160 F.2d 510 | 2d Cir. | 1947
The Pennsylvania Railroad Company appeals from an interlocutory decree in the admiralty, holding it solely liable for a collision in New York Harbor off the Battery upon a clear afternoon on Christmas Day, 1944. The railroad’s tug, “Chester,” was rounding the Battery, bound up the East River with a railroad float on her port hand; the collision was between the starboard corner of the float and the starboard bow of the motor vessel, “Clevelander,” which was coming down the East River, also rounding the Battery, and bound for Edgewater, New Jersey. The testimony was, as is usual in such cases, completely at odds, and it would be impossible for us to reach any certain conclusion from the printed record; thus it is especially proper to treat as final the findings of the judge who saw all the witnesses. The most im
The navigation of the “Chester” was inexcusable, but we cannot escape the conclusion that the “Clevelander” was also at fault. Although the actual courses on which each vessel was bound were safely port to port, they were only 100 or at most 200 feet apart, and were therefore within the rule,
This failure was a statutory fault, and the only question is whether it had anything to do with the collision; or, more properly, whether the “Clevelander” has shown beyond peradventure that it could not have had.
Besides, it can be demonstrated that it was a gross fault for the “Clevelander” to* accept the “Chester’s” proposal for a starboard passing, for the vessels could not possibly have cleared each other even if the -distance between their courses had been 100 instead of 200 feet, as the judge thought more probable. The “Clevelander” was 250 feet long, and upon her turning circle her stern would not have left the course she was on, even under a hard over helm, for 600 feet; her bow would indeed have gone off to port 150 feet but that would have put her either athwart the “Chester’s” course, or she would not even have reached it. Meanwhile the “Chester” would have been turning to meet her, and would scarcely have left her own course, laden as she was, within the same distance. With vessels not more than 700 or 800 feet apart the proposal for a starboard to starboard passing was patently crazy; and its acceptance went beyond the limit we can accord to a decision even in extremis. We cannot close better than by quoting the language of a great admiralty judge: “The lesson that steam vessels must stop their engines in the presence of danger, or even of anticipated danger, is a hard one to learn, but the failure to do so has been the cause of the condemnation of so many vessels that it would seem that these repeated admonitions must ultimately have some effect.”
Decision reversed; damages divided.
§ 203, Title 33 U.S.C.A.
The America, 92 U.S. 432, 23 L.Ed. 724; Chester A. Poling Inc. v. United States, 2 Cir., 55 F.2d 921.
The John I. Brady, 5 Cir., 131 F. 235; The Richmond, D.C.S.D.N.Y., 124 F. 993; American Dredging Co. v. Vacuum Oil Co., D.C.E.D.Pa., 11 F.2d 884.
The Victory and the Plymothian, 168 U.S. 410, 18 S.Ct. 149, 42 L.Ed. 519; Construction Aggregates Co. v. Long Island R., 2 Cir., 105 F.2d 1009.
The Pennsylvania, 19 Wall. 125, 22 L.Ed. 148.
The New York, 175 U.S. 187, 207.