127 F. 453 | S.D.N.Y. | 1903
These are two libels to recover damages for a collision between the scow Delaware and scow No. 20. One libel was filed by the owners of the scow Delaware against the steam-tugs the Alfred W. Booth and the Bee, and the other by the owner of the Scow No. 20 against the Alfred W. Booth. The collision occurred off Bay Ridge, in the Upper Bay of New York, on September 7, 1902, about 1:3o a. m. The tug Alfred W. Booth was coming in from sea, having in tow two scows, tandem — the first one on a hawser of about 150 fathoms, and the second one, the Delaware, astern of the first scow on another hawser of about 80 fathoms. The tug Bee was coming down the bay, having in tow two scows (one of them No. 20), also tandem, but close together, on a hawser of about 200 fathoms. Each of the tugs, when they were about hplf a mile apart, saw the red light of the other, and each sounded one whistle to the other, indicating an intention to pass port to port. The Bee immediately ported, and changed her course about four points to starboard, and held that course unchanged until the collision. The Booth also ported two or three points, and when about abreast of the Bee straightened, and resumed her course up the bay. The tugs passed each other in safety, "but the Delaware, at the end of the Booth’s tow, came in collision with
In my opinion, the Booth was at fault for not continuing to bear off to starboard until the tows had entirely cleared each other. The-witnesses put the distance of the tugs apart when they passed each other-at about 250 or 300 feet. Each had been bearing several points!; to starboard of her original course for the last half mile. The evidence shows that such tows on such long hawsers do not usually follow instantly a change of course of the tug1, but drift on some distance in the original direction, or with only a slight change of direction. There was danger, therefore, when the tugs passed each other but 250 feet apart, thát the- scows might drift together, and the Booth should have anticipated that danger, and kept bearing off to starboard until it was certain, that the scows would pass each other in safety.
. I do not see that the Bee was in any fault in the manner of her navigation. Her pilot changed his course, as soon as he saw the Bootly about four'points to starboard, and kept that course till the collision. The serious question in respect to the liability of the Bee is whether she was in fault for being on the wrong side of the channel, in violation of rule 25 (Act June 7, 1897, c. 4, 30 Stat. 96 [U. S. Comp. St. 1901,.p. 2883]). This rule provides that “in narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or midchannel which lies on the starboard side of such vessel.” The Bee was not on the side of the fairway which lay on her starboard side, but was on the east side of the channel. She was in the body of water commonly called the “Upper Bay of New York,” which, where the collision, happened, between Bay Ridge and Tompkinsville, is nearly two miles in width. This body of water is undoubtedly a channel./ It is the channel of the Hudson river, and the channel for all ships passing between New York Harbor and the sea. Moreover, there, are anchorage grounds on each side of the Upper Bay, and the fairway at the place of the collision, according to the chart, is only about half a mile wide. Rule 25 was not made applicable to inland waters by statute until 1897. It had existed for some time previously in England, and is included in the Rules for Ocean Navigation adopted in 1885, and in the International Rules, which went into effect in 1896. Before it was made a rule by statute, it was a well-known rule of navigation, on rivers, in foggy weather, and recognized as such by the courts. The Vanderbilt, 6 Wall. 225, 18 L. Ed. 823. It seems to have been uniformly applied to rivers. It has been held applicable to the Elizabeth river, Va. (The-Victory, 168 U. S. 410, 18 Sup. Ct. 149, 42 L. Ed. 519); the Delaware river (The Maling [D. C.] 110 Fed. 228); the Potomac (The Newport News, 105 Fed. 389, 44 C. C. A. 541); the Providence river :(The Berkshire, 74 Fed. 906, 21 C. C. A. 169); the Danube (The Spearman, 10 App. Cas. 276); the Whang Poo, in China (The Pekin [1897] App. Cas. 532). No case has been called to my attention in, which it has been held that any river, however wide, is,not governed by/the. rule.,; It has,also been held applicable to other-channels, such as the Cardiff Drain (The Leverington, 11. Prob. Div. 117); the President Roads, in Boston, Harbor (The Yarmouth [D. C.] 100 Fed. 667); the entrance to the port of Baltimore (The
My conclusion is that both the Booth and the Bee were in fault for the collision, and that the damages should be divided between them. It may be claimed that the accident would not have happened if the Bee had not violated rule 25, and that, therefore, the Bee should be held exclusively responsible. It is true that the collision would, not have occurred if the Bee had kept on the west side of the channel, but the fact that a vessel is violating one rule of navigation does not justify another vessel in violating another rule and running her down.
The libelants the New York Conti-acting & Trucking Company et al. are therefore entitled to a decree against each steam tug for .half the damages sustained by the scow Delaware. As the owners of the Scow No. 20 are also the owners of the Bee, they do 110’t ask for a decree against the Bee. They are entitled to a decree against the Booth for half the damages suffered by Scow No. 20. There should be the usual reference to ascertain the amount of damage.
Memorandum on Rehearing.
(January 8, 1904.)
This is a rehearing of the above case, under an order permitting the case to he reopened and new evidence taken. ’ Some misunderstanding
The simple- explanation of the reason, as given by the witnesses, why tugs with tows go down on the east side of the bay, appears to' be that it is the straighten course, and they can make the trip in that way a little quicker. Moreover, the principal danger appears to be in the case of tows on very long hawsers, which are notoriously difficult to manage. The evidence shows that such long hawsers are used in order to place the tows out of the reach of the back wash from the lugs, and to enable a little faster speed to be made. It is- perfectly practicable to take out tows with shorter hawsers, and, if the enforcement of the rule were to make that the custom, a clanger in the navigation of the harbor which has frequently been commented on in collision cases would be much lessened. I think, as a matter of fact, that if rule 25 is applicable to the Upper Bay, and enforced, it will tend to prevent collisions. But whether it will or not was for Congress to say. A statute has been enacted, and, of course, if it is applicable in any case it must be enforced. I appreciate that the question is doubtful, but from the best consideration which I have been able to give to the case I think that rule 25 applies, that the decision originally reached in this case was correct, and that nothing contained in the evidence taken on the rehearing affords a sufficient reason for changing it. ' ;