29 F. 98 | S.D.N.Y. | 1886
Considering that Gedney’s channel across the bar is the principal, if not the only, thoroughfare for deep draught vessels in coming into and going out of the harbor of New York, it is a matter of surprise as w'ell as of regret that where tw'o vessels are going dowm the hay, and are approaching that fairway, the one by the Swash channel, and the other by the Main or Horseshoe channel, any doubt or uncertainty should oxist wdiich of them should keep out of the way of the other. It is still more to be regretted that any doubt should oxist, since onr adoption of the new international rules by the act of March 3, 1885, (23 St. at Large, 438,) whether the case is governed by those regulations, or by the rules previously existing and embodied in the Revised Statutes, (section 4233,) and by the local rules adopted by the supervising inspectors. And yet, at tho very threshold of this caso, I find a difficulty and embarrassment in determining which set of rules is applicable to vessels navigating in harbors within our coast waters that I have not boon able satisfactorily to solve.
The enacting clause of the act of March 3, 1885, provides “that tixe following ‘Revised International Rules and Regulations for Preventing Collisions at Sea’ shall he followed in tho navigation of all public and private vessels of the United States upon the high seas, and in all coast waters of the United States, except such as are otherwise provided for.” Then follow the twenty-seven articles of the new' regulations. The concluding section of tlio act is a repealing clause, declaring that “all law's and parts of laws inconsistent with the foregoing revised international rules and regulations for tho navigation of all public and private vessels of the United States upon the high seas, and in all coast waters of the United States, are hereby repealed, except as to the navigation of such vessels within the harbors, lakes, and inland waters of the United States.”
The exception as regards “lakes and inland waters of the United States” seems to be surplusage, for the reason that lakes and inland waters do not fall within the enacting clause of the statute, which applies only to “the high seas and coast waters.” This language may have been employed from superabundant caution, to indicate that the old rules were unchanged as respects the “lakes and inland waters.” The word “harbors” cannot.be construed in the same sense, a sociis, as meaning harbors only that are situated upon the lakes or inland waters, without taking from that word all effect whatsoever; since that meaning is already covered by the words “lakes and inland waters,” without the use of the word “harbor;” while, as it stands, the word “harbor” has an important significance, as a strict exception to the repealing clause immediately preceding.
On the other hand, inasmuch as the new rules are a revision of the old, and aim to supply several of their deficiencies; as they are designed to conform to the rules already adopted by the principal maritime nations of the world; and as they cover the whole ground of the former rules, and, in general, are plainly designed to supersede them; and as no object is apparent in retaining the old rules within the harbors.of the seaboard; and as strong reasons exist against the retention of two sets of rules, applicable to the same ocean Voyage,—it is difficult to suppose that it was the intention of congress, by this exception, to continue the old rules in force as respects ocean voyages terminating within the seaboar.d harbors. Moore v. American Trans. Co., 24 How. 1, 36; The Garden City, 26 Fed. Rep.
Upon this view of the possible intention of the exception as respects tlio use of the word “harbor,” if its effect were limited to trips confined to the harbor only, so as to give the word some effect,—■ that is, to navigation beginning and ending within the harbor,—the same practical difficulty would arise in another form, and the same liability to fatal confusion as between foreign bound vessels, and vessels navigating the harbor only; between which there is equal necessity for intelligible rules and a common understanding. I see no way out of these various difficulties that would not altogether nullify tli© effect of the word “harbor”'in the exception, by rendering it wholly superfluous, like the words “lakes-and inland navigation.” The subject should, receive, I think, further legislative consideration, and it is hoped that the difficulties referred to may bo remedied.
The place of collision being inside of the bar, and upon pilotage ground, may be said, in a general sense, to be within the “harbor” of New York; and yet being in the lower bay, and not in a part of the bay where vessels could either moor or safely lie at anchor, it is not within the meaning of the word “harbor” in its most strict and proper sense; namely, “a safe station for ships; a place of refuge, shelter, rest.” Worcest. Bid.
The fair inference from the pleadings and the testimony, moreover, is that the pilots and officers of each of the vessels regarded themselves and the other vessol as sailing under the new rules; and, this being the understanding of both, i shall treat the case, as respects the question of fault, according to the now rules, by which they both deemed themselves governed.
1. The first and principal question is whether, under all the circumstances of the case, the two steamers are to be regarded as crossing vessels, under tlio sixteenth article of the new rales; or whether the Aurania was an “overtaking” vessel, within the twentieth article. If the crossing rule governs, then the Eepublic is plainly in fault for not keeping out of the way of the Aurania, which was upon her starboard hand. If the Aurania was an overtaking vessel within the meaning of the twentieth article, then, under the language of that article, the overtaking rule controls, the Aurania was bound to keep out of the Eopublic’s way, and was in fault for not doing so.
By article 20 it is declared: “Notwithstanding anything contained in any preceding article, every ship, whether a sailing ship or a steamship, overtaking any other, shall keep out of the way of the overtaken ship.” Article 22 of the former regulations was to the same effect, excepting the words “notwithstanding anything contained in any preceding article,” which are new. There is no doubt that the language of the twentieth article was intended to remove any doubt that might
The terms “crossing” and “overtaking” are not mutually exclusive. A vessel may be crossing another's course, and at the same time overtaking her, in a certain sense; or she may be overtaking another in a general or popular sense, or in reference to certain aspects, and clearly not be an overtaking vessel in the sense of the rules of navigation. A faster vessel, sailing a racing voyage across the Atlantic, and starting after her rival, might, in the popular sense, be said to overtake and pass the other whenever she got nearer to her destined port, though at no time sailing within sight of the other. So two vessels beating up stream, against a head wind, might be so navigated as to be always sailing on opposite tacks. The hinder vessel, if all the time gaining on the other, would in one sense be an overtaking vessel,—that is, overtaking in reference to their general progress ; but she would not be an overtaking vessel in the sense of the rules of navigation so long as the two were running on opposite tacks. The vessels, in that case, would be crossing vessels, and the crossing rule would apply, though the one to leeward was gaining upon the other. When beating, and on the same tacks, the faster vessel, if behind, would be overtaking in the sense of the rules, and the overtaking rule would govern. So two vessels sailing in independent channels, separated by dry land, as in the two channels that pass Blackwell’s island, or vessels sailing in channels separated for a considerable distance by impassable shoals, are not, for the time being, within the scope or intention of the rules of navigation, though the one that went ahead of the other in a different channel might be said, in a certain sense, to overtake and pass her. The rules are made to avoid collisions. They are applicable in circumstances only where there is some occasion for the vessels to heed each other, and from the time only when the need of precaution begins. The Nichols, 7 Wall. 656; The Cayuga, 14 Wall. 270. The terms used in the rules are, moreover, used in the nautical sense, and must be applied as seamen are wont to apply them. The Franconia, 2 Prob. Div. 8.
