34 F. 408 | E.D. Va. | 1888
{after stating facts as above.) There can be no doubt that the libelants that have been named are entitled to damages. If the ferryboat was in fault they had contractual relations with it which justify damages for injuries. If the tug and barge were in fault, they are entitled to recover damages from them as for tort; and so I will first dispose of that part of the case before entering upon the question of fault. The case of Mrs. Lilliston is the most serious one. She was dangerously and painfully injured, though, fortunately, as has turned out, not permanently so. She suffered excruciating agonies for a series of many days. She was prostrated and helpless for months. Her injuries would doubtless have proved fatal, but for the skill of her physician, the recuperative energies of a strong constitution, and the careful and assiduous nursing of friends. I will sign a decree awarding her §2,500, and one in favor of her husband individually, for the amount of her medical bill, and for the sum of §200 besides. This latter amount is intended to cover loss of time from work, and miscellaneous expenses incidental to the illness of Mrs. Lilliston. I will sign a decree in favor of Cooper for §750, plus the amount of his medical bill, — the first sum to stand for loss of timo and the expenses incident to his wounded condition.
I come now to pass upoirithe crucial question in this trial, namety, whose was the fault which caused the collision? The cause of the accident may be stated in a nutshell. That cause was the mistake made by Capt. Smith in supposing the white light which he saw before him was that of the tug Phillips moving from him, and in porting his helm in order to let it pass out of his way. Instead of that being the case, the light was upon a barge moving towards him when first seen, and moving in such
First, as to the Manhasset. She was moving, in that dark, rainy night, across a harbor navigated day and night by many vessels, at the rate of 9 to 12 miles an hour, before a strong wind and tide, without a lookout or a deckhand above decks to serve as eyes and ears, except the man at the wheel, who was acting, alone and singly, as master, pilot, wheelsman, and lookout, all in one. Moving, thus blind and deaf, with such force and rapidity, in a harbor, in the dark, loaded with passengers, with but one solitary man above decks, such was the condition in which she encountered disaster. There are cases in which res ipsa, loquitur, — fault is self-proclaimed. In respect to lookouts, the law is positive and absolute. The decisions of the courts are replete with admonition of the necessity of the lookout as a sine qua, non of safe navigation. It were vain to devise laws of navigation, or to agree upon rules of the road, if ships were not required to keep one or more lookouts constantly and properly posted during the time they are in motion. The specific duty of the lookout is constantly to search the horizon for objects that may affect the navigation of his ship, and to report the varying conditions the ship finds herself in in relation to other vessels in the same ■waters, in order that she may be navigated in obedience to the law’ or rule of navigation applicable to the conditions reported. The lookout’s duty is distinct and different from that of the navigator. He is in a dif-ieren t position on deck. Ills mind and eye are differently occupied; his work and duty as different as that of one man can well be from the work and duty of another. The lookout of a ship is its eyes and ears; without him, she is blind and deaf. There is close and responsive relation between him and the pilot. His eye constantly and searchingly scans the face of the water before and on either bow of his ship and liis voice is prompt to warn of every object that presents itself to the vision. The pilot’s mind is intently upon the lookout, and his hand on the wheel intuitively responds to the lookout’s voice. A lookout is only a lookout thus attracting the pilot’s constant attention when he is regularly on duty. There is no such thing as an amateur or volunteer lookout. Such person has not the oar of the pilot, and his communications to him are little bettor than an impertinence and distraction. The real lookout and the pilot are essential counterparts of each other. In the absence of a pilot, the lookout’s office is useless. In the absence of the lookout, the pilot is helpless, except to the extent that he subordinates his proper duty in order to act as lookout away from the lookout’s proper position.
