32 F. 555 | S.D.N.Y. | 1887
The libel in this case was filed to recover damages arising from a collision in the East river, a few hundred feet below Corlear’s Hook, at about 10 a. m. on the morning of March 8, 1886, between the libelants’ schooner C. R. Flint, and the bark Doris Eckhoff. The Flint was going up river with a strong flood-tide, in tow of the steam-tug J. G. Stevens, upon a hawser of 40 fathoms. The bark was coming down the river, upon a hawser of about the same length, in tow of the tug R. S. Carter. The Stevens and the schooner were proceeding up river about one-third the distance across from the New York shore. The Carter, with the bark, was coming down river from above the Hook, still nearer to the shore, and in the eddy tide. Off Corlear’s Hook, they were from 100 to 200 feet only off the New York shore. From the Jackson-strect pier, a few hundred feet below, the flood-tide takes a strong set across towards the Brooklyn shore, running probably three knots. The tugs were .approaching each other at about the rate of 10 knots, and, when only about 400 yards apart, each had given one blast of the whistle, indicating that they would pass port to port. Doubtless they would have done so safely, except for the effect of the cross-tide upon the Eckhoff. As the Carter and the Eckhoff, on rounding the Hook, struck the strong cross-current of the flood-tide, they ivere both deflected to port, and the bark, unable to keep her former direction, ran into the schooner, in consequence of which the latter sank not long after. The libel was originally filed against the bark and the two tug-boats, alleging fault in all. Only the bark, however, was arrested under the process of this court; the two tug-boats having been previously seized under process in the Eastern district, and thereunder sold. Afterwards, upon petition by the claimants, under the fifty-ninth rule of the supreme court in admiralty, the owners of the two steam-tugs were made parties defendant in personam, and they subsequently appeared and answered.
Without referring to the numerous details that appeared upon tho elaborate trial of the cause, the following faults contributing to the collision seem to me to be clearly established:
1. The Stevens and the schooner were not going “in mid-river, or as near thereto as may be,” as required by the state statute; but at the time of the collision were not more than 400 or 500 feet from the Now York shore. Their contention that they could not go further out on account of ice is not, in my opinion, sustained by the proof. After the collision, there was not ice sufficient to prevent the schooner’s reaching the 'Walla-bout, towards which she headed as Soon as collision rvas feared. Although the distance from the shore might be deemed sufficient to allow the Carter and the bark to have passed in safety in an even tide, the strong cross-tide made this distance insufficient and unsafe; and the disobedience of the statutory requirement was therefore a fault contributing to the collision. The Maryland, 19 Fed. Rep. 551.
2. The tug Carter was guilty of the same fault for hugging the New
Both tugs wore further in fault for not exchanging signals earlier, i. e., half a mile apart, as required by the inspector’s rulos; and for attempting to pass so near each other, port to port, in that part of the river, where the strong cross-tide was certain to create considerable deflection in the course of the bark in tow on such a hawser. The nearness of each to the shore probably prevented each from seeing the other as soon as they ought to have been seen, and this prevented timely signals. The Maryland, supra.
3. I am uot satisfied that the EckhoiT used the prudence and skill that were incumbent oil her, and were easily within her power, in passing from the eddy into the strong cross-tide. It was imprudent, anti Í must regard it as a fault, for the bark to starboard the holm, as she did, oi about the time when she was just running into the true fide, when she could not possibly pass ahead of the Stevens and her tow, and when this starboarding, and the effect of the tide, were both calculated to throw her directly upon the course of the schooner. The only excuse offered is that she headed directly after the tug. This is doubtless right in a true tide, and where such a course would have no tendency to precipitate a collision. It was manifestly wrong in this case, because, in order to keep directly after the tug, it was necessary that the schooner should port her helm, rather than starboard it, at the moment, or a little before the moment, when she began to enter the strong tide that swept across her starboard bow. Instead of that, her helm was at first put to starboard, which increased the effect of the strong title, and made her subsequent port helm wholly ineffectual to avoid the Fbnt. In this faulty use of her helm the case is analogous to that of The Virginia Ehrman, 97 U. S. 309, 315. As in that case, also, there seem to me strong indications that the hark was not keeping a proper lookout, nor taking those precautions which it was well known were necessary in passing into the cross-current at this place;. Though the master was on board, he did not observe the whistles exchanged between the tugs; and if the mate was on the lookout, as alleged, no hail was at any time received from him. The wheel was first starboarded by the wheelsman without any direction or counter-order by the master, who was near him and ought to have observed that it was dangerous to starboard the helm. These circumstances together convince me that the bark was not conducting her own part of the navigation with necessary regard to the special circumstances of the place, and did not exercise that reasonable care