The libelants insist that the Aurania, in this case, was an overtaking vessel, because, at the time when the signal whistles were exchanged,—i. e., when the vessels were about a half mile apart and from
Each of these contentions is, perhaps, correct, in a certain sense of the word “overtaking;” but neither, I think, in the sense of the rules of navigation. These rules, as I have said, have respect only to the liability to collision, and do not come into operation until the need of precaution begins. When the Aurania was at the south-west spit, in an independent channel, separated from the Republic, which was then in the Swash, by two miles of impassable shoals, and over three miles distant from the Fairway buoy, these rules had no application to them. Either vessel could move in any direction she saw fit without the slightest present danger to the other. Neither was in any way bound to pay attention to the other at that distance. The rides, therefore, had no active operation upon either at that time, (The Monticello, 17 How. 152, 155; The Dexter, 23 Wall. 69, 75;) and, when they approached each other near enough to make it necessary or proper to regard each other’s movements, the rules became applicable according to the situation in which they then were. It was immaterial how either vessel reached the situation in which the rules first became applicable. It would he wholly inadmissible to apply contrary rules to the same situation, according as the faster vessel had come through the Narrows, or from South Amboy; or had passed the other an hour before, or had not passed her at all. The rule applicable must depend upon the actual situation at the time when the necessity of precaution begins. Everything prior to that I hold to he immaterial, except as it might give each a knowledge of the other’s intentions. So the mere fact that the faster vessel has a larger distance to travel to reach the point where their courses intersect is also immaterial. In almost every case of crossing vessels, one has a longer distance to travel than the other, for it is seldom that both are going at the same speed; but that fact does not bring them within the overtaking rule. The faster vessel may be approaching the other at any angle from abeam to eight points forward of the latter’s beam, and may have a much longer distance to travel to reach the point of intersection ; but no one would call such a vessel an overtaking one in the nautical sense. They would plainly be crossing vessels under the sixteenth rule.
In the case of Whitridge v. Dill, 23 How. 448, and The Cayuga, 14 Wall. 270, the supreme court, in stating the general rule as to the duty of an overtaking vessel, also indicate the meaning and the application of the rule. In the latter case the court say:
*106 “Undoubtedly, where two ships are running in the same direction, the ship astern, if sailing faster than the ship ahead, is, in general, bound to adopt the necessary precautions to avoid collision. * * * Where a steamer astern, in an open sea and in good weather, is pursuing the same general course as the one ahead, and at greater speed, the steamer astern, as' a, general rule, is required to give way, or adopt the necessary precautions to prevent collision, as the steamer ahead is entitled to the road.”
The Cayuga and the ferry-boat James Watt were in. that case coming down the North river, converging at an angle of about three points; the former heading about S. S. W.; the latter bound from Hoboken to Barclay street, and heading about S. by E. The Cayuga claimed that the ferry-boat was an overtaking vessel hound to keep out of the way, and that, when a half mile distant, she bore off the Cayuga’s starboard quarter. But the court found the facts otherwise, and that, though the Watt was somewhat faster, she was but a “little behind” the Cayuga when the need of precaution began. The court held that the overtaking rule did not apply, and say that, even supposing that the Cayuga was at first slightly ahead, “the relative situation was that of the fourteenth, [crossing,] and not of the seventeenth, [overtaking,] rule. Precautions at that time were not necessary, as the. distance between the two steamers, measuring east and west, [nearly abeam,] was very considerable; but they were moving on converging lines; and, as they advanced, that distance was fast reduced, which soon created the necessity for precautions to prevent collision; and the testimony entirely satisfies the ■court that, when the necessity for precaution commenced, the two were nearly abreast.” As respects the greater speed of the ferryboat., the court say;
“E-very vessel overtaking another vessel, it is said, shall keep out of the way -of the vessel ahead; but that rule cannot properly he applied, in this case, as ■the two steamers were crossing or running- on intersecting lines, in which •case the-question is not, in general, affected by the comparative speed of the two vessels, nor by the fact that the one or the other was slightly ahead when ■the necessity for precaution commenced. Undoubtedly, where two ships are ■running in the same direction, the ship astern, if she is sailing faster than ,the ship ahead, is, in general, bound to adopt the necessary precautions to . avoid a collision; but it is clear that the rule does not, in general, apply in a -case where -the ships are crossing, or are distant from each other on a right .line, and are,running on intersecting lines.”
