136 F. 825 | 5th Cir. | 1905
after stating the facts, delivered the opinion of the court.
Witnesses, who, as far as we can judge from scanning their depositions, were of equal intelligence, equally disinterested, having equal opportunity and sense of hearing, and equally attentive, testified that fog signals were given, and that they were not given. There was other testimony, which, owing to the interest and evident bias of the witnesses, must be taken with much allowance. The most that car. be said of the testimony upon this point is that it leaves the truth of the issue in doubt. The burden of proof being upon the libeUnt, the fault of the Eeo in respect of fog signals is not established.
The assignment as to the want of a proper lookout has not been much insisted on. If it had been, it could not avail appellant. There was a lookout on watch, at his proper station. Moreover, he could not see the skiff before it was run down, owing to the density of the fog. The master, from his better point of observation in the pilot house, discovered the skiff before the lookout possibly could.
The conflict between the witnesses as to the Eeo’s speed is very pronounced. It is hard to reconcile their divergent testimony as a mere difference in judgment about the speed at which an object moved over the water. However, with the aid of the map and the photographer’s art, and facts which are undisputed, we have been able to reach a satisfactory conclusion as to the speed at the time of the collision, without engaging in the unpleasant task of sifting mistake of fact from conscious untruth in this mass of testimony.
“Moderate speed” is purely a relative term, which means no more than that the vessel must run at a prudent rate of speed. Time, place, and circumstance, rather than the swiftness of the vessel over her course, determine whether the actual speed was immoderate, in that it was imprudent. In The Pennsylvania, 19 Wall. 135, 22 L. Ed. 148, the Supreme Court adopts the words of the Privy Council in the Europa:
“This may be safely laid down as a rule on all occasions — fog or clear, light or dark — that no steamer has a right to navigate at such a rate of speed*831 that it is impossible for her to prevent damage, taking all precautions at the moment she sees the danger to be possible; and, if she cannot do that without going at less than five knots an hour, then she is bound to go at less than five knots an hour.”
The same rule, expressed in different words, was again approved by the Supreme Court in The Colorado, 91 U. S. 702, 23 E. Ed. 379, wherein it is said no rule yet suggested “for determining whether the speed of a steamer in any given case was or was not greater than was consistent with the duty the steamer owed to other vessels navigating the same waters is better suited to enable the engineer to reach a correct conclusion than the one adopted by the Privy Council. The Batavier, 40 Eng. E. & Eq. 25” — which is, “At whatever rate she [the steamer] was going, if going at such a rate as made it dangerous to any craft she ought to have seen and might have seen, she had no right to go at that rate.” In Newton v. Stebbins, 10 How. 606, 13 L. Ed. 551, it is said:
“It may be a matter of convenience that steam vessels should proceed with great rapidity, but the law will not justify them in proceeding with such rapidity if the lives and property of other persons are thereby endangered.”
In The Martello, 153 U. S. 70, 14 Sup. Ct. 725, 38 L. Ed. 637, it is said:
“While it is possible that a speed of six miles an hour, even in a dense fog, may not be excessive upon the ocean and off the frequented paths of commerce, a different rule applies to a steamer just emerging from the largest harbor on the Atlantic Coast, where she is liable to meet vessels approaching the harbor from at least a dozen points of the compass. Under such circumstances, and in such a fog that vessels cannot be seen more than a quarter of a mile away, it is not unreasonable to require that she reduce her speed to the lowest point consistent with good steerageway, which the court finds in this case to be three miles an hour.”
In The Umbria, 166 U. S. 417, 17 Sup. Ct. 615, 41 L. Ed. 1053, it is said:
“The general consensus of opinion in this country is to the effect the steamer is bound to use only such precautions as will enable her to stop in time to avoid collision after the approaching vessel comes in sight, provided such vessel herself is going at the moderate rate of speed required by law. In a dense fog it might require both vessels to come to a standstill until the course of each was definitely ascertained. In a light fog it might authorize them to keep their engines in sufficient motion to preserve their steerageway.”
