22 F. 548 | S.D.N.Y. | 1884
At a little before 10 v. at. on Saturday, the twenty-eighth of May, 1882, the steam-ship Alaska, bound for New York, when off Nantucket, about 20 miles south of the South Shoal lightship, in passing ahead of the brig Castalia carried away the latter’s jib-boom, bowsprit, and head-gear. This action was brought to recover for these damages. The night was clear, dark, and good for seeing lights. The wind was light, — -about W. S. W., — and .the sea somewhat rough. The Alaska was 525 feet long by 50 feet beam, and 5,500 tons register. She had been previously sailing upon a course W. by S., (true,) and was making from 17-|- to 18 knots, or upwards of 20 statute miles, per hour. The Castalia was a full-rigged bark, 140 feet long, loaded with ice, sailing close-hauled by the wind on her starboard tack, and at the rate of about three or four knots, upon a course, according to her testimony, of S. W. by compass.
The testimony on the part of the brig is to the effect that the steamer’s white mast-head light was seen some 15 or 20 minutes before the collision; afterwards her red light, a little forward of abeam on the port side; that at this time no danger of collision was apprehended; but that as she approached nearer and hauled a little further forward she seemed to be bearing for the brig, and that a flash-light was then procured and exhibited at the brig’s waist some six or eight minutes before the collision, and kept constantly burning. On the part of the steamer, the testimony of the three officers who were on the bridge, and of one of the men on the lookout, is to tlic effect that no light from the brig was seen until very shortly before the collision, when her red light was seen from one to two points off’ the steamer’s starboard bow; that the steamer’s helm was immediately put hard á-starboard in order to go ahead of the brig; that under this starboard helm the steamer swung only 1]- points to port, so as to be heading S. W. by W. W. at the moment of collision, when her starboard quarter, about 60 feet from her stern, came in contact with the jib-boom of the brig, as above stated. The captain, wlio was on the bridge in command, was towards the port side when he first saw the brig’s red light, and, as he testifies, he instantly gave the order to starboard, and at the same time received the report of the red light from the lookout. He testifies that he at once went to the starboard
It was the duty of the steamer to keep out of the way of the brig, and the steamer is responsible for not having done so, provided the brig exhibited the proper lights. The duty of the brig to exhibit a torch-light (section 4234) is not denied; and the principal controversy in the case has been whether the torch-light was exhibited in time.’ The discrepancy in the testimony on this point is so great that there is evidently much distortion of the truth on one side or the other, or on both sides. There are some circumstances which tend to support the narrative of each; and these circumstances, with the testimony so evenly balanced, have rendered it impossible for me to reach any confident judgment on this main question. I find it unnecessary, however, to decide it, since there are other features of the case, resting upon testimony about which there can be little or no doubt, sufficient to show that both -vessels were at fault.
1. The courses and speed of the two vessels are very definitely fixed. There was no liability to any material error on the part of either vessel as to her own course, and little temptation to misstate it. The.steamer was going W. by S., true; the brig, sailing close-hauled by the wind, and varying not over half a point, was making from S. to S. W. by compass; the variation there is 11 deg. W., so that the brig’s true course varied from S. by E. to S. -J E. The steamer was making from 17J to 18 knots per hour; the brig, according to the mate’s testimony, about three knots; the master testifies that she was making not over three or four. I assume the rate of three and one-half knots for the brig, but whether three or four knots is immaterial. A drawing of the courses of each vessel carried backward from the point of collision, will show that during a period of from five to ten minutes preceding the collision the steamer must have borne very nearly due E. from the brig; and, assuming the latter’s course to have been as her witnesses testify, and, no doubt, correctly, the brig must have been heading, at the least, half a point E. of S., true, so as to have the steamer’s lights from the first, as her witnesses consistently state, a little forward of abeam. The rate of progress of each vessel upon her own course was such -as to preserve very nearly the same relative bearings; the steamer hauling very slowly ahead, and having the brig all the time a little on her starboard bow.
Upon these bearings, from the time when the steamer came within two miles of the brig, it is evident that the brig’s red light, properly arranged and burning, should have been visible to the steamer. The range of the light, if set according to the regulations, extended nearly two points to the southward of the steamer’s course, and should have been clearly seen at least six minutes before the collision. The most
2. The high speed of 20 statute miles per hour that the Alaska was making greatly increased the ordinary dangers of navigation, and in fact tended to render all navigation by other vessels near to her path hazardous. Considering the increased power of the electric lights that are used in conjunction with this great speed, and the greater distance at which vessels like the Alaska with such lights can be distinguished, I do not feel warranted in holding, as urged by counsel, that such speed is unjustifiable,-or is in itself carelessness in ordinary weather on the high seas. Such great speed, however, clearly imposes the duty of a proportionately increased vigilance in watching for other vessels whose lights are visible at the ordinary distance of two miles only, and of the observance of the greatest possible caution after any such lights are discovered ahead, as well as the avoidance also of every alternative in navigation which involves any increase of risk. Such high speed leaves but little time after the light of a sailing Vessel may be discovered, though at the distance of two miles, in which to form a judgment as to the latter’s course; and there is, consequently, an increased risk of mistake in endeavoring to avoid her. If the situation, therefore, involves any doubt as to the other vessel’s course, or of the steamer’s ability'to clear her, it is the duty of the steamer to slacken her speed, in order to obtain further time for observation, and for a correct judgment as to the safest maneuvers.