The.language of the new rule does not weaken the force of the remarks here quoted as regards the meaning of the phrase “overtaking vessel,”.in the-sense of the rules of navigation. To constitute that ■relative situation .one vessel must be ahead, and the other more or less astern, when.the need of precaution first arises. A vessel coming up from abe.am, or not aft of the other’s beam, is not astern of the ■«other, and is, therefore, not an overtaking vessel in the sense of the ■rules. On that ground, in the case of The Peckforton Castle, & Prob, Div. 11, that ,vesselv.v?as held to be a crossing vessel, and not an -overtaking- oneu
Whatever rule be adopted, it must apply at night as well as by
In the case of The Peckforton Castle, 3 Prob. Div. 11, two of the judges stated that, without dissenting from this rule, they should consider it as open for further consideration in any subsequent case, but without indicating in which direction they thought the rule adopted might be modified. The case of The Cayuga, 14 Wall. 270, before cited, is in harmony with this view; for, though the ferry-boat was “a little behind” and “nearly abreast,” she was evidently a little aft of abeam, but less than two points; and it was held to be a crossing, and not an overtaking, vessel. I shall continue to follow this rule, therefore, until some better is found, or until it is modified by some higher authority.
The time when the whistles were exchanged may be fairly taken as the time recognized by both ships when precaution as respects each other was necessary or proper. This was probably from five to seven minutes before the collision, and in ample time for either to avoid the other. They'were then estimated to be about a half mile apart. They were in what is described as the “fourth situation” of the supervising inspector’s rules, and their local rules, if applicable, (rules 2, 6,) required these two vessels, when within that distance, to signal each other in order to indicate their intentions, and to come to a common understanding. The crossing or the overtaking rule must therefore be applied, according to their relative situations, courses, and bearings, as they existed at that time. The Republic claims that the Aurania then bore several points aft of her beam; and many of her witnesses so testify. An equal number of the Aurania’s witnesses say that each then bore forward of the other’s beam. It is unnecessary to dwell upon the great contradictions and inconsistencies to be found in the direct testimony on this subject, because their bearings at the time of the whistles can be determined from the speed of the
Speed. The time and distance from Governor’s island (Port William) to the place of collision being known, the determination of the final speed of the two vessels during the six or seven minutes prior to the collision would be a simple eomputaton, were it not for two additional elements that need to he taken into account, viz., the effect of the tide, which operated unequally against the two vessels while the Eepublic was in the Swash channel; and, secondly, the fact that the Republic’s speed was all the time increasing. Capt. Irving estimates this increase to have been from a speed of 10 knots through the water, when passing Governor’s island at 2: 05 p. ar., to 11J- knots through the water at the time of the collision, at 8: 24 p. it. The pilot says that in the Swash the tide was ahead, and “a good deal stronger than in the main channel.” Taking the difference to be a half knot an hour, the excess over the main channel rate, during the 18 minutes that the Republic was in the Swash, would be equivalent to an addition of 900 feet to the distance run by her. Prom the official chart (Exhibit 2) it appears that the distance from Governor’s island, by the dotted course, through the Swash channel, to the Republic’s place at the collision (550 feet west of the Pairway buoy) is 89,060 feet; to which if 900 feet be added, we have 89,960 feet traversed in 79 minutes, or an average of 11.24 knots against tide at the main channel rates.
One other entry in the Republic’s log, that, if correct, would aid in determining her speed, I am obliged to reject, for its obvious erroi*, viz., the entry: “3:17 p. m. Sandy Hook Light abeam, bearing S. by W. W. true. This would give a rate of less than 10 knots from there to the collision,—a rate so clearly imcompatible with all the rest of the evidence, and with the other data, as to prove some error in the observation or in the entry.
If the flood-tide north of Sandy Hook, during the last quarter, runs, as is said, nearly north, the Republic would have been retarded but very slightly by the tide during the last four minutes; and this would reduce her average from the Narrow's by about one-t-welfth of a knot only, and make a corresponding decrease in her final speed; but in that case her speed by .land would be nearly her speed through the water! From the data derived from the Republic’s log her speed must therefore have been, for the few minutes preceding the collision,.
This result differs considerably from the testimony of tho engineer and master as to the Republic's speed; but it is manifest that their testimony is from estimates only, made up afterwards, and not from any strict actual observation,) made at the time. The number of revolutions per minute was not actually observed; no entry of the number was made; and the engineer’s estimate of 45 or 4(5 at the time of the collision, with 10 per cent, slip, gives but 12.35 knots through tlie water, which is a half knot less than the average from tho Narrows, counting nothing for tho certain gradual increase in speed. The number of revolutions found entered in the log, viz., 3!), would give but 11.(53 knots through the water, which is far from sufficient to have brought the Republic to the place of collision. If that entry was from any actual observation, the observation must have been made not long after passing Governor’s island. Not only, therefore, are the estimates of these officers insufficient, but any mere unverified estimates are entitled to little weight as against the results derived from the known time and the distance traversed.
Aurania’s Speed. The Aurania, at 2:05 p. m., was but a little astern of the Republic, between Governor’s island and Castle Garden. Her engines wore then first put at continuous “full speed.” She had been stopping, backing, and slowing before that; and it does not appear how long after 2:05 it would take for her to acquire full headway. She must have got full headway, however, by the time she passed the Republic, which, as the evidence shows, was not far from midway between Bedloe’s island and Robbins reef, i. e., about 10,000 feet below Governor’s island. The Republic must have readied that point about nine and a half minutes after passing Fort William. From this point to the Aurania’s place at the time of collision, the distance by the sailing (dotted) course is about 94,700 feet. To this must be added the amount of the Aurania’s loss of speed, at the rate of about two and a half to three knots, according to the evidence, during six minutes of “half-speed,” while she was passing Flynn’s knoll, viz., about 1,700 feet; and also 400 feet for the effect of her port holm (two revolutions per minute) in rounding 11] points, and for the curve in her course,—making in all the equivalent of 96,800 feet, traversed in 69]-minutes, an average of 13.74 knots, against an average tide of about 1 knot, or 14.74 knots through the water. If the tide north of Bandy Hook be taken as running north, tho Aurania’s speed through the water would be 14.(53, and her speed by land nearly the same.