True, these were cases of collision by steam or sailing vessels, and the language quoted was with reference to their duties to each other, and not with reference to the duty of a steamer to small craft like a skiff or yawl. It is also true, as argued, that neither a steamer nor a sailing vessel is ordinarily required to change its speed or course to avoid small craft, like a yawl or skiff, when it sees them, and that the steamer has a right to presume, until the contrary appears, that they will keep out of harm’s way. The right of a steamer, however, to keep its course or speed, even against small craft, like a skiff or yawl, is relative and contingent, not absolute. The steamer has no right to maintain a speed or course which is dangerous to the safety of a smaller craft which can be seen ahead. There are, moreover, frequent occasions when
“Sound is conveyed in a very capricious way through the atmosphere. Apart from wind, large areas of silence have been fourid in different directions and at different distances from the origin of sound, even in clear weather. Therefore too much confidence should not be felt in hearing a fog-signal.”
The time elapsing between the collision and the departure of the Leo from the ferry landing, and the distance traversed between the two points, conclusively show that her average rate of speed over her course must have exceeded six miles an hour. Her average speed, however, would not necessarily show her speed at any given point on the voyage. She was feeling her way in the fog, now and then taking her bearings by the echo of the whistle from the banks and by sighting the trees. In navigating in a fog under such conditions, the vessel, after assuring her position at any given point, most usually takes on greater speed, and continues it until she reaches the next point ahead, where she must again reduce her speed and feel her way. Evidently the skiff was struck at a stage in the voyage where the Leo was not feeling her way. She was then proceeding confidently ahead, on a course which she believed conformed to the lay of the shore, and would safely take her around Nine-Mile Point, with a speed which, but for the reversal of the engines when the skiff was sighted, would either have landed the tug with tremendous force against the lower end of the
Bearing in mind that the skiff was struck upon its port bow, and that on that side only were the sides and knees broken, while neither its starboard side nor bottom nor stern were injured at all, and that the nature of the fractures shows that the blow which struck the skiff ranged in the direction of its stern, and that the skiff started from the upper end of the raft, and was found deposited on the lower end of the raft, the theory that the tug may have struck the skiff just after the skiff turned into the shore, after passing and within a few feet of the lower corner of the raft, is not at all reasonable, under the evidence. It was only 100 yards from the middle of the raft, the point from which Bolds pulled out and commenced to row dowmstream, to the lower end of the raft.
Aside from the breaking of the binders on the raft, there is another significant fact bearing on the rate of speed. The ends of the logs, including the height of the heavy binders on top of them, rose a foot or more, perpendicularly, out of the water. The skiff itself sat at least five or six inches in the water. The skiff, being carried in on the- bow of the tug, if actually impinged between such an obstacle and the tug — this part of the raft being practically immovable, owing to the length of the raft, half of which lay on the shore — would have been shattered to fragments, or at least its bottom and starboard side would have been fractured. The laws of matter do not permit us to doubt that such would have been the result if the skiff had been projected from the bow of the tug directly against such a perpendicular obstacle, as undoubtedly
If the tug had passed at considerable speed, parallel to, and along the front of the raft, it might be, in such a situation, that the commotion in the water and undulation of the logs along the front of the raft would submerge that part of the raft on the water’s edge, so that the skiff floating along there on the bow of the tug, while the logs were under the water, would, without itself being lifted above the normal level of the raft in the water, be taken up on that part of the raft as the submerged logs returned to their normal level above the water. Such measure of undulation would not be imparted to the logs midway of the side of .the raft by any moderate speed of the tug. One end of this side of this raft rested firmly on the shore; the logs lying parallel to the shore, extending outward 60 feet into the stream at its other end. The logs were fastened and held together by long wooden binders, about eight inches in diameter, running at right angles across the logs, and securely pinned to them. As the shore end of the raft rested firmly upon the bank, and could not sink or give way at that end so as to conform to the elevation or depression of the center, which at the point where the tug struck the raft was at least 25 feet from the-river end, the end furthest from the shore would necessarily be elevated or depressed, as the case might be, in a considerably greater degree than the center, to conform to its elevation or depression. A wave which would depress the raft a foot or more in the water, by washing over the raft from the point of the tug’s approach, must have power enough, therefore, to sink the end of the raft furthest from the shore a still greater depth in the water. A wave of sufficient power to do this, as the tug struck the raft, perpendicularly, 25 feet from the river end, must have had a front of at least 50 feet, for it would spread nearly equally on each side of the bow of the tug; and the height of the wave, when we remember that the binders and logs sat normally a foot or more out of the water, and the skiff drew at least 5 or 6 inches of water, must have been at least 2 feet, to cause the raft to be so depressed in the center that the skiff, instead of being uplifted there, would merely have floated onto the raft when the undulation of the logs caused by the wave raised the raft to its normal level. So, also, if it be
