15 F. 119 | S.D. Ohio | 1883
(sitting by designation.) Notwithstanding the voluminous testimony in this case the essential facts lie within a small compass. There is opposite Rising Sun, on the Ohio river, a very narrow channel, caused by the encroachment of a bar, making out from the Kentucky shore, and at the stage of water existing at the time of the collision sued for, navigation at the place was difficult. It is conceded that this place comes within the application of the following rulo, prescribed for the government of pilots:
“ Rule 3. Where two boats are about to enter a narrow channel at the same time, the ascending boat shall be stopped below such channel until the descending boat shall have passed through it; but should two boats unavoidably meet in such channel, then it shall be the duty of the pilot of the descending boat to make the proper signals, and, when answered, the ascend*120 irig boat shall lie as close as possible to the side of the channel the exchange of signals may have determined, as allowed by rule 1, and either stop the engines or move them so as only to give the boat steerage way, and the pilot of the descending boat shall cause his boat to be worked slowly until he has-passed the ascending boat.”
The tow-boat Lane, while descending the river with barges in tow, four heavily laden, and one, a fuel'supply barge, was endeavoring to enter this narrow channel, and when about the head of it one of the barges in the lead grounded on the edge of the bar. -She at first attempted to force the tow forward, but not succeeding began to swing with the barges still afloat down stream, but out of the channel and over the bar, loosening the lashings of the three rear barges, until she and they became detached from the other two. Fearing that -the force of the current would tear out the head-pieces of the other two barges, the captain of the Lane directed the ratchets, fastening the grounded barge and its companion leader to the starboard, to be knocked off, supposing that the lashings of the cable would hold it fast, but. give sufficient play .to prevent the tearing out of the head-pieces. These cable lashings parted—according to the testimony of the people on the Lane—by force of, the strain of the current, and the starboard leader bargé left the grounded barge and started down this narrow channel, coming in collision with the steam-boat Cherokee, by which it and its cargo of coal became a tota] loss, for which loss this suit is brought by the owners respectively of the barge and coal against the Cherokee. The negligence imputed by the libel is a violation of the above-quoted pilot rule, and the customs of navigation, by being in the channel at all, and a want of proper care in avoiding the collision after the barge was adrift.
The proof establishes, in my judgment, in regard to the movements, of the Cherokee, these facts: The Cherokee, ascending the river, was at the foot of the channel about the time the barge of the Lane grounded, and, observing the Lane, blew one whistle, as the rule' then required, to know of the Lane by her answering signal on which side of the channel she would come out, to which signal there was no response. She also stopped, except for steerage way, close in under the bar and at the foot of the channel, as required by the above-mentioned rule, for a space of about five minutes. Hearing no response to her signal, and observing that the Lane made no progress, the conclusion was that she was aground; and it appearing that there. was room to pass through the channel the Cherokee proceeded up the river, had passed the stern of the Lane, and was about mid-
It does not seem to me that the proof makes out any negligence on the part of the Cherokee as far as relates to her efforts to avoid a collision after the barge was adrift. The difference between the witnesses on this point arose out of a divergence of estimates of time and distance, and, I think, all things considered, the very decided preponderance of the known facts is in favor of the shortest time and the shortest distance between the breaking loose of the barge and the collision; and this fact, also, makes it clear to my mind that the Cherokee was proceeding very slowly and cautiously, for if she had not been, she could not have checked her speed and reversed her engines, as even the libelant’s witnesses describe, in so short a time as there must have been between the breaking loose of the barge and the actual contact with the steam-boat.
Was the Cherokee negligent, and is she to be blamed for being in the channel ? I think not. I do not see how she can be benefited by the circumstance that there was no response to her signal, except that it may have confirmed, however unreasonably, her pilot’s judg
The question of fault where a vessel enters a narrow channel, while another is aground on its banks depends upon the apparent situation and circumstances of the vessel aground, making proper allowances for a change in the relative situation of the vessel aground. If it seems reasonably safe to attempt the passage, the then situation only is to be taken into account, and not the unexpected changes which,occur while making the attempt. The Thomas A. Scott, Brown, Adm. 503. Now, the Lane’s own people expected the cable'lashings to hold the barge that went adrift fast to the grounded barge. According to their own theory, they loosed the iron ratchets to prevent pulling out the head-pieces, and expected the ropes to hold this barge .fast to the,grounded barge until the Lane could manage to do whatever was required to get out of the difficulty. If they relied on this, it was not unreasonable for the Cherokee to rely on it; and if both
The drifting of the barge changed the situation, and it is not with reference to that change the Cherokee must be judged. If the situation had remained as it was when she entered the channel, she could have passed, and had a right to pass. She did not change the attitude of the barge, nor contribute to any change. She had no right to run down the barge, or collide with it, if she could avoid it; and, if the barge had been coming through the channel before the Cherokee entered it, with not sufficient room for both, she would have been compelled to wait till the barge came through. But that was not the case. The barge was supposed by all hands to be securely attached to the grounded barge, and in that condition there was no danger of collision, and it is by that situation the conduct of the Cherokee is to be tested. If she had remained out of the channel a few minutes longer, there might have been no accident, and the floating barge might have acquired a right of way to the channel; but that is not, obviously, the true criterion of her conduct. With relation to the Lane, the Cherokee had no duty she did not perform. She gave the proper signals, and although she had no right to'proceed, if the Lane had been coming on, without invoking a response by compliance with rule 2, and sounding several whistles, it is sufficient to say the Lane was not coming on, and at the time the Cherokee entered the channel had no intention of coming on. Indeed, if the Lane may bo treated as a vessel working at another vessel aground—and I do not see why she may not be so treated—it was her duty, where that was possible, to have made way, if necessary, for the Cherokee; to temporarily have suspended her work and cleared the channel, that she might pass. The Napoleon, Brown, Adm. 32; The Thomas A. Scott, supra.
In any view that it is proper to take, it seems to have been an inevitable' accident, for which the Cherokee, certainly, was not to blame, unless she -was compelled to await all the delay incident to the trouble in which the Lane found herself. The Cherokee did not
Dismiss the libel.