“The steam-boat was in fault in not keeping on deck at the time a proper lookout on the forward part of the deck. The pilot-house, in the night, especially if dark, and the view obscured by clouds in the distance, was not the proper place, whether the -windows were up or down. A competent and vigilant lookout stationed at the forward part of the vessel, and in a position best adapted to descry vessels approaching at the earliest moment, is indispensable to exempt the steam-boat from blame in case of accident in the nighttime, while navigating waters on which it is a custom to meet other water craft.”
The supreme éourb said in The Genessee Chief, 12 How. 463:
“It is the duty of every steam-boat traversing waters where sailing vessels are often met with, to have a trustworthy and constant lookout, besides the helmsman. It is impossible for him to steer the vessel, and keep a proper watch in his wheel-house. His position is unfavorable to it, and he cannot safely leave the wheel to give notice when it becomes necessary to check suddenly the speed of the boat. And -whenever a collision happens with a sailing vessel, and it appears that there was no other lookout on board the steam-boat but the helmsman, or that such lookout was not placed in the proper place, or not actually and vigilantly employed in his duty, it must be regarded as prima facie evidence that it was occasioned by her fault. ”
The supreme court, in The Catharine, 17 How. 177, speaking of a lookout on a sail-vessel, said:
“Custom or usage cannot be permitted as an excuse for dispensing with a proper lookout while navigating in the night, especially on waters frequented by other vessels. Under such circumstances, a competent lookout, stationed upon a quarter of the vessel affording the best opportunity to see at a distance those meeting her, is indispensable to safe navigation, and the neglect is chargeable as a fault in the navigation. ”
The supreme court said, in Chamberlain v. Ward, 21 How. 570:
“Steamers navigating in the thoroughfares of commerce must have constant and vigilant lookouts stationed in proper places on the vessel, and charged with the duty for which lookouts are required, and they must be actually employed in the performance of the duty to which they are assigned. To constitute a compliance with the requirements of law, they must be persons of suitable experience, properly stationed on the vessel, and actually and vigilantly employed in the performance of their duty; and for a failure in either of those particulars, the vessel and her owners are responsible.”
The supreme court, in Haney v. Packet Co., 23 How. 292, used this language:
“The captain of a steamer, whose theory of action appears from his own testimony to be that all small vessels are bound at their peril to get out of the way of a large steamer carrying the United States mail, although he had seen*419 tlie schooner, and knew that the vessels were approximating at the rate oí twenty miles an lionr, retired to his cabin, tie left on deck one man, besides a colored man at the wheel, to act as pilot, lookout, and officer of the deck. These two persons constituted the whole crew on duty, besides íiremen and engineers. This person who had to perform these treble functions was the second mate. His theory is that the best place for a lookout is in the pilot-house, where, he says, ‘ I generally lean out of the window, and have an unobstructed view'.’ Accordingly as pilot he remained in the pilot-house, to direct the steersman; and, as lookout, he occasionally leaned out of the window.”