The testimony of the master is positive, that on discovering the skiff ahead he did not give orders to change the course of the Leo, but only to back her at full speed astern. On cross-examination the master was asked about his distance from the shore, and how, if his estimate was correct, he could have struck the raft within about 37 feet of the shore after reversing on sighting the skiff. He answered, “In backing up, the tug may have swung in that way, sir, which could have happened.” He was further asked, “How could the backing of the tug swing it in when it was going forward?” His answer was, “In turning her back, why, she would' swing one way or the other — sometimes back the tug to port, or sometimes back the tug to starboard.” If this surmise be correct, it is highly probable, in the course and with the speed of the tug at the time it sighted the skiff, that, had not the machinery of the tug been reversed on that account, it would have skirted the front of the raft, and ran down the persons in the boathouse, which was moored in the river, on the lower part of the raft, about 45 feet out in the stream, if the tug did not earlier strike some nearer point on the front of the raft. Every phase of the transaction at this time serves to illustrate the danger to which the Leo exposed' the smaller craft by her speed along the bend. The whole record impresses us with the conviction that the master of the tug, being able, from his elevated position in the pilot house, to discover any large obstacle, which would loom 10 feet above the water, in time to-prevent collision with it by stopping or veering his course, and, being thus assured of the safety of the tug, was very heedless of the safety of smaller craft, which could not be seen far ahead, and would not jeopardize his safety in case of collision with them, and was proceeding at a speed which threatened their destruction if they did not hear or failed to properly locate his fog signals,
It does not seem to us that the fact that Bolds was rescued, and that Miss Quinette was held up some time in the water before Stewart abandoned the effort to save her, militates against the finding of undue speed at the time of the collision with the skiff. If the version of the captain and most of the crew and that of Bolds be correct, the latter was picked up after the vessel backed astern out in the river, and after it had struck the raft. What was done, or the time taken to do it, after the collision with the skiff, when the tug had to first stop its forward momentum before its stern could be backed down the river, which was not done until the bow of the tug had first struck the raft a heavy blow, sheds little light on the speed of the tug at the time when, moving forward, it collided with the skiff. Consideration of these questions helps us, rather, only in approximating the distance the skiff was from the raft when the tug struck the skiff. As the stern of the tug, whose bow apparently struck the raft at right angles, was necessarily already 83 feet down the stream when the tug commenced to back, and as Bolds “was swimming and hollering out there, so they backed out there, and pulled me up in the tug,” some minutes must have elapsed after the collision with the raft before Bolds was tdken aboard over the stern of the tug. As the tug must have consumed some time in backing the distance necessary to reach the place where the skiff was struck, the facts that Bolds was saved, and that Stewart had an opportunity to go to Miss Quinette and hold her up some time, go to show, after making due allowance for the ordinary current in taking persons downstream, that the distance from the raft of logs to the point where the skiff was run down and Miss Quinette and Bolds were thrown in the water was, in all probability, two or three times greater than the length of the Leo. The time the tug seems to have been actually backing, as far as we can gather the time from the testimony, goes to show that its bow must have gone at least that distance from the raft, downstream, to reach the probable point of collision with the skiff. In the view we take of the case, it is unnecessary to decide whether there were
The right of action here is given by article 2315 of the Civil Code of Louisiana, as amended in 1884, which declares that:
“Every act whatever of man which causes damage, obliges him by whose fault it happens to repair it; the right of this action shall survive in case of death in favor of the minor children or widow of the deceased or either of them, and in default of these in favor of the surviving father and mother, or either of them, for a space of one year from the death. The survivors above mentioned may also recover the damages sustained by them by the death of the parent and child, or husband and wife, as the case may be.”
