Law v. The Trave

55 F. 117 | S.D.N.Y. | 1893

BLOWN, District Judge.

Tbe above libel was filed by tbe owners of tbe British ship Fred. B. Taylor to recover their damages arising from collision with tbe North German Lloyd steamship Trave, in a dense fog some 240 miles to tbe eastward of Sandy Hook at about half past 6 in tbe morning, steamer’s time, June 22, 1892, whereby tbe ship was cut in two and sunk.

Tbe steamer was outward bound, and on her usual course, going about due east. Tbe ship was bound from Havre to New York. The wind was moderate from tbe W. S. W., and tbe ship was sailing upon her port tack, beading about N. W. She bad been sailing for several days in fog, so as to be unable to take observations. Tbe steamer, until about five minutes before collision, bad clear weather, and was going at about full speed. A few minutes before tbe collision tbe sky began to grow hazy; fog was evidently apprehended; two of the lookout were called down from tbe crow’s nest and stationed at tbe bow, as required in thick weather. Orders were given to close tbe compartments, and to tbe engineer to stand by, and a reduction of half a dozen revolutions of the engine was made, bringing tbe speed of tbe Trave to about 15 knots. Tbe sun, from an hour and a half to two hours high, was still visible. Tbe fog suddenly became dense; within two or three minutes after-wards (be loom of tbe ship’s sails was seen by tbe starboard lookout a couple of points on tbe starboard bow, and be immediately reported to tbe officer on tbe bridge, who answered tbe lookout’s report with a wave of tbe band, and a little afterwards tbe ship’s born was beard. Tbe steamer’s engines were reversed as soon as possible and her helm was put bard aport, but without avail. Her stem struck the port side of tbe ship at an angle of about 80 degrees between the main and mizzen chains, cut her in two and passed between tbe two parts of tbe wreck, and disappeared in tbe fog. Some of tbe ship’s crew were drowned; but most, including tbe master, were recovered from tbe wreck.

1. I find it impossible, under decisions binding on this court, to acquit tbe steamer of tbe charge of legal fault in running at nearly full speed in thick fog. No doubt tbe coming on of tbe fog was very sudden; but it was not so sudden but that her speed could have become “moderate” bad lier officers chosen to give prompt orders to reduce it to the moderate rate allowed by the regulations. The steamer, doubtless, had no notice oí the ship's near presence, as she was invisible in the dense £og ahead; and no sound of the sbipk> hom was heard until after her sails wore seen. The; chancee that she would meet a vessel uo speedily near the very edge of the tog were no doubt small; but in not bringing; her speed down at once on entering the log, the r,¿earner took all the risk, and the attendant responsibility. A similar question was presented in libs court in the ease of The City of Alexandria, 31 Fed. Rep. 427, 431, in which F was held that the steamer running into a. fog bank wan bound, ac her own risk, to have moderate speed as soon as she got FFo the fog, a ad to regulate her approach to a fog bank accordingly, liad this steamer slowed ac soon aa abe got into the thick fog, there is no doubt that she would have cleared the ship, as she lacked only 10(8 feet of doing so, as it was. The question of wíia f comb ilutes a moderate speed in a fog lias boon so often considered and adjudicated by the supreme court, that further discussion on that point here would Tk; inappropriate. The Nacoochee, 22 Fed. Rep. 855; Id., 137 U. S. 330, 11 Sup. Ct. Rep. 122; The Normandie, 43 Fed. Rep. 151, 157; The Bolivia, 49 Fed. Rep. 169, 1 C. C. A. 227.

2. The ship, however, must also be held in fault for not complying with article 12 of the new international regulations, which required Flat die should be provided with an efficient “fog born to be sounded by a bellows or other mecha ¡acal means.” The skip, on leaving Havre, had such a horn, pirn «led with a piston for blowing it by mechanical means; but there was considerable fog on the voyage, and a few days before this collision the apparatus had got out of order by ¡lie derangement of some valva;, and a horn blown by the mouth was 1 hereafter used instead.

The object of the new rule, which is as obligatory on sailing vessels as on steamers, (The Wyanoke, 40 Fed. Rep. 702; The Catalonia. 43 Fed. Rep. 396; The Bolivia, 49 Fed. Rep. 169, 1 C. C. A. 221,) is manifestly for the purpose of securing louder and more penetrating blasts than can be given by the mouth, in order that the presence of vessels in fog may be made known at a greater distance, and a better opportunity thereby be given to avoid collision. If, therefore, there is any obligation at all upon a ship to make provision for the possible giving out of a single fog hom on the voyage, this obligation is not satisfied by supplying a spare hom substantially different from what the statute requires. I cannot doubt that the obligations of reasonable prudence do require in a matter' so essential to safe navigation upon the Atlantic, as a fog horn for use during fog, that a spare horn should be provided to meet the liability to loss or derangement that may happen from various causes during the voyage. A ship that started across the Atlantic with no spare compass, chain, or tackle, would surely not be deemed reasonably equipped for the voyage; and she could not plead her lack of equipment in any of these respects as an excuse for noncompliance with the rules of navigation. It is the same with so important an article as a fog hom; and no substitute can be lawfully supplied substantially different from wbat tbe statute requires. I cannot follow Tbe Chilian, 4 Asp. 473.

It is impossible to say that the lack of a mecbanical fog born in this case would have made no difference. On the contrary, there is every probability that it might have made a difference sufficient to have avoided collision; for the last blast given happened to come alter the sails of the ship bad been seen. At the previous blast-, given probably a minute before, the steamer was too far away to bear it; whereas the blast of a mecbanical fog born, given at the pame time, might very probably have been beard; and the slowing of the steamer, which would naturally have been thereupon ordered a minute earlier, would certainly have avoided this collision. It is not incumbent, however, on the steamer to show that the use of a mecbanical fog born would have certainly prevented collision.- the burden, upon noncompliance with the statute, is up'on the faulty ship. She remains in fault unless she can prove certainly that a compliance with the statute could not possibly have made any difference; and this, as in the case of the Pennsylvania, 19 Wall. 125, 137, 138, is impossible. the Bolivia, supra.

Tbe damages and costs must, therefore, be divided. A decree may be entered accordingly, with an order of reference to compute tbe damage, if not agreed upon.