151 F. 168 | 2d Cir. | 1907
This is an appeal from a decree adjudging the steamer North Star solely in fault for the collision between that vessel and the Siemens which resulted in a subsequent collision between the two vessels, and also between the Siemens and her own tow, the barge Holley.
The facts of the case are fully stated in the opinion of Judge Hazel in the court below, and, as we agree substantially with his findings, , it will serve no useful purpose to recapitulate the evidence. The essential facts are these: The collision took place in Little Rapids cuf, an artificial channel between submerged rocks, then about 300 feet wide, in the St. Mary's river, in the early morning of a clear day a short distance below the crib lighthouse at the northwestern entrance of the cut. The Siemens was a steel steamship 432 feet long and 48 feet beam, and was loaded with over 5,000 tons of ore to a draft of 18 feet; and she had in tow the Holley, a steam barge 361 feet long and loaded with 5,000 tons of ore. The North Star was a freight steamer 300 feet long with a beam of 40 feet, and at the time was loaded so that she was drawing 16 feet 8 inches of water. The Siemens and her tow were capable of a speed of 10 miles an hour, and the North Star was capable of a speed of 12 miles an hour. The vessels had been mooréd the night' previous at a dock known as the “Government Pier” at Sault Ste. Marie, about a mile and a -half above the Little Rapids cut, awaiting daylight to proceed down the river through Little' Rapids cut to Lake Huron. The compass course descending the river in mid-channel is approximately east southeast to the mouth of the cut, and thence through the cut is approximately south southeast; and there is a current running about two miles an hour until the cut is reached, and thence through the cut running a mile or more faster. The Siemens had taken her tow on a hawser of 700 to 800 feet, and was proceeding near mid-channel down the river when the North Star, having straightened out on her course, and desiring to enter the cut before the Siemens, blew a signal of two whistles to the Siemans, indicating that she proposed to overtake and pass her on the port side. The Siemens did not respond to this signal, and claims she did not hear it. The vessels proceeded down the river, the Siemens and her tow at a speed of about eight or nine miles an.hour over the land, and the North Star on a course to the port of the Siemens and her tow, and at a speed by which she was gradually overtaking the other vessels, until they had reached Bayfield Rock, when the North Star, having overtaken the Siemans' tow, gave another signal of two whistles to the Siemens, indicating her intention to pass the Siemens on her port side. To this signal the Siemens responded by four or more rapid blasts of her whistle, indicating that she did not deem it safe for the North Star to attempt to pass. The North Star was at this time about half a mile above the entrance to the cut. Her master, assuming the signal of the Siemens to be a call to “hurry up,” increased the speed of his vessel. After running about a quarter of a mile and observing that the Siemens had not slackened speed, he gave the Siemens a signal of three whistles, as a notice to check her speed. To this signal the Siemens responded with" four or more rapid blasts of her whistle, and kept on without change of
By the rules of navigation governing St. Mary’s river (those of the act of Congress of February 8, 1895, c. 64, § 1, 28 Stat. 645 [U. S. Comp. St. 1901, p. 2886] and those'not inconsistent therewith made by the Secretary of the Treasury pursuant to that act and the act of March 6, 1896, c. 49, § 1, 29 Stat. 54 [U. S. Comp. St. 1901, p. 3551]), it is lawful for a vessel descending the river to overtake and pass another vessel between the government pier and crib lighthouse at the northern entrance of the Tittle Rapids cut; but it is not lawful for a vessel to proceed at a greater speed than nine statute miles per hour over the ground, or for an overtaking vessel to pass a vessel ahead in Little Rapids cut. These rules also, like the general rules of navigation, provide that any vessel overtaking another shall keep out of the way of the overtaken vessel, and that where one of two vessels is required to keep out of the way, the other shall keep her course and speed. Rules 23 and 26 of the act of Congress relate to signals between steam vessels indicating their course to starboard or port, and do not prescribe the signals which are to be used between an overtaking vessel and the vessel ahead. The rule relative to signals between such vessels is rule 5 of the Secretary of the Treasury, as there is nothing in this rule inconsistent with rules 23 and 26 of the act of Congress. Rule 5 provides that in case a steamer desires to pass another going in the same direction on said river, at a point where passing is permitted by the rules, the pilot of the steamer astern shall, if he intends to pass the steamer ahead on the left or port side, indicate such intention by giving two short blasts of the steam whistle; that thereupon the pilot of the steamer ahead shall immediately answer by giving the same signal, unless he does not think it safe for the steamer astern to attempt to pass at that point, when he shall immediately signify the same by giving several short and rapid blasts of the steam whistle; and that under no circumstances shall the steamer astern attempt to pass the steamer ahead until the vessels have reached a point where it can be safely done,
It is entirely plain that the North Star was in fault for the collision. She was at the time of the collision, and had been for a considerable distance, maintaining an unlawful rate of speed, and the collision occurred when she was attempting to pass the Siemens at a place where it was unlawful for her to do so. These infractions contributed directly to the disaster. These violations of the rules would suffice to charge her with contributory fault; but they are not the only ones of which she was guilty. She was attempting to pass the Siemens, not only ■without an assenting signal from the latter, but in defiance of dissenting signals. If the master of the North Star put a wrong interpretation upon the signals of the Siemens, he was without legal justification in doing so, as the language of the signal rule is plain, and he was bound to know the rule.
