44 F. 392 | S.D.N.Y. | 1890
The above Gross-libels were filed by the owners of the steamers Niagara and Express, each about 298 feet long, to recover the damages sustained by them, respectively, through a collision in the East river, a little before noon on December 2, 1889, just above Corlear’s Hook. The steam-tugs Starbuck and Charm were made parties defendant in the original.cause under the twenty-ninth rule, upon the petition of the owners of the Express. Upon the filing of the petition, the own
The Niagara was coming down the river in tow of the two tugs, without any steam-power of her own, bound for the North river. The tide was near the last of the ebb in mid-river, running down not over a knot an hour, while the current was already setting upwards on both shores. The tug Starbuck was leading, with a hawser of from 120 to 150 feet attached to the Niagara’s starboard bow. The Charm was along-side the Niagara, a little aft of amid-ships on her starboard side. The Niagara had been taken from the Ninth-Street dock, New York. She came down river within 100 feet of the ends of the piers to Third or Fourth street, when the tugs pulled sharply out into the river, so that when abreast of the Houston-Street ferry the Niagara headed for Havemeyer’s on the Brooklyn side, at South Third or Fourth street, a change of at least three points. She proceeded to port towards mid-river, and swung gradually to the southward, so as to head for the upper part of the navy-yard, or Cobb dock. The pilot of the Charm was on board the Niagara, directing her navigation, in conjunction with the Niagara’s captain, who was also present at the wheel, and gave some orders. When nearly abreast of the Broadway ferry, Brooklyn, and on a line running from the upper slip of the Grand-Street ferry, Now York, she was struck on the starboard bow by the starboard corner of the Express, a new square-headed steam car-float, which had just rounded Corlear’s Hook, coming from Rutgers street upon a trial trip up the East river. On leaving Rutgers street, the Express went out into about mid-river, and then up on the usual course. While rounding the hook, and before she had got headed straight up river for the reach above, the Niagara and her tugs were seen in about mid-river, and apparently off about Stanton or Riv-ington street, all heading towards the Brooklyn shore, and all showing their starboard sides. The master of the Express, deeming it imprudent to attempt to pass on the Brooklyn side, soon after gave a signal of two whistles, and, getting no answer, stopped her engines, and gave a second signal of two whistles, to which no answer was received. At about the same time the Starbuck took a sheer towards the New York shore, whereupon the Express reversed strong until the collision. At the time the last signal was given the Express was pointing nearly upriver, and for the stern of the Niagara, which was probably about 800 yards distant. The course of the Niagara was changed about a point by the sheer of the Starbuck, and by her own hard a-port helm. In behalf of the Express it is contended that the collision -was caused by the Star-buck’s sheer, and the Niagara’s change of course, and through her improper presence on the Brooklyn side of the river, and inattention to the signals of the Express. On the part of the Starbuck there is some evidence that a signal of one whistle was given in answer to some signal from the Express, that was indistinctly heard by the Starbuck and not understood, and that there was one blast from the Charm when the vessels had approached very near each other. Neither of these signals were beard on the Express.
1 do not perceive any fault in the Express in these maneuvers. The collision, as it seems to me, was brought about by three faults on the part of the tugs and the Niagara: (1) Unnecessarily going to the easterly side of the channel, and with her course still kept directed towards the Brooklyn shore; (2) in not signaling herself, nor properly answering the signals of the Express, as required by the regulations; and finally (8) in attempting to haul the Niagara towards the New York shore and across the course of the Express, at the time of her last signal, evidently through inattention to the signals, the position, and the heading of the Express. From the testimony of several disinterested witnesses, as well as of many others on board the Express, there is no doubt that the signal whistles of the Express were clearly sounded, and ought to have been beard and heeded by the Starbuck and Niagara. There are few circumstances in which tbe need of proper signal whistles, such as the regulations expressly require, is more urgent than in a case like this, where vessels are rounding a sharp bend in the river, and one of them is a large ship upon a hawser without motive power of her own. The testimony of the pilot of the Starbuck in reference to his hearing and giving whistles seems to me quite unsatisfactory. It is plain that there was no endeavor on his part to come to any common understanding by signals, as it was his duty to do. Ho says he did answer a signal from the Express, but without exactly knowing what that signal was. He got no reply, and did not repeat his own signal. This is not a compliance with the regulations. He seems to have taken it for granted that, the Express would keep out of his way; and, I think, he gave her very little attention till the last signal. There was also no lookout proper on either the Niagara or the tugs. I am not satisfied that any signal whistle was given by the Starbuck until she was so near that it was of no use. Her mate remembered none; and none was given by the Charm until the vessels were
There was no cause and no. necessity for the Niagara to be upon the easterly side of the river. The statutory duty to go in mid-river and pass to the right required her, when nothing was in the way, to keep on the westward side. Her own evidence leaves no doubt that she could have kept there at all times had any serious effort been made to do so. The chart put in evidence shows no reason why, after leaving Ninth street, she should not have hauled out towards the middle of the river anywhere below Eighth street, with a tow drawing- but 15 feet. This would have
I do not think the speed of the Express was at any time substantially above the statute limit of eight miles an hour, allowing about a knot for the ebb current. If at one time previous it may possibly have been a little above eight miles, which I doubt, it was reduced by stopping her engines at such a considerable distance from the Niagara as not to constitute a proximate cause of the collision. At the time when her last signal was given, she was running, I think, at the rate of loss than seven knots, and from that speed she would stop more quickly than the ordinary finer line steamers of the same maximum speed; that is, probably in less than one and a half minutes, and in less than 550 feet. The Normandie, 43 Fed. Rep. 151, 160. The Niagara, coming down with a current of about a knot, was probably going at the rate of two and a half or three miles an hour. Though this speed was somewhat checked, there remained sufficient speed to account for the damage done in the case of vessels so large as these. The above rules, as to the navigation of the East river, have been constantly applied in this court, and have been affirmed in the circuit court. See The Rockaway, 38 Fed. Rep. 856, affirmed, 43 Fed. Rep. 544; The Chas. R. Stone, 18 Fed. Rep. 190; The Garden City, 38 Fed. Rep. 862; The Anglia, 41 Fed. Rep. 607; The Britannia, 42 Fed. Rep. 67. They seem to me to require the Express to be absolved from blame, and the tugs to be held in fault, irrespective of the rule of the starboard hand, which is not necessarily applicable in turning the bends of rivers. The Velocity, L. R. 3 P. C. 44; The John S. Darcy, 29 Fed. Rep. 644, 647; The Oceanus, 5 Ben. 545.
A decree in the second libel may be entered in favor of the owners of the Express for their damages and costs against the two tugs, whose stipulations are sufficient to answer her demands. The Bordentown, 40 Fed. Rep. 682. In the first libel, the Express is entitled to a dismissal with costs. In the first suit no relief was demanded by the owners of the Niagara against the tugs. If relief is sought in her favor against them, I will hear further argument on the part of the tugs upon the question