This agrees nearly with the rate (14.72) given by the 56 revolutions per minute, entered in the Aurania’s log, and which the engineer said were the full-speed revolutions for the hour in which they are entered, as nearly as he could then judge. Tlie entry of the rale between 2
The time from buoy No. 10 to the collision also indicates that there was no material increase in the Aurania’s speed, and agrees very closely with the previous estimate. The pilot testifies that he was off buoy No. 10 when he'ordered “full speed” ahead after six minutes’ “half speed;” and the entry in the log shows that the time was 3:05 p. m. The distance to the place of collision by the dotted course was 25,400 feet. To this should be added the 400 feet before mentioned, and probably 400 or 500 feet of the whole 1,700 feet, for loss of headway from the previous half speed. This would make about 26,250 feet traversed in 19 minutes, or the rate of 13.64 knots; i. e., very nearly the same as the whole average, and showing no increase. The reason why the Aurania’s speed did not increase is, according to the testimony, that she was allowed only a certain limited pressure of steam, viz., about 80 lbs., while upon pilotage ground, and that pressure was evenly maintained by the regulation of the throttle valve; while the Eepublic was not so limited, but was using all the steam her rising fires would give until complete full speed should, be reached. The close approximation of these several results as to the Aurania’s speed is pretty convincing proof of their substantial accuracy. They correspond more nearly than could have been anticipated, considering that, in noting and entering the time by the clock, fractions of a minute were disregarded.
Taking the mean of the above computations, the result is that the Aurania was going through the water, during the few minutes before the collision, at the rate of about 14.68 knots; the Republic, from 13.17 to 13.50 knots,—a difference of from 1.18 to 1.51 knots between the two vessels. This would make the Aurania 'a little less than two miles ahead of the Republic,at the time the latter turned into the Swash channel, which agrees with the estimates of the Aurania’s witnesses.
The Photograph. The conclusion drawn from the above data as to the comparatively small difference in the speed of the two vessels is strongly confirmed by the photograph of the Eepublic, taken by a passenger on the Aurania a short time before the collision. Upon careful examination I find that the conditions imposed by the photograph do not admit of a greater difference of speed than from one and one-fourth to one and one-half knots. The photograph was taken, from a point on the Aurania’s port-rail, 179 feet aft of her stem.. • The picture shows the Aurania then ahead. Computation
These conclusions, derived from data least liable to error or mistake, accord entirely with a great mass of evidence on the part of the Aurania; and, notwithstanding tho opposing testimony of the Republic’s witnesses, I cannot hesitate therefore to adopt them as fixing approximately, and beyond reasonable doubt, the difference in speed of tho two vessels at the time of tho collision as not greater than from one and two-tenths to one and five-tenths knots.
With this small difference in speed, it is immaterial, as respects the overtaking rule, whether the courses of the two vessels, after the Republic got straightened out for the Fairway buoy, converged at an.
The place where, if anywhere, the Republic would have had the Aurania most nearly abeam, or abaft her beam, was at the moment when she got straightened out for the Fairway buoy after rounding ■out of the Swash channel. And at that time, whichever of the two theories as to their courses be adoptedj the Aurania was not 'astern of the Republic, but abreast of her, or nearly abreast,—precisely as in the case of The Cayuga, ut supra. Her stem was probably no further from the buoy than was the stem of the Republic. After that the Aurania was constantly drawing evidently ahead. Whether, therefore, the time when the whistles were exchanged, or the time when the Bepublic got straightened for the buoy, be adopted as the time when the rules became applicable, neither vessel was astern of the other; and, their courses being converging, it follows that they were crossing vessels, under the sixteenth rule, and that the Bepublic was bound to keep out of the way of the Aurania. She had ample dime and space to do so,—if not by keeping more to the north, then by a little slackening of speed, and dropping astern,—and for not doing either the Bepublic must be held in fault.
2. In considering whether the Aurania, though having the right of way, is chargeable with fault in not doing all that was obligatory upon her to avoid this collision, it seems necessary to determine whether the two vessels were sailing under the larger or the smaller angle of convergence, as claimed by them respectively; and also to determine, so far as possible, what were the immediate causes that precipitated the collision, and what was the angle of convergence at which the vessels approached the Fairway buoy.
The Bepublic makes this angle of convergence, from the time she
The coinpass courses of both vessels, as claimed by each, are mainly mere estimates, or opinions made up afterwards. With the exception of the wheelsman of the Aurania, none of the officers engaged in the navigation of either vessel observed her heading by compass. The masters and pilots of both say that they did not observe the compass, nor steer by it; but by the marks and buoys. Each, they say, beaded for the buoy; the Aurania keeping the buoy directly ahead, or a little on the port bow; the Republic keeping it, as her witnesses say, one-fourth of a point on the starboard bow.
The effect of tho flood-tide, aided by the southerly wind, was, however, such as to make the actual path of each about one-quarter of a point more northerly than her heading. Though this is unimportant as respects their relative progress, it is important in its bearings on the testimony as to the specific courses, and as to the headings of the vessels to which tho witnesses have testified. As the Republic, after straightening out, kepi the E airway buoy about a quarter of a point on her starboard bow, she could not possibly have kept its bearing the same as she continued to approach it, if her heading by compass remained the same. Tho tide, and her own nearer approach, would have constantly caused the buoy to broaden off rapidly to starboard. To have kept a straight compass course for it, she would have been obliged to bead about a quarter of a point to the southward of tlie buoy, and to have kept it a little on her port bow. As, however, she kept it on her starboard bow, sho must either have changed her beading from time to time by porting, or else have approached it by a continuous curve under a slightly port wheel; and in either case, her heading, by these changes, would be considerably more to the southward when she got near the buoy than when she was first straightened out. Upon examination I am satisfied that this would have required a change on her part, during the interval, of nearly one point. If she first straightened out heading E. by B. southerly, she would have headed nearly E. S. E. at the collision even without any deflection from any other special cause; if headed E. S. at first, she would have ended about E. by S. S. There would be less change in the course of the Aurania, from the fact that she was kept headed a little to the southward of the buoy. But the testimony of the pilot and wheelsman indicates that she was headed very nearly for the buoy; and, as she must have drifted considerably
The probabilities of the case, and the weight of proof, in my judgment, show that, after the Eepublic rounded out of the Swash channel, the vessels were inside of the dotted lines, and upon courses not converging more than one and one-half points,—at least not until very shortly before the collision. A great mass of witnesses, including nearly all on the part of the Aurania, and many on the part of the Eepublic, whose depositions were taken before the trial, show that, when the Eepublic got straightened out for the buoy, the two vessels were quite near each other, much nearer than from 500 to 700 yards, which the Eepublic’s theory requires, and going upon approximately parallel courses; differing, as the Eepublic’s fourth officer estimated, by a point or a point and a half only. This could only be when both were much within the dotted courses.