Without this statute the libelant could not maintain her libel. The statute must be applied in admiralty just as if the suit had been brought in the state courts, and any defenses which are open to the defendant under the jurisprudence of the state, if successfully maintained, will bar recovery under the libel. The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358; The Alaska, 130 U. S. 201, 9 Sup. Ct. 461, 32 L. Ed. 923; The Oregon (D. C.) 45 Fed. 62. In the Corsair, 145 U. S. 335, 12 Sup. Ct. 949, 36 L. Ed. 727, it is said that “this local law did not give a lien or privilege upon the vessel, and that nothing more was contemplated by it than an ordinary action according to the course of law as administered in Louisiana.” Under the law of Louisiana, the deceased’s negligence, directly and immediately contributing to the injury, is a good defense.
The libelees insist on the defense of contributory negligence; contending that it was gross negligence in Miss Quinette to venture out in the river, during the prevalence .of such a fog, in a skiff, which must pass the track of ascending and descending steamers, without having and sounding a fog signal, and that the noise in rowing with patent rowlocks is in no wise an equivalent signal to that prescribed by the laws of navigation and pilot rules. The failure to sound the fog horn, under the facts disclosed by the record, would be a good defense to this libel if the deceased could be charged with contributory negligence in that respect. Rule 15 of the “pilot rules for the rivers whose waters flow into the Gulf of Mexico and its tributaries, adopted by the board of supervising inspectors of steam vessels March 1, 1897.” The Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751. The noise made by the patent rowlocks is quite different from the sound made by fog horns, and cannot well be heard over the rumbling of machinery of a steamer, or distinguished from sounds of shore. From its nature, it is more likely to be swallowed up or confused in other sounds than the blast of a fog horn. Besides, the force of the sound waves the rowlocks put in motion is not as great as the disturbance in the atmosphere produced by the blowing of a fog horn, and certainly cannot be heard at as great a distance. It cannot be, therefore, accepted as an equivalent for the fog signal prescribed, which is really only carried forward in rule 15 from the statute. Whatever may be the custom of private individuals to venture in skiffs on the river, especially at a place like Nine-Mile Point, without sounding fog signals, in time of dense fog, it cannot operate to
Miss Quinette is not chargeable with any negligence which may have been committed by the owners of the skiff in failing to provide the fog horn or other equivalent signal, or because the oarsman did not use one in the fog, or was negligent, or made errors in navigation. The skiff belonged to her brother. The oarsman was his servant. Her brother directed the oarsman to row Miss Quinette over the river. Neither she nor libelant, so far as the evidence shows, had any interest in the skiff, or control over it or over the oarsman, or attempted to exercise any. Deceased was evidently alert, and did not hear the fog signal, and first perceived the tug coming through the fog, and instantly called the oarsman’s attention to it. The law enjoins the duty of giving fog signals only upon those who control or navigate the skiff. Its commands are not addressed to guests, licensees, or passengers on the skiff, who-neither control the skiff, nor take part in its navigation. The learning as to imputed negligence in cases of this kind is reviewed and exhausted by Mr. Justice Field in delivering the unanimous opinion of the Supreme Court of the United States in Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652. In that case it was held that a person who hires a hack, and gives the driver directions as to the place'where he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence, or prevented from recovering against the railroad company for injuries suffered from collision of its train with the hack, caused by the negligence of the managers both of the train and of the hack. The same doctrine is held in Louisiana. Perez v. R. Co., 47 La. Ann. 1391, 17 South. 869. The reason of the rule applies equally as forcibly to the case of a mere licensee in a private conveyance. Nesbet v. Garner, 75 Iowa, 314, 39 N, W. 516, 1 L. R. A. 152, 9 Am. St. Rep. 486; Masterson v. R. Co., 84 N. Y. 247, 38 Am. Rep. 510; Pyle v. Clark, 79 Fed. 744, 25 C. C. A. 190; B. & O. R. Co. v. Maryland, 79 Md. 355, 29 Atl. 518, 47 Am. St. Rep. 415.
