The Hazelton, Nos. 188, 189

Nos. 188, 189 | 2d Cir. | May 11, 1921

KNOX, District Judge

(after stating the facts as above). [1] In our opinion the entire blame for this collision should be borne by the Arlington. It is true that boats of her class, when operating in or close by the entrances to their own slips, have rights somewhat superior to those of other craft in the immediate vicinity. The Breakwater, 155 U.S. 252" court="SCOTUS" date_filed="1894-12-03" href="https://app.midpage.ai/document/the-breakwater-94033?utm_source=webapp" opinion_id="94033">155 U. S. 252, 15 Sup. Ct. 99, 39 L. Ed. 139" court="SCOTUS" date_filed="1894-12-03" href="https://app.midpage.ai/document/the-breakwater-94033?utm_source=webapp" opinion_id="94033">39 L. Ed. 139. These rights, however, are no greater than those reasonably required for the proper and efficient navigation of the privileged boats. Carroll v. City of New York, 249 Eed. 453, 161 C.C.A. 411" court="2d Cir." date_filed="1918-01-16" href="https://app.midpage.ai/document/carroll-v-city-of-new-york-8807268?utm_source=webapp" opinion_id="8807268">161 C. C. A. 411. They must maintain a sharp lookout for craft passing up and down the stream, and, once safely clear of their racks, are bound to navigate with respect to other craft in accordance with the rules of the road. In this case there is no good reason why the Arlington should not have seen the Hazelton at the same time she observed the Depew. Neither that boat nor her tow obstructed the view from the Arlington. Her master frankly says there was “nothing to prevent” seeing the Hazelton, “I presume, but my attention being called to the exchanging whistles with the Depew and getting across his bow and looking at the distance for crossing his bow.”

[2] The delay in seeing the Hazelton seems to us to account for all that transpired, and there can be no basis for holding the Hazelton liable, unless the District Court was justified in finding, as it did, that she was bound to hear the exchange of whistles between the Depew and the ferryboat, and then to navigate in recognition of the rights of ferryboats in entering and leaving their slips. Assuming for the moment that the Hazelton was not, as claimed by the Arlington, more than 600 feet off the pier ends, she was, being the privileged boat, entitled to proceed, irrespective of the arrangements made between the Depew and the ferryboat.

The fact that the Depew was willing to, and did, give way to the Arlington was no cause for the Hazelton to do so. The D.cpew had a tow, the Hazelton was light, and, for all the latter knew, there might be good reason why the former did not care to proceed. The arrangement made as between the Depew and the Arlington did not curtail either the rights or obligations of the Hazelton. We accordingly hold that there was no duty upon the Hazelton to take note of, and to act in accordance with, the signals passing between the Depew and the Arlington.

The Hazelton, under the starboard hand rule, was bound to keep her course and speed, and, being at least 600 feet off the pier ends, could not with propriety depart from the obligation resting upon her prior to the time that the Arlington blew her the first signal of two blasts. Until that moment, at least, the Hazelton believed that the Arlington would navigate so as to pass under her stern. The ferryboat says this would have been impossible; hut, in view of all the testimony as to the distance of the Hazelton from the pier ends, we are unable to say that such was the fact.

The signals from the Arlington, once the Hazelton was observed, followed in quick succession, and, even if it be assumed that the Hazelton should have stopped and reversed her engines at the first of such signals, it is by no means clear that the collision would then have been avoided. The master of the Arlington, in imputing fault to the Hazelton, suggests that she should have navigated as follows:

“If he had answered my first whistle according to law by an alarm whistle and tin-owed his wheel aport, that would have given me an opportunity to stop, and he would have went on ahead; but, be would bave had to alter his course to do it.”

This, in our opinion, is but another way of saying that the Arlington, through her own fault, having placed the Hazelton in an emergency, primarily relied upon her to extricate both vessels from their perilous position. This being so, the conduct of the Hazelton, when placed in extremis, is not properly the subject of that degree of censure upon which her liability can be predicated. In this respect this case is not unlike that of The Haida (D. C.) 191 b'ed. 623, wherein it was held that, when the burdened vessel is grossly at fault, the law puts upon her the burden of showing clearly that the other was at fault. Such burden has not been borne by the Arlington. We.are not convinced that the Hazelton’s failure to change her course and speed, upon receiving the first signal given her by the Arlington, and to then answer the Arlington’s signal, made any real contribution to the collision. The second signal, at which the engines were stopped and reversed, followed immediately after the first; and having regard for that interval of time, almost instantaneous though it be, wherein a person must comprehend a condition and determine upon his course of action, we are unwilling to hold that the Hazelton’s action, or lack thereof, was of such character as to merit condemnation.

For the reasons specified, we hold the Arlington alone at fault, and reverse the decree below.