The pilot and the master of the Aurania locate the Aurania above the dotted line. The open Point Comfort lights confirm it. Her porting afterwards, though denied by the wheelsman, is proved by several witnesses, some of them disinterested, who observed her diverging wake, and this porting, with her' straight approach thereafter very nearly in line with the buoy, without again starboarding, necessitates the northerly course. Nothing in the depth of water on rounding the south-west spit, or in the other circumstances, renders this course improbable; while convenience in turning southwards after passing the buoy made a course north of the dotted line desirable. Baldwin, the wheelsman, says he did observe the wheel-house compass, about the time of the whistles, probably after the first slight porting, and that it was S. 82 deg. or 83 deg. E. This, with the 9 deg. correction for deviation, gives 1 deg. or 2 deg. N. of E. for her heading at that time, or nearly E. §- N. for her actual path. This direction, subsequently changed, as it must have been, to keep the buoy nearly ahead, would have brought her path nearly east at the collision.
As respects the Eepublic, both her libel and her answer to the cross-libel state, in effect, that, not long after straightening out for the buoy, it bore E. S., and a little on her starboard bow. All her witnesses say one-fourth of a point on her starboard bow. This would necessarily bring her below the dotted course. A party is not allowed any considerable departure from such deliberate allegations in its pleadings, under the exigencies of the trial, except on satisfactory explanation and clear proof, which certainly do not exist here. The Sarah Ann, 2 Sum. 206, 209; The S. Morgan, 94 U. S. 599— 622. Besides the concurrence of a great majority of the witnesses, as above stated, there are other strong proofs that the Eepublic’s course was not that which she now contends for.
(1) The pilot, as I understand him, states explicitly that in run
(2) Again, all say they did not begin to starboard in coming out of the Swash till below buoy No. 4, which is about 1,250 feet ^bove the point of divergence. Capt. Irving says it was one or two lengths below. With her holm only two-thirds over, the Republic could not round from a position two lengths below No. 4, and be north of the dotted course, but would fall considerably to the south of it.
(3) More conclusive is the fact that the course of E. by S. southerly, with the buoy one-fourth of a point on the starboard bow, which all her witnesses testify to, could not possibly have brought the Republic to the place of collision. That course adhered to, with the flood tide, would have carried her 600 feet to the northward of the buoy, far out of the A urania’s way.
(4) Equally conclusive is the further fact that if the angle of convergence had been 25 deg., as the Republic claims, the distance of tho two vessels apart one minute before the collision would have been nearly 700 feet; or, if the Aurania’s course were as she claims, about 500 feet only. But at either of these distances apart, one minute before the collision, with both vessels heading for the buoy, there is no possible explanation of tho collision consistent with tho Republic’s theory and testimony. No possible suction, port helm, or other influence from the Aurania could havo had any sensible effect upon tho Republic at that distance, or have sensibly neutralized or delayed the effect of tho hard a-starboard helm which her officers say the Republic was then under, and in spite of which, as they say, the vessels came together.
The facts show that the point of collision was about 550 feet west of the buoy, and not materially north of it. Had the Republic been ■sailing a course north of the dotted course, and at an angle of 25 deg.,
I do not find anything inconsistent with this view in the testimony of Stephens, the first officer of the Aurania, or in the diagram illustrating it. A difference of a few feet only in his position at the moment when he noticed the four masts range all in one past the lighthouse -would reduce the angle to one and one-half points, and that would agree well with his estimate of the distance and the time, viz.,, about a half minute before collision. But, besides this, the Republic, he says, was already swinging when he saw her, and this swinging must have increased her previous angle. The fourth officer of the Republic says they “got the course E. by S. southerly about the time [3:17 p. m.] when Sandy Hook light bore abeam S. by W. J W. true.” This, as I have already said, is an erroneous entry, and I cannot attach any weight to it. He does not even say that he observed her compass heading at that time; and there is no reason to suppose that his idea of the ship’s heading, which he was not called on to observe, and did not enter, is any more accurate than the entry which it was his business to make, and which is certainly incorrect. The great distance of the light (some two miles) doubtless made exact observation more difficult, and there was not then apparently any occasion for accuracy.
The shadow of the projecting grating against the ship’s side, shown by the photograph, affords some confirmation of the Aurania’s contention. If the computations could be strictly relied on, they would be conclusive. The length of the shadow is apparently about seventy-two one-hundredths only of the length of the grating; and that indicates an angle of 54 deg. 28 min. with the sun’s position, or E. 35 deg. 48 min. S. as the course of the Republic at that time. If an error of one-third were allowed, and the shadow increased to equal the length of the grating, the angle of the ship’s side with the sun’s position would be 45 deg., and the Republic’s-heading would then be E. 26 deg. 20 min. S., a heading that could only be found while she-was on the swing out of the Swash channel, or else within a few seconds of the collision; and of those two, evidently the former must be-adopted. At what precise point the photograph was taken I do not-find it necessary to decide. There is an indefinite number of places,.
