66 F. 596 | N.D.N.Y. | 1895
On the morning of September 13, 1893, the barge Wenona was being towed by the tug Grace Danfortb down the Blackwell Canal, át Buffalo, bound on a voyage up the lakes. The Wenona is 193 feet long and 30 feet beam. On the day'in question she was partly loaded and drew about 12 feet of water. She is a sailing vessel and was wholly under the control of the tug. The Danforth is a large and powerful harbor tug, about 75 feet long and 17 feet beam. The line between the tug and barge was about 25 feet in the clear. While the Danfortb and Wenona were proceeding down the canal, bound out, the Craig, in tow of the Alpha, was coming up the Buffalo river, bound in, it being her intention to turn into and proceed up the Blackwell Canal. Tbe Craig is a large and powerful propeller 288 feet in length and 42 feet
The accusations against the Alpha and Wenona may be dismissed in a few words. Neither was guilty of a fault which contributed in any appreciable degree to the accident. The Wenona was entirely under the control of the Danforth and her steeringseems to have been without just ground of complaint. It is not necessary to determine whether it would have been prudent for her to have taken another tug for the reason that the theory that a
Counsel for these vessels have submitted ingenious arguments to prove that they were not at fault, but should the court accept both as correct it must be found that no collision occurred, for if the counsel for the. Craig be correct in his conclusions she was stationary at the time of the accident, and if the counsel for the Danforth be correct the Wenona’s stern had passed some distance beyond the Craig when the turn down the river was made. But the inquiry must begin with the unquestioned fact of the collision. This was not the result of inevitable accident. It took place in broad daylight when there was nothing in wind ór water to make navigation dangerous. It was the result of bad seamanship. Either the Craig or the Danforth, or both, were to blame.
As to the Craig. Before the Danforth passed the stern of the Craig the latter’s bow was imbedded in the mud at Watson’s point and her stern was 300 feet down the river pointing about W. by N. The Craig is longer than the Blackwell Canal is wide, and it is probable that.after running aground her stern was considerably less than 100 feet from the signal station dock on the southerly shore of the river. If the Craig backed while lying in this situation it was negligence. It was clearly her duty to suspend her efforts to get off the shoal during the few minutes necessary to enable the Danforth and Wenona to pass. To obstruct the channel still more was careless seamanship'. I do not understand that this proposition, generally speaking, is disputed, but it is argued on behalf of the Craig that she did not back or attempt to back until after the Wenona had passed and even if she did back her position was such that she must have widened the channel instead of obstructing it. This argument is supported by. nice calculhtions based upon the assumed positions of the vessels at the time of and just previous to the accident. When, however, it is remembered that an error of a few feet in the major premise may destroy the most plausible reasoning and that it is simply impossible to locate the vessels with perfect accuracy, the theory that the Craig could not have backed into the Wenona must give way before the testimony of witnesses who swear that they saw her back into the Wenona. The preponderance of testimony is to the effect that, from the moment the bow of the Craig entered the mud it was her purpose to back out as quickly as.
With the fact of the Craig’s backing so clearly established, it follows almost as a necessary inference that she must be held liable. The burden is strongly upon her to show that this dangerous maneuver did not contribute to produce the accident. She has not: done so; she has advanced ingenious theories, but, as before stated, they must yield to the oaths of witnesses who were standing on solid ground and who swear that they saw the Craig back into the Wenona. The testimony of those stationed on moving vessels is, as to such matters, illusory, deceptive and unreliable. McNally v. Meyer, 5 Ben. 239, Fed. Cas. No. 8,909.
But was the Craig solely to blame? I cannot resist the conclusion that the Danforth might have prevented the accident, or at least lessened the force of the blow. Perhaps as succinct an account of the accident as any is that given by the boy who stood on the dock of the life-saving station. He says that there was about 75 feet of water between the stern of the Craig, after she had grounded, and the dock. That this was a narrow passage through which to tow a barge 193 feet long and 30 feet wide on a rounding course cannot be denied. The situation required the greatest care and caution on both sides. The witness continues as follows: “I saw the Danforth come down towing the Wenona and the Danforth took a sheer right across the creek into the Armour, and when she got there she pulled over. The Craig backed right up. I saw her move sternways and strike the Wenona.” I am convinced after reading the testimony that the Danforth, in view of the position of the Craig, and of the fact that the Craig was “backing strong,” should have reduced her speed and should have proceeded with the utmost care. Instead of doing this she “kept going right along” until she had almost reached the Armour on the north side of the river, and then without looking back to ascertain the position of the tow her master wheeled her around sharply to port, opened his engine wide and proceeded straight down the river. The tendency of pulling the bow of the barge thus suddenly to port was to swing her siern to starboard and directly against the backing Craig. This is, in my opinion, precisely what took place. Not only is this view corroborated by a large number of witnesses, including some of those called on behalf of the Danforth, but also by the character of the Wenona’s wound. It is perfectly clear that the Craig could not have acquired much sternway. She was large, heavily loaded and had only a few moments before come to a dead halt with her bow in the mud. She could not have backed far and must have been proceeding ata snail’s pace when the vessels came together. She could not have inflicted ai wound 40 feet in length on the Wenona’s quarter unless her backing were supplemented by the swinging of
It is possible that the difficulty in- formulating a theory of the collision/ which can be followed to a perfectly satisfactory conclusion, is found in the fact that counsel have not attempted to point out any faults except those occurring at and just previous to the moment of collision when the vessels may almost be said to be in extremis., My own impression' is that the negligence which brought about the disaster occurred some time before the Craig grounded.
It is thought that a cogent argument can be constructed to show that it was a grave fault for a heavily loaded propeller to attempt to enter a narrow canal when she knew that she would probably run aground at the entrance and that another steamer was coming down the canal so that a meeting at the turn was almost inevitable. When the Craig heard the Danforth’s signals' she could have slowed down, and, if necessary, passed the entrance of the canal and up the Buffalo river. But for the grounding of the Craig, no accident would have happened — this is beyond dispute. And yet the Craig knew that grounding was almost certain to follow her attempt to enter. The evidence is undisputed that large boats “generally fetch up there.” To thrust such an immense vessel into a shoal at the mouth of a narrow channel already occupied by a tug and tow which are rapidly approaching the mouth, seems hardly compatible with prudent seamanship. The Michael Davitt, 28 Fed. 886; The Troy, Id. 861; The Iron Chief, 53 Fed. 507; The Osceola, 50 Fed. 326.
To a less extent these observations apply to the Danforth. Knowing what was likely to happen if the Craig attempted to enter the Blackwell .Canal, knowing that a vessel a third longer than the canal is wide would probably run aground at the point and might block the entire entrance, would it not have been wiser to have stopped or to have slowed down still further so as to approach the point of danger with as little momentum as possible? This view of . the subject, — so in accord with prudence, safety and common sense, at least from a layman’s standpoint, — finds support in the record. The master of the Craig testifies:
“When we got in by the lighthouse, I am not certain whether it was the Alpha or the Danforth that blew a long whistle first, it was blown and answered. Q. What did that indicate? A. It was turning the corner and was supposed to stop. Two boats meeting along in there in that shape one will blow a long blast and the other will answer her and is supposed to check down and stop.”
If either had checked down and stopped no collision would have occurred.
I make these suggestions with considerable hesitancy, for the reason that they have not been alluded to, although the cause has been presented by counsel of unquestioned ability and expertness in the law maritime. Possibly, however, the failure to do so may be explained on the supposition that neither counsel cared to advance an argument which might prove to be a two-edged sword.