The Cotopaxi

20 F.2d 568 | 2d Cir. | 1927

AUGUSTUS N. HAND, Circuit Judge

(after stating the facts as above). There can be no doubt that the starboard hand rule did not apply to this case. The Saturno was not navigating upon a course, but was leaving a pier preparatory to entering upon her course. It is perfectly settled by familiar authority that the situation is one of special circumstances, governed by article 27 of the International Bules. The Servia, 149 U. S. 144, 13 S. Ct. 877, 37 L. Ed. 681; The John Rugge (C. C. A.) 234 F. 861; The Washington (C. C. A.) 241 F. 952; The M. Moran (C. C. A.) 254 F. 766. It is contended that the place from which the Saturno emerged was not a slip, because a wide basin intervened of about 1,200 feet in width between Pier 4 and the next pier to the west. We can see no merit in such an attempted distinction. It is true that the Saturno might have moved out into the channel from a point much farther westward from the stern of the Cadiz than the place she chose. The reason that the starboard hand rule does not apply to a vessel leaving a pier is, not that another pier is close to it, but because in such a situation she is not and cannot be navigating on a steady course. Possibly, if the Saturno had been coming out diagonally from the eastern end of the wide basin, in such a way that she was proceeding through it and out on a steady course down the harbor to pick up her next load, there might have been some cause to argue that she was a vessel on the starboard hand of the Cotopaxi, to which articles 19 and 21 of the International Buies would apply. But she was on no such course. She approached the channel hidden by a large vessel moored at the pier and close to the Cadiz, and was not navigating on a course at all.

We think it also clear that the Cotopaxi was negligent in passing through the narrow space between the Cadiz and the Indianic, and necessarily close to the pier ends, without having a special lookout. At any time some vessel might have emerged from behind the high stern of the Cadiz and come into close proximity to the Cotopaxi. It is not a question of harbor regulations of which we have, no proof, but of a reasonable precaution applicable to the situation in hand. It is argued that the pilot could see the Saturno as well from the bridge as could a lookout in the prow. When one remembers how low the tug lay and how close she was to the Cadiz, riding high out of the water, the argument is not satisfactory. We cannot say that a proper lookout might not have reported the Saturno to the bridge some time before the pilot could descry her. The District Judge rightly held that the absence of a lookout in these circumstances was a fault.

It was likewise a fault on the, part of the Cotopaxi that she did not promptly reverse on seeing the Saturno so close to her. The .whole ease of the Cotopaxi is really built upon the supposed application of the starboard hand rule. To justify her claim that it applied, and doubtless in hope of showing that the Saturno was on a steady course, some of the witnesses attempted to plaee the collision much farther frorp the pier end than it really was. But that the Cotopaxi, whatever may have been the theory of her pilot, ported her helm and tried to pass inside the Saturno, seems unquestionable, and that was her initial and most serious error. It prevented her from cheeking her headway to the utmost when danger was very imminent. The failure to reverse promptly was an added fault. The Stanmore, L. R. 10 P. D. 134; The Manitoba, 122 U. S. 97, 7 S. Ct. 1158, 30 L. Ed. 1095.

In spite of the above errors in navigation, which rendered the Cotopaxi undoubtedly liable in damages, we must regard the Saturno as also gravely in fault. We are referred to no regulation for the harbor of Havana requiring a vessel to blow a whistle when leaving a slip, but we regard it as plainly negligent for a vessel to emerge from a hidden plaee into a frequented channel without giving ample warning of her approach, and without maintaining a .vigilant lookout in such a situation. The Saturno took neither precaution. She blew her so-called slip whistle, not as she emerged, but some time before, even prior to the time when she “stopped alongside the Cadiz.” If she had had a lookout on her bow, she would have seen the Cotopaxi sooner than she did and would have had 25 feet more within which to cheek her headway and back into the slip. The distances were short, and the vessels all were dangerously close. Such an item of 25 feet was important. Eor a small tug to emerge from behind a big steamer into a frequented channel, without a lookout and without warning, was a fault so serious as to call for a division of the damages.

The decree is reversed, with costs, and the cause remanded to the District. Court, with directions to enter the usual decree for half damages.