4. A more difficult question is whether the schooner is to be held jointly answerable for the damage caused, as I have already observed, in part by the fact that both the tug and schooner were not more than one-third of the distance from the New York shore, instead of being in mid-river, as required by law. The injury was received by the schooner while she was navigating in an unlawful place. Upon the general principles and análogies of the maritime law, the schooner, as the offending thing, would be held in fault, and answerable to third persons, when her navigation was faulty, and the injury did not happen by inevitable accident. Looking to the maritime law alone, the mere fact that the owners might not be chargeable with any personal fault, or themselves stand in any relation of personal responsibility, would not exempt the ship, which is regarded by the maritime law as responsible to third persons for her proper navigation by whomsoever conducted. As respects third persons injured by the faulty navigation of a vessel, it is immaterial what arrangement the owners of the offending vessel may have made in respect to her navigation, — whether by a master and crew engaged by themselves, or by a master and crew engaged by a charterer to whom the vessel may have been let by a contract of charter, or by a tug-boat with which the owners may have contracted for the navigation of the vessel from one place to another; This rule is applied without question in cases of charter-parties, where the possession of the ship is delivered to the charterers, who navigate her on their own account exclusively, through persons employed by them, without any right of selection or control by the owners. ' In all such cases, the ship, to her whole value, is chargeable for any faults in her navigation or management that cause injury to herself, or to other vessels, or to the cargo of either. It is no defense to the ship that those having charge of her are in no respect under the direction or control of the owners. The ship is regarded as the offending thing, to which persons suffering from her management and navigation are entitled to look for redress; and the owners of the ship must look for their indemnity to the persons in whose charge they have voluntarily placed her. So the faults of a pilot compulsorily taken are by the law of this country faults of the ship, for which the ship is held answerable in damages.
The analogies to be drawn from these undoubted cases of charter-parties, and from the well-settled law of this country holding the ship responsible for the faults of a pilot compulsorily taken on board, would seem to- favor the right of third persons to look for redress directly to the ship that does the' damage, though a tow, leaving the owners of the latter to their legal remedy against the tug in whose charge they have placed her. There are also important practical considerations of general policy and justice which would sustain this claim of third persons to resort to the offending ship; for otherwise the owners of large ships may escape all responsibility for the injuries inflicted upon other vessels, by simply making a contract of towage; and when other vessels and their
Consistently with this view, the English authorities hold that a ship in tow of a tug is liable for her injuries to third persons, though the direct fault may ho that of the tug alone. The existence of a contract of towage does not prevent the ship and her owners from being treated as principals, as respects third persons. Macl. Law Shipp. 287; The Energy, L. R. 3 Adm. & Ecc. 48; The Sinquasi, L. R. 5 Prob. Div. 244; The Mary, Id. 16; The Belknap, 2 Low. Dec. 288.
In tins country, upon the view taken of the law of principal and agent only, in connection with the contract of towage, the tug is held to be the sole principal, and the ship exempted, when her navigation is, by contract, exclusively in charge of the tug. Sturgis v. Boyer, 24 How. 110. The supreme court, however, not only in the case last cited, but in several subsequent cases, have been apparently careful to limit this rule to the facts existing in that ease; namely, where the ship was in the exclusive charge and control of the tug, without officers or men of her own in any way participating in the ship’s navigation. Thus, in The Virginia Ehrman, 97 U. S. 309, 313, Mr. Justice Clifford says: “Cases arise undoubtedly where both the tug and the tow are liable for the consequences of a collision, as when those in charge of the respective vessels jointly participate in their control and management, and the master or crew of both vessels are either deficient in skill, fail to take due care, or are guilty of negligence in their navigation.” See The Mdbey, 14 Wall. 204; The Civilta, 103 U. S. 701. In the case of The Belknap, 2 Low. Dec. 281, Lowell, J., to some extent reviews the various decisions on this subject, and comments upon the uncertain and unsatisfactory condition of the law.
In the case of Sturgis v. Boyer, supra, neither the master nor the crew were on hoard; the entire management of the ship was with the tug. In the present case, the master and crew were all on board, participating in, if not controlling, the navigation of the schooner. There is no evidence of the relations of the parties, except the mere fact that the tug had the schooner in tow under some contract to take her up the East river. In sueh a case, doubtless, the general direction of the course of the two vessels is determined by the tug. The tow follows her lead. But the tug, in directing her course out of the middle of the river, contrary to law, was at the same time violating her implied contract of towage. The tow was not bound to acquiesce, and to follow the tüg, rather than obey the statute. A large vessel like the Flint has it in her own power to control very considerably her own course and that of the tug. She is bound to exercise this power, so far as she reasonably can, when she is being directed illegally by the tug, to the imminent peril as in this case of
The libelant is entitled to recover half his damages against the bark and.the owners of the steam-tugs. The latter, having setup the statutes in limitation of liability, are entitled to the benefit of those statutes, so far as they extend, if the owners are not personally in fault.
A reference may be taken to compute the damages.