Miss Quinette not being identified with the skiff or its management in anyway, can it be justly charged that her conduct in attempting to cross the river, under the circumstances, without seeing that there was a fog horn, was an act of such known danger and recklessness on her part as will legally condemn her as for personal contributory negligence? It is true, she was of age, and that the oarsman was young, and had but one eye. She had frequently crossed the river, presumably in this same skiff, and certainly with this oarsman, and, having lived at the Point nearly all her life, had doubtless been rowed over the river during the prevalence of a fog. The evidence shows that Bolds was a skilled oarsman and a.man of character and prudence. He had long been a trusted servant in the family. The universal custom seems to have been for skiffs there not to carry or sound fog horns. Some of the witnesses testified they never heard of a skiff carrying a fog
The negligence sought to be visited upon Miss Quinette, is, in its last analysis, either that she did not see that the skiff had fog signals, or that, after ascertaining that it did not have fog signals, she nevertheless consented to be rowed across the river in a fog. She was under no duty to furnish the skiff with fog signals, and, clearly, her simple act in consenting to be rowed across the river, in the fog, in a skiff which she knew did not carry the fog signals, was not the proximate cause of her death, in view of the circumstances attending it. New and independent causes intervened between her going upon the skiff-and the collision of the tug with it. Her act in going upon the skiff did not cause the immoderate speed of the tug, or prevent the oarsman from hearing or locating the fog signals, and nothing she did tended in the slightest, degree to cause either the tug or the oarsman to lose their course in the fog. It was this succession of faults and errors, none of which her original act put in motion, which, combined with her act in consenting to be rowed across the river, brought about the collision. The speed of the tug, the failure to hear or locate its fog signals, and the errors of navigation were purely intermediate causes, not springing from her act of going on the voyage, and were self-operating, and were the last negligent acts contributing to the collision, and without which it would not have happened. Besides, Miss Quinette, who did not know when she started out that the Deo was coming in her direction, had a right to presume that a tug would not violate the rules by moving at an immoderate speed in the fog, and she was not charged with anticipating, so far as anything in the record shows to the contrary, that the oarsman would not hear the fog signals or the noise of an approaching tug, or would row directly across its bow. The ordinary and probable result of her act in taking passage in the skiff, which was well built and substantial, and in charge of a competent oarsman, whom she did not direct or control, was not that the skiff would be run down by the steamer. In view of the new, independent, and self-operating causes, which her act did not produce, her going upon the skiff, and consenting to be rowed across the river in the fog in a skiff which she knew did not carry fog signals, cannot, in any sense, be said to be the juridical cause of the catastrophe. Milwaukee R. Co. v. Kellogg, 94 U. S. 469-475, 24 L. Ed. 256; Insurance Co. v. Tweed, 7 Wall. 52, 19 L. Ed. 65.
“It is difficult to adopt a standard of damages for loss of life. The law gives the surviving parent the damages the deceased could have recovered if he had survived the injury, and damages for the support the parent might have derived from the deceased. Her courts have allowed one thousand dollars up to five thousand dollars. Rarely more.”
In that case the deceased was addicted to drink, and there did not seem much prospect of his contributing to the support of the parent who survived. The jury rendered a verdict for $20,000, and the court reduced it to $1,000.
In Ortolano v. R. Co., 109 La. Ann. 905, 33 South. 914, the parent recovered $10,000 damages for the negligent killing of the plaintiff’s young son. The Supreme Court reduced the parent's recovery to $4,000. Administering a Louisiana statute as to a wrong occurring within its borders, involving its own citizens, we think we should be governed in the measure of damages by analogy to the decisions of its highest court under similar circumstances.
The decree dismissing the libel is reversed, and the case remanded to the District Court, with directions to decree in favor of the libelant, and to award her $4,000 as damages, and the costs of suit. The costs of the appeal will be taxed against the appellees.