Immediate Causes of Collision. The contentions of the parties are dn direct contradiction as to the immediate causes of the collision. Most of the witnesses on both sides seem to agree that, shortly before the collision, apparently about one minute before, the stem of the Republic seemed to bo approaching the Aurania’s quarter more suddenly and more rapidly than their previous angle of convergence would account for. A ccordingly, each charges the other with a change of helm; the Aurania alleging that the Republic ported, and thereby swung her stem against the Aurania.; the Republic, that the Aurania ported, and thereby swung her quarter towards the Republic; and the Republic also charges that suction from the Aurania’s propeller, and from the great displacement of the Aurania, also contributed to the result. The officers of each deny positively any such porting shortly before the collision.
The evidence loaves no doubt that the Republic’s engines were stopped and reversed just prior to the collision. This order was probably given not more than half or three-quarters of a minute before they collided, because there was time only to get a few turns backward. A short time only before the order to stop and reverse, as the -master and pilot testify, an order was given to put the helm hard _ a-starboard. The wheolsraan testifies that he did starboard. The pilot says that under this order she canted about a. point to the northward. But this is not compatible with the rapid approach of the vessels, or with the place of collision. It is contrary, also, to the testimony of the master of the Republic; and the latter is more likely correct, for he says that, though the Republic usually obeys her helm readily, “the starboard helm [at that time] did not seem to have hardly any effect. That is why I reversed the engines principally.” Erom what he did between the two orders, the interval must have been certainly a third of a. minute, and probably moro; so that the interval from the order to starboard to the collision must have been one minute, and probably a little longer. He says that, when he gave the order to starboard, the Aurania’s mizzen-mast was “about abreast of our bridge, perhaps a little further ahead; I would not be sure,”— i. e., from ISO to 200 feet ahead of its relative place at the collision; and that the vessels were then “perhaps half to three-quarters of a ship’s length apart,”—i. <?., 200 to 300 feet; and that “their courses were not then altered.” This confirms the view as to the courses of the two vessels above adopted. When the master of the Aurania
It is clear, also, that the Aurania could not have ported, and have thereby caused an apparent rapid approach, merely through the swinging of her stern towards the Republic. The proof shows that this effect would swing her to the northward only 25 feet in all; and would continue only during 24 seconds from the time the order was given. After that the stern would move away on the line of the curve. Considering that the Aurania, after 14 seconds, begins to cant at the rate of 5 deg. in 9 seconds, it is plain that had any such order to port been given, even a minute only before the collision, the Aurania, instead of swinging up to the Republic, would have canted two and one-fourth points to the southward before the collision. The narrowness of the channel, however, did not permit so much change as that to the southward; but one-half of that change would necessarily have carried her south of the buoy, instead of north of it; and by that deflection to the south, moreover, she would have headed, at the time of collision, very nearly in line with the Republic, instead of being at an angle at the moment of collision, as the proof indicates, of about two or two and one-half points. Her testimony, that she did not port, is therefore confirmed, and must be received as correct.
The evidence of a great number of witnesses must be held to show that there was at least some deflection to the southward in the course of the Republic, just before the collision; for the great weight of proof is that the point of collision was nearly directly west of the buoy, and at least 550 feet distant from it, and not materially to the north of it. This, as above observed, was considerably to the southward and westward of the line of the Republic’s course that she had been previously
So far as I can perceive, there are but two remaining causes which could have produced this deflection, viz., either her own porting, or the unavoidable swinging of her stern to the northward through the effect of the southerly wind.
As respects porting there are but two alternatives: either that this was done deliberately, by the order of the officers, in order to go astern of the Aurania, as was their duty to do if there was not room to go to the northward, which order was too late, and failed through some miscalculation of the distance, or of the speed at which the Aurania was gaining on the Republic; or else that the wheelsman, though ordered to starboard, in fact ported by mistake, possibly from having been anticipating an order to port, and so misinterpreting the order actually given. The first of those alternatives involves direct perjury in the testimony of all the officers concerned in the navigation of the Republic. The second involves two separate concurrent mistakes on the part of the wheelsman and of the master; for, not only does the wheelsman say he did starboard, but the master says that, before ordering to stop and reverse, he went to the “tell-tale” in order to see, and did see that the helm was hard, a-starboard, and that it did not seem to have much effect, and that “after watching a few seconds longer, when it didn’t seem to draw clear, the pilot called out, ‘ Stop !’ and he ran to the telegraph, and rung ‘full speed astern.’ ” Of course, it is possible that much of this might have occurred in reference to an order to port, instead of to starboard. That the Republic, however, did cant somewhat to starboard, as if under a port helm, when some 250 feet distant from the Aurania, seems to mo beyond doubt, from the fact that the place of collision was clearly to the southward (notwithstanding the flood tide) of the course towards the northward of the buoy that she had all the time previously been keeping. Had her helm, moreover, been put hard a-port a minute before the collision, as it would have been had it been ordered to be ported at all for the purpose of going astern of the Aurania, considering that such steamers cant a point in going a length, or a little less, she would have turned, up to the time of collision, at least three points, making the angle of collision fully four points,— considerably more than is at all probable upon the evidence.
