152 F. 593 | 2d Cir. | 1907
Lead Opinion
The presentation of the facts in the opinion of the district judge is most exhaustive, and need not be repeated. We concur with him in the conclusion that the Lowell was in fault. The suggestion of counsel for the appellee that a steamer 322
Of the four persons in the pilot house of the Lowell, two testify that glancing aloft through the fog they saw the Brooklyn Bridge. The wheelman testifies that he did not see it, but, being told by the others that they were passing it, he changed the compass course to the one named. . Of the two witnesses who saw the bridge through the fog, one says that they passed under about the center of the span, the other “a good deal nearer to the Brooklyn tower than to the middle of the bridge.” Neither of these statements can be made to harmonize with the other testimony in the case. Taking even the center of the span as a starting point, the compass course would carry the Lowell several hundred feet clear of the Wall Street ferry slip; but the testimony given by those on the ferryboat, who heard the sound of voices, hoisting engines, etc., on shore, clearly sustains the proposition that the collision took place but a short distance from the slip. Moreover, the testimony of the pilot of the Fulton ferryboat to whom the district judge refers is most persuasive, since it is conceded that the Lowell passed between her and the New York shore. His story is that he just missed making his New York slip, finding himself close up to the white spiles of the Mallory Line Pier. Thereupon he backed out, navigating from the Brooklyn end of his boat, sufficiently in his judgment to enable him to make the slip on his second attempt. But a small amount of clearance was needed, since it was the first of the ebb and the tide barely half a mile ah hour. His estimate that he went back about two lengths seems altogether reasonable. There is no conceivable reason why he should have gone further. But, if the Lowell were where her two witnesses say she was, he must have backed about half way across the East river to enable the Lowell to pass him to the westward- — a supposition too highly irpprobable to be accepted. ' We are entirely satisfied that, when the Lowell passed the Brooklyn Bridge, she was a considerable distance to the westward of the center of the span. And we conclude that her navigation was faulty,' in that she' did not lay
We are unable, however, to concur in the finding that the ferryboat was free from fault. According to the narrative of her master, he blew a four-whistle blast to the bellman at the New York slip when she was in midriver. Immediately after he heard three whistles (the Howell, as the event proved) on his starboard hand well up the river. He did not stop then, but ran on until he was near his dock, when the Howell’s second three blasts were heard, and immediately thereafter the vessels came in sight of each other and into collision. Had the Columbia stopped her engines when the first whistles were heard, and not resumed navigation until the position and movements of each boat was understood by the other so that it might be conducted without danger of collision, this accident would not have happened. Upon cross-examination the master admitted that he gave, attention to those first three whistles by trying “to get under the dock out of that boat’s way if possible”; that he judged it was a vessel coming down; supposed it was one of the big boats; knew he had her on the starboard hand (the Columbia Was heading north at the time and the other was therefore forward of her beam); and knew that it was his duty to avoid her. The district judge held that the starboard-hand rule did not apply because the Columbia was near her Manhattan slip; • but her failure to stop her engines when the first signal was heard occurred when she was only a little way past midriver. The privilege accorded to ferryboats attempting to effect an entrance into their slips is not extended to cover their navigation in the-main river. N. Y. & Norwalk S. Boat Co. v. The Columbia (D. C.) 92 Fed. 939. Her counsel argues that it should not apply because the vessels were unable to see each
“A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, so far as the circumstances of'the case admit, stop her engines, and then navigate with caution until danger of collision is over.”
In our opinion, when from hearing the first three whistles of the Lowell the navigator of the Columbia, while still but a little past mid-river, had good reason to suppose (as he says he did) that one of the large Sound steamers was coming down on his starboard hand and forward of his beam, it was reckless navigation to keep on across what he should have supposed might be her course, instead of at once stopping and sounding alarm signals.
The decree is reversed, with costs of this appeal, and cause remanded, with instructions to divide the damages, with interest, but without costs.
Rehearing
On Rehearing.
Counsel is in error in supposing that the court was ignorant of the East river statute of 1848, since embodied in the New York City consolidation act — it has been before us many times — or that it “overlooked” the fact that the whistle blown by the Lowell near the bridge was a three-blast whistle. Although one of the witnesses testified that it was customary with steamers navigating in a fog as the Lowell was to sound such a signal, it was nevertheless a fault to do so, certainly whenever the engines were not in fact going full speed astern. But we. did not discuss that fault because it was manifest from the testimony that the three-blast signal in no way misled the pilot of the ferryboat.
The petition for reargument is denied.