The Cherokee, 253 F. 851

The Cherokee

253 F. 851 | S.D.N.Y. | 1918

LEARNED HAND, District Judge

(after stating the facts as above). [1] It is clear that both steamers are at fault; the Hugo for failing to hold her course and speed,-and the Moran for failing to keep out of the way. I attach no value to the Moran’s testimony of the Hugo’s change to port and then to starboard. She attributed her own movement across the Hugo’s bows to changes in the latter’s course, a natural enough mistake at night. At first she saw the red light, which warned her of her duty to keep out of the way, and this duty she did not observe. Her porting I question, in view of the Cerberus’ testimony, which was in her wake, and whose master says that she made no change whatever. If there was any change, it was not noticeable, and altogether insufficient. Once across the Hugo’s bow, she naturally saw only her green light thereafter.

[2] The Hugo’s first change frotn north to north by east I do not ■charge her with; the vessels had not at that time begun to navigate with regard to each other, but all her subsequent movements were wrong; that is, her further change to north-northeast and her changes of speed. Confessedly these were not on the theory that she was the privileged vessel on crossing courses, as was the fact. She did not make out the Moran’s green light, and I am ready to take her explanation that the searchlight blinded her, a most reprehensible feature to the whole affair. Still I do not understand that this is urged as an excuse for her. The Moran’s light was there; it was of regulation size and properly trimmed. If the Hugo was blinded, she should have •stopped dead at once. Whatever the reason for failing to make out the side light on a clear night, the responsibility as between the two vessels is hers.

■ [3] There remains, therefore the fault qf the Cherokee, which carried no side lights as prescribed. Some argument is made of the long custom not to change lights after crossing the harbor line. . I need hardly say that no custom can avail against the statute. Deep sea mariners need not charge themselves with local regulations outside of harbors. That is one reason for taking on pilots. They are not to be held to a knowledge that hand lanterns upon staffs indicate a tow in *853the wake of a tug. Looking for side lights, they will almost certainly be confused by the appearance of great numbers of tiny lanterns on the surface of the water, as was the case here, for a number of tows were following the Moran down. Whether the requirement to carry only side lights be onerous or not, it must be observed outside harbor limits; else entering vessels cannot possibly navigate to the harbor limits with safety. I cannot understand how this universal rule of the sea can be fey a moment questioned.

[4] Hence the scow can escape only on the assumption that her fault did not contribute. This position appears to me to be speculative. I do not believe that the scow was blanketed by the Cerberus, as the Hugo supposes; but, if she had carried regulation side lights, the steamer might have seen them, or might not. Who can say beyond a a reasonable doubt that she would not? Mr. Brown seizes upon certain passages in Hansen’s deposition to show that he said it would have made no difference. These do not give a fair understanding of his meaning. What he said was that lights like the hand lanterns, if carried as sidelights, would have been worse than the lanterns themselves. That I can well believe, but it does not follow, and he is careful to insist that it did not follow, that regulation side lights could, not have helped. It is true that he did not see the Moran’s green light, and the chances, perhaps, are that he would not have done better with the Cherokee’s, if she had carried one; but how can it be asserted beyond peradv enture ? Under the accepted test for violations of statutory rules, I must give the Hugo the benefit of the doubt, and hold the Cherokee at fault with the tugs. Certainly the Hugo was looking for a green light on the possible tow, as well as on the tug.

The libelant will take a decree for one-third damages against each steamer, and without costs.