The position of the'Bepublic in reference to the Aurania was, however, such that it was quite possible that the wind may have canted the Bepublie’s stern to the northward, and have thereby produced all the deflection from her course that is necessary to explain the results-witnessed. Beardon, a pilot called by the Bepublic, says that he was, at the time, beating down the lower bay, and that the wind was a “four-knot breeze”.from the south. This wind, though moderate, could not hut affect the Bepublic unequally, and operate with considerable force, when the whole after half of the Bepublie’s hull was presented to it, while the forepart was in the lee of the Aurania,, which had a freeboard 2i feet out of the water, and was higher than the Bepublic. This unequal influence of the wind was operative for over two minutes; but the full effect of it would not he felt until the whole after half of the Bepublie’s hull had got astern of the Aurania, which was about one and one-half minutes, or a little over, before the-collision, i. e., very near the time when, according to the Bepublie’s. testimony, she was seen unexpectedly drawing towards the Aurania. That this cause would deflect the Bepublie’s course to some extent there can be no doubt. A slight change of less than half a point in the Bepublie’s heading to the southward during the two minutes preceding would have been sufficient to bring the Bepublic to her place
The nature of the damage to the Eepublie in knocking her stem to port, accompanied also by the gouging out of lines in the iron in a horizontal direction, shows only, as it seems to me, a combination of a swinging motion with a forward one. The forward force was, doubtless, that of the Aurania; the swinging motion might have been produced equally by the Bepublie’s port helm, or by her stern’s swinging through tiie effect of the wind, or by the swinging of the Aurania’s stern, if she had ported. I find nothing decisive in this feature.
The best result I can arrive at, therefore, is that, while this collision may possibly have been precipitated by an order to port, made under an erroneous supposition that tlie Bopublic could drop astern in that way, or under a misapprehension of an order to starboard, it might also have been caused, and upon the testimony, as I find, was more probably caused, by the effect of the wind operating unequally upon the Bepublic’s hull, while her forward part was in the Aurania’s lee so as to swing her stern unavoidably to the northward; that is to say, by one of the contingencies of navigation.
But, whichever of 'these causes precipitated the collision, it must be held to have been imprudent, rash, and blamable navigation that suffered two vessels of such size, going through the water at a speed, of about 15 and !(>}■ statute miles, respectively, upon courses converging about one point, to come within 250 or 300 feet of each oilier, without any material effort by either up to that time to keep away. If they were converging by one point only, they were “approaching” each other sideways at the rate of about 200 feet per minute; and as I find that tlie Aurania was gaining on the Bopublic not more than from 125 to 150 feet per minute, and had to gain from 150 to 200 feet in order to clear her, I do not regard it as altogether certain, notwithstanding the opinions expressed by the Aurania’s witnesses, that the vessels would not have collided, even if their previous courses had been perfectly preserved. Such proximity, under great speed for such large vessels, very plainly, in my judgment, involved '‘risk of collision,” within the meaning of the rules. “Bisk of collision” means, not merely certainty of collision if no efforts be made to avert it, but danger of collision; and there is danger or risk of collision whenever it is not clearly safe to go on. The John McIntyre, 9 Prob.
In my judgment, there was risk of collision, within the meaning of the rules, some time before these vessels had come within 300 feet of each other, and at least two minutes before the collision, by reason of their converging courses, their great speed, and their great bulk, which prevented rapid handling. Two minutes before collision the Republic’s stem was already at least 150 feet behind the Aurania’s stem, and the latter vessel was evidently going ahead and crossing the Republic’s bow. Even, therefore, if the Republic had had the right of way, it would have been her duty, being already somewhat astern, and the intent of the other to go ahead being clear, to slacken speed at once, or stop if necessary, under the seventeenth rule. Having the right of way does not dispense with the seventeenth rule, nor supersede the obligation to stop, when actual risk of collision is impending. This is settled by the English decisions last cited, and by many decisions of the courts of this country. The America, 92 U. S. 432, 438; The Sunnyside, 91 U. S. 218-224; The Columbia, 25 Fed. Rep. 844; The Frisia, 28 Fed. Rep. 249; The Hills, 23 Fed. Rep. 413; The Fanwood, 28 Fed. Rep. 373; The Nacoochee, 22 Fed. Rep. 859; S. C. 28 Fed. Rep. 462.
The same considerations, and the same authorities last cited, apply to the Aurania, although, as I have found, she had the right of way; because, at least two minutes before the collision, it was, I think, sufficiently manifest to the Aurania that the Republic was not performing her duty to keep out of the way by a safe and secure margin, either by steering sufficiently to the northward, or by slackening speed so as to drop astern; nor was she apparently taking any steps to keep out of the way, but was keeping on with unabated speed. This, from the Aurania’s point of view, viz., that the Aurania had the right of way, showed to the Aurania gross violation of duty by the Republic in not keeping off earlier, and that the Republic’s persistent keeping of her speed and course involved, at least, the risk of collision; since the close approach of the vessels left no margin for any of the unexpected contingencies of navigation. It is not to the purpose to say that if each had been kept upon exactly the same course, and if nothing unexpected had happened, no collision would have occurred, even if that fact were clear; or that the officers of the Aurania supposed so. Considering the great interests of life and property at stake, a reasonable provision for safety against unexpected contingencies, and even against slight mistakes or errors in
The duty to keep out of the way, as this court has recently held, embraces the duty to keep away by a prudent and safe margin, having reference to all the contingencies of navigation, (The Laura V. Rose, 28 Fed. Rep. 104; The Columbia, 9 Ben. 254;) and when the Republic was plainly and 'grossly neglecting her duty in this regard, and had approached within 250 or 500 feet, their courses converging so that the risk of collision was becoming more imminent, it became obligatory upon the Aurania, though she had the right of way, to do what she reasonably could to avoid, not perhaps the certainty of collision, but the impending risk of it. Although, in my judgment, the vessels were “approaching each other” within the meaning of the seventeenth article, i. e., sideways, the Aurania was not, in this case, required to slacken speed, because in the situation as it then existed, inasmuch as slackening would have tended to promote collision, a departure from that rule, under the provisions of article 24, is proved to have been necessary; and she is therefore-without fault in that respect. But she could and ought to have ported her helm, and gone to the southward of the buoy. There was