west of the west end of the wharf, and her bows at the east end, around which the Dall-man attempted to turn in order'to enter the * * * canal. The testimony is clear that the schooner was moored out of the way of vessels going into * * * the canal.” The barge with which the Granite State collided lay across the end of pier 23, East river. “She -was well secured in her place, but had on board no watch
“If a vessel may not anchor in the channel 100 or 175 feet from the pier without taking due measures in the midst of a fog to give notice of her presence, by what right may she tie up outside other boats, in the whole occupying nearly half the channel? Her position is the same. In the one case she is held by her anchor; in the other, by her connection with the other boats.”
We concur in Ms conclusion:
“It is objected that the statute does not require lights or signals. Even so, common prudence demands that ships appropriating a quarter or a third of a channel should use care to employ adequate means to make their presence known.”
As the question is presented here, it is not so iñuck whether this particular barge, No. 11, failed to comply with some rule, or omitted to do something which she, aside from any rule, ought to have done, thus depriving herself of a right to recover, or requiring a division of the damages. It is from the standpoint of the Kennebec that it is to be considered. She is the one charged with improper navigation, and her navigation is to be judged by a consideration of what her pilot had the right to expect. If he was entitled to assume that, rule or no rule, no one would he so devoid of common sense as to make a barge fast in a traveled fairway, and leave her there, exposing life and property to constant peril, during a dense fog, without sounding any note of warning, it makes no difference what particular person should have given such warning. No. 11 was the sixth boat from the dock, and the third from the outside. Signals warning of the presence of the other vessels would have protected her. She did not come there herself. ITer tug left her, and the barge; may fairly have assumed that the tug would look after her safety if
The faults of navigation charged against the Kennebec in the libel are: (1) Navigating the harbor of New Haven in a fog; (2) navigating at too high a rate of speed in a fog; (3) keeping no lookout, or no sufficient lookout; (4) not stopping and backing in time to prevent the collision; (5) not taking any proper or seasonable precautions to prevent the collision. It is sufficient to refer to the opinion of the district judge for the findings on which is based his conclusion that "the Kennebec approached the coal dock, well piloted, at proper speed, with sufficient men on lookout, and capable of being stopped within one hundred and twenty-five feet.” With the assistance of the man sounding a horn on the Long wharf, and a like guiding signal-at her own dock, the Kennebec, with a careful and competent pilot, might very properly, so long as she exercised due caution, feel her way along to her berth. Her speed was reduced barely to steerageway, and she could stop within the space found by the district judge. Any efficient signal, warning that the coal-dock owner was obstructing the fairway, would have been heard at a much greater distance. She had two, if not three, careful and competent look- ■ outs, who saw the boats as soon as the fog would permit. She stopped and backed at once. Indeed, none of these faults are dwelt upon on this appeal. The contention now is that it was improper navigation to proceed on a compass course, which would take the steamer TOO feet out into the fairway, when the fog was so dense that lights could not be seen soon enough to insure stopping, relying on being warned by sound that there was a boat lying motionless in the water there. But, as we have held, the pilot had a right to rely on receiving just such a warning, and is not to be charged with the knowledge that he was to find the fairway thus obstructed that night because boats had been moored at the coal dock in the same way before. There is no evidence that such a state of affairs ever existed before when there was fog, and the pilot was entitled to assume that, when the fog shut in, there would be some proper warning given, if the obstruction was there then. The decree of the district court is affirmed, with costs1.