Riedemann v. The Galileo

| U.S. Circuit Court for the District of Southern New York | Jul 1, 1886

Wallace, J.

It is entirely clear that the primary fault contributing to the collision between the steamer and the bark in tow of the Baxter was the failure of the steamer to keep out of the way of the tug and her tow, by passing to their port side, conformably to the signals which had been interchanged between .the steamer and the tug. It is doubtful whether the nineteenth rule of navigation (section 4233) applies to a case like this, where a vessel under steam, lying nearly crosswise near the middle of a navigable channel, is not on a defined course crossing that of another vessel under steam, and having the latter on her starboard side, but is attempting to turn about by backing and then going forward for short distances. Whether this rule applies or not is not important, because the steamer had signified her intention to pass to the port side of the tug and tow, pursuant to rule No. 1 of the board of supervising inspectors, by one blast of her whistle, and the tug had consented promptly by the answering signal. The steamer failed to keep her promise with proper alertness by neglecting to put her engines at speed ahead as promptly as she should. If she had done this there would not have been a collision. But the tug, when a couple of hundred yards away, observed that the steamer was moving astern, thus bringing herself across the course of the tug and tow, and gave the danger signals required by rules 3 and 6 of the board of supervising inspectors. During the 200 yards of distance which had intervened after the first signals were given, it was the duty of the tug to carefully observe the movements of the steamer. She saw, or was bound to see, that the steamer, instead of so controlling her movements as to pass to the port side of the tug, was moving in an opposite direction. Her captain states he discovered the steamer was moving astern directly after he had answered her signal. The danger signal given by him manifested his opinion at the time that the steamer’s movements were such as to involve risk of collision with the tow unless tliqy were promptly counteracted by a forward movement. He saw, as these signals demonstrate, that, notwithstanding the promise of the steamer so to control herself as to permit the tug and tow to pass to the westward, she was so tardy in her maneuver that the situation was growing critical. Was he justified in relying upon her promise in the face of her conduct to the contrary? The language of the twenty-first rule is imperative and plain. It applies from the moment when the approach of vessels is such as to involve risk of collision between them. In The Beryl, 9 Prob. Div. 137, the court, in considering the English statute which employs language identical with ours, say that “the right moment of time to bo considered is that which exists at the moment before the risk is constituted.” The rule does not permit the calculation of chances and the weighing of probabilities, because risk intervenes the moment this becomes necessary; and it certainly cannot be material whether the risk depends upon the contumacy of the other vessel, or her supineness in fulfilling her obligations, or the probability that she will perform her. duty, or upon circumstances quite independent of such chances.

Assuming that, when the captain of the tug gave the first series of danger signals, he believed there was yet time for the steamer to redeem her promise and pass to the eastward before the tow could reach the line of her course, and that she would exert herself to her best ability in that behalf, how is he excused for keeping on at full speed for 200 yards further when he saw that the steamer still continued to make astern, and that the risk of collision with the tow was becoming rapidly more imminent ? The rules of navigation are obligatory upon vessels approaching each other, not only from the time the necessity for precaution begins, but continue obligatory as the vessels advance so long as the means and opportunity to avoid danger remain. There seems little room to doubt that, if the tug had slowed or stopped and cast off the hawser of the tow at any moment of time before the tug had passed the stern of the steamer, the tow could have avoided the steamer by hard starboarding her helm. When the tow’s helm was hard starboarded the steamer was abreast of the bow of the tow, and about one-third her length past, and the tug had’ passed the stern of the steamer nearly 100 feet, keeping to the starboard as far as she could, to avoid the Cyclops and her tow. The bark, under the helm hard a starboard, came around before the wind at a distance of less than 250 feet from the steamer, and fell off about three points to the eastward, striking the steamer a glancing blow at a point about 100 feet from the steamer’s bow. A fair test of the probable success of seasonable action is the partial success which is shown to have followed dilatory action; and, applying this test, it would seem that, if what was finally done by the tug and tow had been done when the tug was not nearer than 100 yards to the steamer, the collision would have been avoided. The burden of proof rests upon the tug to show that her failure to obey the statutory regulation did not contribute to the collision. The proofs do.not exonerate her.

It appears from the opinion of the learned district judge that he deemed the tug excused from fault partly upon the assumption that after she had given the first danger signal the steamer repeated the signal of one blast, and thus in effect informed the tug that she could keep out of the way, and authorized the tug to act upon that belief. Although the pilot of the steamer testifies that he replied to the first danger signal of the tug by a single blast of his steam-whistle, this statement is in plain conflict with the allegations in the pleadings of both the tug and the tow, as well as with those of the steamer, and is opposed to the concurring testimony of all the other witnesses. Even if the signal was given, it was not heard, and therefore could not have been acted on by those in charge of the tug or tow. Although the conduct of the steamer in neglecting to put her engines at speed ahead after she had given signals that she would pas3 to port, and had received an assenting signal from the tug, was a flagrant violation of duty, and although the conduct of the tug in relying too long and implicitly upon the intention and ability of the steamer to perform her promise was a comparatively venial fault, it must be held that the tug must bear the consequences of omitting to do what the statute requires, by contributing to the payment of the loss.

It is urged that the tow was also in fault for not sooner casting off her hawser and starboarding her helm. The tow was not absolved from the duty to take all reasonable and prudent measures demanded by the circumstances to avoid a collision merely because she was relying for her motive power upon the tug, but she was under the control of the tug, and did not have that control over her own movements which steam vessels possess, or which she would have had if relying only upon her own sails, and it was her duty to keep her course and conform her. movements to those of the tug until it was obvious that she could no longer do so with safety to the steamer. It was not obligatory upon her to cast off her hawser and starboard her helm as soon as the approach of the vessels involved risk' of collision, but only when it was obviously necessary to do so in order to avoid collision; that is, when she ought to have been aware that the steamer' could not keep out of the way. Until then she had a right to suppose that she would not be led by the tug into dangerous proximity to the steamer. The John Fraser, 21 How. 193. If she had assumed to act upon her own responsibility at an earlier period of-the‘approach,, she would have been responsible to -the steamer for any miscarriage: Although she might have cast off her hawser sooner, that was an act only to be adopted in extremis, and is not a fault of which the steamer can justly complain.

The conclusion is therefore reached that, in the action brought by the owners of the tow against the steamer and the tug, the libelants are entitled to a decree against both vessels, with costs of the district court and of this court; and, in the action brought by the owners of the steamer against the tug and the tow, the libel should be dismissed as to the tow, with costs of the district court and of this court, and the libelants should have a decree apportioning the damages against the tug, with the costs of this court.

The exception by the owners of the steamer to the allowance included in the master’s report of damages for demurrage is without merit, in the.absence of any e'vidence offered by them to show that the rate provided in the charter-party of the vessel, which also appears affirmatively to be the customary rate at New Tort, is unreasonable because of any special circumstances.