nothing in the way to prevent this. There was sufficient water for a considerable space to the southward. Her officers say that they wore intending to go to the south of the buoy; but intended to wait until within a hundred feet of it before porting, and that their intention was thwarted by the force of the blow on the Aurania’s stern, which swung her round, and forced her to go to the north of the buoy. I do not think the circumstances bear out this explanation. In my judgment, the intended porting, in order to go south of the buoy, was too long delayed. An elaborate mathematical computation by Prof. Compton, submitted as a part of the Republic’s argument, would indicate the possibility, at least, that the Aurania may not have been deflected by the blow' more than one-quarter of a point. Whether this be a correct estimate or not, other circumstances indicate that the Aurania was already so far to the northward, before the collision, that she could not, by porting subsequently, have gone south of the buoy, even if the collision had not occurred; for if, at the time of collision, she was within 50 feet of a line running east and west through the buoy, her stem being from 100 to 200 feet only from the buoy, upon porting to go south of it, the force of the tide and the swing of her stern under a port helm would have carried her stern across the buoy. On the other hand, had she, at that time, been more than 50 feet south of such a line, and heading a little south of the buoy, the blow upon the Republic could not have swung her stern so much as to cause her to go north
The evidence, in my judgment, all points, therefore, to the conclusion that the Aurania had gradually drifted to the northward of the regular course, through the effect of the flood-tide, not having been kept headed sufficiently to the southward of the buoy to counteract that effect; so that, at the time of the collision, she was nearly due west of the buoy. This would make easier her necessary turn beyond the buoy, and was, I think, in part at least, designed by the pilot. Nor, aside from the Republic’s close approach, was there anything wrong in this. Having the'right of way, the Aurania had the right to the whole Of. Gedney channel, if, as the witnesses of the Republic say, that channel was not wide enough for two such vessels to go safely abreast in it; and she had the legal right to go on either side of the buoy that was customary, or most for her convenience; and it would have been the corresponding duty of the Republic, as the vessel bound to keep out of the way, to yield her all of these rights, without obstruction, if there were no other circumstances affecting this right. But that does not affect the Aurania’s final obligation, when the Republic was plainly neglecting her duty to keep out of the way, and was threatening collisiqn, to do what she could to avoid it by porting sufficiently to clear the manifest danger. Rule 22, indeed, requires that the vessel having the right of way shall keep her course; but that is in order to avoid collisions, not to run into them. Rule 24 declares : “ Nothing in these rules shall exonerate any ship from the consequences ' * * * of the neglect of any precaution which shall be required by the ordinary practice of seamen, or by the special circumstances of the case.” Whenever danger of collision has become manifest, and the vessel previously bound to avoid it is plainly neglecting her duty to do so, the circumstances are special, and the other vessel must do what she can to prevent disaster. If this rule were not acted on and rigidly enforced, disastrous collisions would arise daily, and the lives and property of innocent persons be sacrificed to a tenacious adherence to the mere right of way; and that, not only when the consequences of the negligence of the one vessel were easily avoidable by the other, but as often, also,
Rule 21 declares: “In narrow channels, every steam-ship shall, when it is safe and practicable, keep to the side of the fairway or mid channel, which lies to the starboard side of such ship.” The Aurania did not keep to the starboard side of the channel by any certain or reasonable margin, as the place of collision shows. If she was not to the northward of the middle lino of the channel at the time of the collision, she was very nearly, if not fully, up to that line. The one whistle which she had previously given also Indicated, under the nineteenth rule, that she was directing her course to starboard. Yvlthout expressing any opinion as to the applicability, in this situation and on pilotage ground, of the inspector’s rules, which are clearly incompatible with the new regulations, I think both vessels meant and understood the whistles to bo indicative of their intentions; and this confirmed also her obligation, under rule 21, to keep to the star-hoard side of mid channel, or to the southward of the buoy.
“The special circumstances of the case” also, under rule 24, which is a substitute for the former rule as to departures, in view of the Republic’s neglect of duty, and the close approach of the two vessels, required the Aurania to go to starboard; because that course would have been away from danger and from risk of collision; and because, in the situation of the two vessels, porting could not possibly have tended to tlvwart any movement of the Republic to avoid her. The Aurania, therefore, could have done something to avoid this collision, by porting enough to keep southward of the mid channel by a reasonable distance, and to go south of the buoy; and this, in my judgment, would have avoided the disaster. Notwithstanding the fact that it was the primary duty of the Republic to keep out of the way, I am constrained to hold, though not without much hesitation, that the Aurania is also to blame. The reason of the rules and the policy of the law, which, for the safety of life and property, demand that no reasonable effort to avoid collision shall be neglected by either vessel, compel me to hold both in fault, and that the damages be divided.
A convenient formula for those computations is the following: Divide the distance Jn feet by the number of minutes, multiplied by 101. The ouotient is the speed per hour in knots, reckoning 6,080 feet to the knot.
In collision cases a knowledge of the rate at which steamers turn under a hard a-port or hard a-starboard helm, and the effect of a reversal of the engines on steering, is so useful that the following facts, derived from experiments with the Aurania, made by Capt. Watson, are here abstracted from the record.
In a calm sea and no wind, the Aurania, 480 feet long by (5fi feet beam, going at 145-knots, lior helm was ordered hard a-port. The helm is moved by steam, and goes hard over in about .12 seconds, and reduces the speed from one-half to three-fourths of a
In some experiments with the Frisia, (24 Fed. Rep. 495,) 350 feet long, 40 feet beam, and 2,313 tons net, and full speed 12 knots, it was stated that, going full speed ahead, if the engines were reversed full speed, the bows canted one and one-half points to star-hoard, the propeller being right handed, whether the helm was put to port or to star-hoard (?) in the interval of two minutes until her headway was stopped; but with the rudder amid-ships, she fell off two points to starboard in the same interval. (The details of the experiment were not given in the testimony.) Under orders to stop and reverse, the engines were stopped in seven to eight seconds after the telegraphic order was given, and reversed six seconds afterwards. It took 23 seconds to turn tlie rudder from amid-ships to hard a-port.