After speaking thus derisively of master and second mate, and after repeating the law of the duty of lookouts, the supreme court hold that it was “the captain’s duty to have been on deck, which he was not; and that tho only man on deck, acting as pilot, lookout, and officer of the deck, was not in the proper place for a lookout to be when he was in the pilot-house.” The supreme court in the case of The Ottawa, 3 Wall. 268, hold that “lookouts must be persons of suitable experience, properly stationed on the vessel, and actually and vigilantly employed in the performance of tboir duty; and that the- master of a steamer, when acting as officer of the dock, and having charge of the navigation of tho vessel, •is not a proper lookout, nor is the helmsman.” The circuit court of the Northern district of New York, in The Northern Indiana, 3 Blatchf. 92, held that in a steamer running along a track frequented by sail-vessels, the inside of a pilot-house in a dark night is not the proper position lor a lookout. Adopting the rulings of tho English high court of admiralty, Mr. Justice Nelson held that “the want of a lookout, detailed and stationed for that specific duty, is in itself a circumstance of a strong condemnatory character, and exacts in all cases from the vessel neglecting it, clear and satisfactory proof that the misfortune encountered was in no way attributable to her misconduct in that particular.” In none of the decisions of tho courts enforcing the duty of having competent and vigilant lookouts properly stationed on steamers while in motion, is any exception made or implied in favor of ferry-boats. The circuit court of the United States for the Southern district of New York, in the case of The America, 10 Blatchf. 159, held that “in the navigation across the crowded channel of the East river at New York a most vigilant lookout from some place on the ferry-boat is required.” The district court of the Southern district of New York, in the case of The Monticello, 15 Fed. Rep. 474, held that a ferry-boat was liable for a collision which occurred about 140 feet outside of her slip, where she started without a lookout upon lier bows. The district court of New Jersey, in the case of The Ant, 10 Fed. Rep. 294, held that steamers navigating on the thoroughfares of commerce are bound to have a lookout, independently of the helmsman. English and other American authorities on the subject might be multiplied indefinitely, if it were necessary. It is safe to say tliat no rule of navigation is more thoroughly established than that wbich requires every moving vessel to have a lookout, specifically charged with the duties of lookout, and none other, and to have him properly stationed. There can be no rules for the government of ferryboats varying from those prescribed for shipping in general. The laws
The princqjal complaint against the tug and barge is in regard to their lights. As to the tug, the charge is that, although she may have had the regulation lights in their places, and burning, yet she took a position beside the barge which prevented them from being seen by the ferry-boat. The law, in rules 3 and 4 of navigation, not only defines the number and kind of lights to be carried by a steamer in towing another vessel, but fixes with precision the places at which these lights are to be carried. Its requirements were complied with' by the tug. The same law forbids
It is complained, as to the barge, that her side-lights were visible only from her wake and were invisible from the direction towards which she was moving. This was not fault. There is no law of navigation requiring side-lights to be carried on barges under tow, and the side-lights of this barge, on the night under consideration, were, to all vessels ahead of her, as no lights at all. .As to white lights, the navigator of the barge bad no right to improviso a set of lights to serve the purposes of that particular occasion. No signal-lights are of value, and I might add, of legality, in navigation, except the conventional lights known and understood of all mariners, prescribed by law and the rules of the road. The barge had a right to move stern foremost, especially under the necessities which then required it; and one thing only was legitimate for her to do, in moving in that manner, which was to display one white light in a
Much stress of objection is laid upon the fact that Capt. Cason knew the night schedule of the Manhasset, and that she would be on her passage to Portsmouth before he could get away from her route. I attach no importance, in this connection, to the fact, arithmetically shown, that he left the wharf of the coal pier four minutes or more before the Man-hasset embarked from Norfolk. Vessels having occasion to move in this harbor are under no obligation of either morals or law to delay their departures until a ferry-boat shall have made a trip. The harbor is free to all, and the laws of navigation are as democratic as cosmopolitan. They recognize no privileged characters, and stand upon the catholic principle of equal rights and common duties. The barge and tug of the respondents here had the absolute choice of the time of setting out on their trip to Town point, and the unqualified right to choose it at their own will. If the vessels having the right to navigate this harbor were bound to stay five minutes for the ferry-boat to cross it in one direction, and five minutes also to cross in the other during every 20 minutes of the day, they would have but half the time to move in; and if another boat were added to the ferry service, the upper part of Norfolk harbor would be closed to general navigation. This pretension thus resolves itself into an absurdity; and cannot bo countenanced. But it is claimed that, though the right to move at will might have belonged to the tug, yet prudence should have counseled -delay for the passage of the ferry-boat in view of the danger of encountering her; and that venturing out at that particular time was fault in the tug and barge. If my duty calls me into a public street, where a strong man claims special occupancy, discretion of .cowardice might dissuade me from venturing forth; but if, exercising my right, I do go into the street, and the strong man assaults
