267 F. 373 | 4th Cir. | 1920
On the evening of January 6, 1918, the Norwegian steamship Herm was moored on the north side of the Chesapeake & Ohio coal pier No. 12 at Newport News. Another steamer, moored ahead at the same dock, took up so much space that the Herm extended beyond the pier 35 to 40 feet. A Holland steamer, moored on the south side, extended about the same distance beyond the pier. Several days before, at different times, the barges McDonald, Coastwise, and No. 19 had anchored about a quarter of a mile below the pier. Owing to the unusual severity of the weather, the ice in Norfolk harbor for a week or more had been causing vessels to drag their anchors, thus bringing upon mariners much difficulty and anxiety. About 3 or 4 o’clock on the morning of January 7 the three barges began to drag toward the pier at which the Herm was moored3, the McDonald being nearest the pier, and the Coastwise between the McDonald and the No. 19. Upon reaching the south side of the pier, the McDonald struck the Holland steamer, and immediately after collided with the Plerm, doing her considerable damage.
The Herm libeled the McDonald, alleging negligence in her navigation in several particulars. The McDonald, denying negligence on her part,'brought in the Coastwise and the No. 19, alleging that through their negligent navigation she was forced upon the Herm. Upon evidence taken by deposition, the District Judge dismissed the libel without a formal opinion, saying in his decree, however, that the Herm alone was negligent.
*375 “Inevitable accident, as applied to cases of tliis description, must be understood to mean ‘a collision wliicli occurs when both parties have endeavored by every means in their x'ower, with due care and caution, and proper display of nautical skill, to prevent the occurrence of the accident. The Locklibo, 3 W. Rob. 318; The John Frazer, 21 How. 184.’ ” Union Steamship Co. v. N. Y. & Va. Steamship Co., 24 How. 307, 16 L. Ed. 699; The Mabey, 81 U. S. (14 Wall.) 204, 20 L. Ed. 881.
While there is conflict in the testimony on the point, it is certain that the three barges, while dragging, came together, and that the pressure of the Coastwise and the No. 19 influenced the movement of the McDonald and contributed to the collision.
The McDonald and the Coastwise had two anchors, but no effort was made to use more than one. The masters of the three barges charged with negligence testified that one anchor will hold a vessel against moving ice better than two, for the reason that the anchor chains are apt to get crossed, and that then they will not cut the ice as well as one eliain. Carmichael, a disinterested expert, testified strongly to the contrary, saying that, if the anchor chains are properly put out, not only will the two anchors hold better, hut the two chains will cut the drifting ice more effectively; and Peterson, another barge master of experience, testified that, while there was a difference of opinion on the subject, it was better to put down both anchors. The weight of the evidence seems strongly in favor of the use of two anchors.
Assuming doubt, however, on that question, and assuming that there may be conditions of the ice in which one anchor will hold better than two, under the conditions which confronted the masters of the barges, it seems plain that, when the)r found they could not hold their vessels with one anchor, they should have used two. This was admitted even by the masters of the McDonald and the Coastwise. The dragging was very slow, and for an hour or more the navigators of the barges had eve^r opportunity to know that they were menacing the Holland steamer and the Herm. We can see no excuse for failing to try to stop their
The No. 19 must be acquitted of negligence. She had lost an anchor the night before, and had had no opportunity to procure another. .
A decree will be entered, charging the damages equally on the Herm, the McDonald, and the Coastwise.
Modified.