In the present case the brig’s red light was not seen until long after the time when it should have been seen, and, as I have found above, through the fault of the brig. I am satisfied, however, that the red light was seen a sufficient time before the collision to have enabled the steamer to avoid the brig, had she observed the rules incumbent upon her. The captain estimated the time between his starboard wheel and, the collision to be from a minute to a minute and a half. If the time were only one-half of the larger estimate, say three-quarters of a minute, the Alaska, in changing a point and a half before the collision, must .have gone nearly 200 feet to the southward of the line of her previous course; if the interval between the starboard wheel and the collision was a minute, she must have gone nearly 300 feet to the southward. From the testimony as to the rate of change of other vessels previously taken before me,
The Alaska is a British ship, and, as such, if the provisions of the merchant shipping act of 1873 are applicable to her when sued in this court, the case of The Khedive would he conclusive against her for not stopping and backing. Section 17 of that act provides that “if in any case of collision it is proved to the court before which the ca.so is tried, that any of the regulations for preventing collisions contained in or made under the merchant shipping acts, 1854 to .1873, have been infringed, the ship by which such regulation has been infringed shall be deemed to bo in fault, unless it is shown to the satisfaction of the court that the circumstances of the case made departure from the regulation necessary.” In the house of lords, Lord Watson, in the case of The, Khedive, says, (p. 902:)
“There is nothing in the ease to suggest the existence of any danger of navigation, a due regard to which would have led to a disregard of the sixteenth rule. [Our 21st.] The only existing danger was the very danger to which the rule applies, and to prevent which it was enacted. And there is just as little room for the suggestion that there existed any special circumstances which rendered it neoessan for the Khedive to continue at full speed, instead of slowing, or stopping, or reversing, in order to avoid iinmediatf*554 danger. I am, accordingly, of the opinion that the Khedive, being within the rule of article 16, and not within any of the statutory exceptions to that rule, infringed it; and, seeing it has not been proved to my satisfaction that tho circumstances of the case made a departure from the rule necessary, I consider myself bound by the provisions of the act of 1873 (section 17) to hold that the Khedive was in fault.”
Under the rules and section 17 of the act of 1873 it was accordingly held in that case that “mere proof that the infringement of the regulation did not in fact contribute to the collision is inadmissible “that the legislature intended, at least, to obviate the necessity for the determination of this question of fact (often a very nice one) upon conflicting evidence,” (page 894, per Lord Blacebubn, following the decision in the Fannie M. Carroll, 2 Asp. Mar. Cas. 478;) and Lord Watson adds:
“The legislature did not intend, in certain specified circumstances, to leave mariners to decide for themselves; but, on the contrary, intended to prescribe rules to be observed by all in these circumstances; and that no one was to be excused for non-compliance, or exempted from the statutory consequence of non-compliance, with the rules, in circumstances to which they were applicable, unless he could bring himself within a statutory exception.” 5 App. Cas. 900, 901. See, also, The Rhondda, 8 App. Cas. 549, 557.
In the still later case of The Beryl, 9 Prob. Div. 137, the court of appeals applied the same principle to the Beryl, holding her also in fault for not stopping and reversing at a distance of 300 yards, although the conduct of the other vessel had been “as bad as could be,” and “the officer of the Beryl had been put into a difficult position by the obstinate folly and wickedness of the other, because the Beryl did not do that which the act of parliament declares she must do, ” (page 143;) and in the very recent case of Maclaren v. Compagnie Francaise, 9 App. Cas. 640, the house of lords again applied the same rule as regards the duty to stop and back. If, however, the only means of avoiding a collision, when the risk of collision is first discoverable, is to keep on at full speed, then rule 24 applies, and departure from rule 18 is not only justifiable but obligatory. The Benares, 9 Prob. Div. 16. Cayzer v. Carbon Co. 9 App. Cas. 873.
The Castalia, as I infer from the record, is an American vessel. Since the two vessels in this case belong to different nationalities, if the law of this country, as the law of the forum, (The Scotland, 105 U. S. 30,) rather than the British act of 1873, be the law applicable to the Alaska, then the rule followed in this country would absolve the Alaska in departing from rule 21, only when it appeared satisfactorily that the violation of the rule could not possibly have contributed to the collision. The Pennsylvania, 19 Wall. 125. For the reasons above stated, the evidence in this ease, instead of showing that the departure from the rule could not possibly have contributed to the collision, shows that the departure from the rule did contribute to it. In the view of the English or of the American law* therefore, the Alaska must he held in fault. The testimony of the first officer
The Lepanto, 21 Fed. Rep. 651, 664.