It is urged that the tug and barge were in fault in having disregarded rule 19 of navigation. That rule declares that “if two vessels under steam are crossing so as to involve risk of collision, the vessel which has the oilier on her own starboard side shall keep out of the way of the other.” The rule applies to vessels that are on courses which cross each other. The tug left the Berkeley coal pier about four minutes before the Manhasset left Norfolk. She had less than 283 yards to go before crossing the usual route pursued by the Manhasset in coming into her Portsmouth slip. The ferry slip was 288 yards from the coal pier. The tug and barge, as I have already estimated, did not approach within 100 yards of the slip. She had, therefore, but 133 yards to move from the coal pier before crossing the route of the ferry-boat. At the rate of two miles an hour, she made these 138 yards in two minutes live seconds after getting under way from the coal pier, and allowing one minute and a half for getting under way, then’ the tug and barge had crossed the route of the ferry-boat in three minutes and thirty-five seconds after leaving the coal pier, and fully one minute before the Manhasset had loft her Norfolk slip. The case is therefore not one of crossing courses, and rule 19 lias no application. The tug and Manhasset, after the latter left Norfolk, were pursuing courses that did not cross, and that involved no danger of collision, if each vessel bold its course, and neither adopted any eccentric movement. They were on courses that naturally required each vessel to leave the other on its own starboard; in other words, to pass to the left. And accordingly, as soon as Capt. Cason saw both lights of the Manhasset, he blew two whistles, and half a minuto afterwards blew two more, admonishing the Manhasset that he proposed to pass to the left. He received no response from the Manhasset, until the two vessels were within 20 yards of each other, approaching at the rate of 11 to 14 miles an hour; that is to say, were within 3 to 5 seconds of collision.
It is also urged that Capt. Cason did not obey the requirements of rule 3 of pilot regulations, which provides that “if, when steamers are approaching each other, the pilot of either vessel fails to understand the course or intention of the other, whether from signals being given or answered erroneously, or from other causes, the pilot so in doubt shall immediately signify the same by giving several short blasts of the steam-wbistlo; and if the vessels shall have approached within half a mile of each other,” etc. It is complained that Capt. Cason did not give these alarm blasts. The rule applies to vessels which are far enough distant from each other for such blasts to avail when the pilot' who first signaled discovers that the other has misunderstood him, or proposes some other movement. In
It remains fór me only to notice, in closing this discussion, the contention of proctors for the Manhasset, that the absence of a lookout on their boat was immaterial in this case, because the collision was not due to such absence; inasmuch as he could not have seen the lights or heard the whistles of the tug, though he had been in place. In answer 1 have to say that there were at least three persons on the Manhasset, one of whom both saw the light on the barge and heard the four signal whistles, and all three of whom heard the whistles. The witness who saw the light seems to me to have established his claim to credit with exceptional strength. Uíider a severe cross-examination in an uncharitable direction, he told truths extremely disagreeable to himself in a very manly manner; and we have a right to conclude that if a witness will adhere to truth under such an ordeal in matters of deep personal interest to himself, he may be believed implicitly, when testifying to facts which he has no interest in concealing. The proof is positive that whistles were blown, and the white light shown; and the necessary inference is that if the Manhasset had had a vigilant lookout properly stationed, he would have heard and sedn, and the collision thereby avoided. I therefore, on the whole case, find that the tug and barge were without fault, and that the Manhasset was solely in fault, in not having had a lookout properly stationed, who would have so informed Capt. Smith of the barge’s light and the tug’s whistles, that he would not have made the mistake of crossing the tug’s bow at the critical moment of the occasion. I will decree in accordance with this finding. It will have been observed that I do not object in what has been said to the speed at which the Manhasset was running. It is doubtless true that 12 miles an hour is too rapid a speed for a steamer in a crowded harbor; but I do not think that 9 miles is necessarily too great. The excess of speed on this occasion was due wholly to the wind and tide; and I do not think, when the usual speed of a vessel is thus accelerated,