25 F.2d 639 | 2d Cir. | 1928
(after stating the facts as above). [1,2] Of the McKenna’s fault there seems to us no possible doubt. She had not yet left -the pier side when she .first saw the Transfer, and of course her tow had not either. Nothing prevented her from stopping where she was. She had the wind in her face and the tide would carry her hack to the pier; she could have lain where she was. On the other hand, it was plainly dangerous for her to try a turn which, as the event proved, she .could not make. Her defense is that the Transfer should have ported and given her more room, apparently on the notion that this was a passing ease, though it was not, but one of special circumstances. Neither vessel was on a steady course,, each was maneuvering, and the sailing rules did not apply. The Jamison, 241 F. 950 (C. C. A. 2), The Transfer No. 17, 254 F. 673 (C. C. A. 2). Indeed the rules would be only a source of confusion and disaster if applied to cases like" this, for they are based upon the assumption that the future positions of each vessel may be forecast by the other. This means that the courses are fixed. In this case, for example, it was impossible for the Transfer to know whether the. McKenna would lie at the pier, would pass under her stern, as indeed she should have done, or would try a port to port passing. True, she must have known that the tow was intending to come out, but it was altogether uncertain just how or when she would do it, and the exchange of whistles really told nothing to either party, however each may in fact have read them. If, then, the McKenna expected more room in which to make her turn, she had no warrant for her assumption, andi it was a grave fault to attempt what she did.
The Transfer’s fault was that she did not keep a sharp lookout on the McKenna after the exchange of signals. Her master and mate admit that they did not look at her after that time, until she was half way around, when it was too late. This must have taken a substantial time, during which both men concede that their attention was directed elsewhere. The exchange of whistles did not necessarily mean that the McKenna would not move, but rather, if anything, that she was about to do so. A sharp lookout would have disclosed the McKenna emerging from the pier some time before she had swung half way round, and prompt action would probably, have prevented the collision. While we think the faults of the two vessels were unequal, we cannot altogether absolve the Transfer, whose failure in vigilance contributed to the result.
Decree affirmed.
