250 F. 850 | 2d Cir. | 1918
(after stating the facts as above). [1-3] The Madison seems to us clearly at fault. She did not see the Patchogue, and therefore made no effort to avoid her, allowing her tow, which was at least 500 feet long, to swing out of line probably 200 or 300 feet in a narrow part of the river, not over 1,400 feet wide. This management of her tow has been several times condemned in the District Court. The Pencoyd, 157 Fed. 134, Thames Towboat Co. v. Penn. R. Co., 157 Fed. 305. We think it clearly improper navigation. While it is true that the East River is not a narrow channel (The Wrestler, 232 Fed. 448, 146 C. C. A. 442), the obligation to keep tows in line was recognized by this court in the case just cited. If the tugs have not sufficient power to do this alone, they must employ hell)-
We think, however, that, the Patchogue is also at fault, because of the failure of her lookout, Miller. This man was stationed on the rear end of one of the floats at the time when the Patchogue began to back out, at which time he did not see the Madison coming up the river. For this, however, we do not charge him. As the Patchogue backed out and her stern swung upstream, Miller ran forward over the cars on the float and took his position at the forward end. At that time he saw the Madison about under the bridge, and, supposing that her tow would keep clear, he did not report her. The Patchogue’s master himself was necessarily looking aft, observing the piers, of which he must keep clear, especially Pier 26, at which another float was made fast. It is not certain at just what time he made out the Madison, but meanwhile the lookout undertook to form his own opinion as to whether or not his boat would “beat out” the Madison. In this we think he was ■clearly wrong. A lookout’s duty is to report as soon as he sees, not only any vessel with which there is danger of -collision, but any which may in any way affect the navigation of his own. He may not himself engage in speculation about the probabilities of collision, or the relative movements of the two. # That responsibility rests upon the master alone.
We cannot, of course, say that, if he had in fact reported as soon as he reached the forward end of his float, the result would have been different; but wé think the burden is upon the Patchogue to show that his failure did not contribute to the collision. The Anna W., 201 Fed. 58, 119 C. C. A. 396; The Pilot Boy, 115 Fed. 873, 53 C. C. A. 329 (semble); The Albert Dumois, 177 U. S. 240, 254, 20 Sup. Ct. 595, 44 L. Ed. 751. It is true that this failure offfhe lookout was not a violation of any statutory rule; but we do not distinguish between the burden imposed upon a vessel which violates so stringent a requirement, although it depends only upon customary law, and that concededly imposed by the violation of a statutory rule.
The decree will be modified, so as to hold both vessels in fault, with ■costs in this court.