78 F. 649 | 4th Cir. | 1897
This is an appeal from the. decree of the district court of the United States for the district of Maryland, in admiralty. It is a case of collision growing out of these facts:
The court below, after hearing the witnesses, was of the opinion that there was sufficient space for the Bowden to pass between the Miller and the line of wharves, and that the disaster was due in great measure to the fact that the pilot on the Bowden had gone too near to the Miller without porting sufficiently, relying upon the Miller to get out of his way; that he thus lost his head, and, when he reversed his engines, found that the Bowden would not obey her helm. This finding of the fact by the court below has great weight with this court. The Lucy and The Spring Garden, 42 U. S. App. 100-104, 20 C. C. A. 660, and 74 Fed. 572. And a careful review of the testimony leads us to the same conclusion. It is clearly not a case of Inevitable accident, which must be understood to mean a collision which occurs when both parties have endeavored by every means in their power, with due care and caution and a proper display of nautical skill, to prevent the occurrence of the accident, and when the proofs show that it occurred in spite of everything that nautical skill, care, and precaution could do to keep the vessels apart. The Maybey and Cooper, 14 Wall. 215; The Grace Girdler, 7 Wall. 196. In these narrow channel ways, the utmost care and precaution are required, not only to prevent collision, but to avoid the risk of collision. There is no room for theory. The rapid succession of facts must he closely observed, and must govern. The Bowden may have concluded that the Miller was under way. But when she gave her whistle and received no response, nor observed any movement on the part of the Miller, her attention should have been arrested, and it was her duty to have taken every precaution to avoid the result of negligence, even, on the part of the Miller. Instead of doing this, she pursued her course unchanged, notwithstanding her defect in steering, until it was too late either to change her direction, or to reverse and hack in time to prevent the collision.
But was the Miller wholly without fault? She had the right to do as she did, — to be towed out into the ¡stream. This, it seems, was the custom with all the steamers of her line. But absolutely helpless as she was when she reached the midchannel, in a narrow seaway, the entrance and exit of all vessels using the inner harbor, it behooved her to take and exercise every precaution possible. While elaborate rules have been adopted, intended to prevent the risk of collision, still so important is it that every possible precaution should he taken, that these same rules themselves provide that nothing contained in them shall exonerate any ship from the consequences of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case. The Sunnyside, 91 U. S. 208. "The rul
“Being in full view of ail approaching vessels, and at a sufficient distance to enable them to keep away from her by getting her tow in readiness to move, the pilot of the tug had no reason to suppose the Eagle would not go on one side or the other of him. When he saw the Eagle coming towards him, he hailed her to keep off. There was nothing he could do more, since he could not safely move forward or backward.”
There was no such effort on the part of the Miller, no action or precaution whatever, and consequently she also was in fault. Under these circumstances, the damages should be apportioned. Let the case be remanded to the district court, with directions to take such order therein as will be in accordance with this opinion.