Irrespective of the positive rules of navigation, the conduct of the master of the North Star was not only imprudent, but was rash in the extreme. There was ample width and depth of the channel in the river to permit the North Star to overtake and pass the Siemens and her tow between the government pier and the crib lighthouse, and the North Star would have been justified in attempting to do so between these two points, if the relative speed of the vessels, without exceeding the lawful limit, would have rendered it practicable. She would also have been justified in persisting in the attempt, notwithstanding she had not obtained' any assent to her first signal. It is not the meaning of rulé 5 to forbid a steamer astern invariably from passing the steamer ahead if the latter does not signify her assent and slacken speed. If the general conditions of navigation and the relative speed of the vessels are such that a steamer astern can safely pass the other, she is at liberty to do so; and she cannot be deprived of her privilege by the neglect or contumely of the steamer ahead. But, it should have been obvious to the .master of the North Star when the second signals between the vessels were exchanged, that his vessel could not overtake and pass the Siemens before the vessels would reach the crib lighthouse, if the latter insisted upon her privilege of maintaining her speed. When these signals were exchanged, the North Star had 1,100 or 1,200 feet to go before she could come abreast of the Siemens and pass her bow. During the mile which had been traveled by the vessels after the North Star had given her first signal to the Siemens, the •former had gained only a quarter of a mile upon the latter, and to overhaul and pass the Siemens before reaching the crib lighthouse, she would have to maintain a speed of at least 12 miles an hour over the ground. Notwithstanding the dissenting signal, however, the master of the North Star persisted in the attempt, although he observed ■that the Siemens had not reduced her speed. He knew, or was bound to know, that the vessels would have to make a sharp turn to starboard to enter the cut, and that necessarily the Siemens would have to begin her preparatory movement several hundred feet above the entrance to ensure the proper turning of her tow; that any attempt by his own vessel to pass the Siemens while the latter was rounding
The question whether the Siemens was also in fault for the collision depends in part upon the meaning to be given to rule 5. This rule imposes upon the steamer ahead the duty of co-operating with the vessel astern when the vessels have reached a point where they can pass safely. It is not its'meaning that the vessel ahead shall give an assenting signal and slacken to a slow speed whenever requested to do so by a vessel astern provided there is room for the latter to pass safely; for if this were the requirement, it would be inconsistent with rules 20 and 22 of the act of Congress. Those rules, which But express the law of navigation that everywhere obtains, recognize the privilege of the vessel ahead to maintain her speed, and the duty of the vessel astern to keep out of the way, until the vessel astern has overtaken the vessel ahead. All rules of navigation are qualified by the fundamental one that in obeying them due regard must be had to any special circumstances rendering a departure from them necessary to avoid immediate danger; and it is the contemplation of rule o that when the vessel ahead has been overtaken, and the overtaking vessel is about to pass ahead, the immediate danger which then arises requires that the former shall forego her privilege, and so govern her movements as to assist in avoiding it. Then it is, and not before, that rule 5 means that the vessel ahead, after signifying her willingness by signals, should “slacken to a slow rate of speed.”
Thus interpreting the rule, we think the Siemens was not in fault for her failure to give an assenting signal to the first signal from the North Star. Even had it been her duty by the rule to give an answering signal, we agree with the court below that her fault would have been in no sense a fault which contributed to the collision, because subsequently, when she responded with a dissenting signal to the second signal of the North Star, there was ample time and room for the North Star to desist without risk from her attempt to overtake the Siemens. If the master of the Siemens heard the first signal of the North Star, his refusal to consent to the proposition to pass was flagrantly selfish, as it would have entailed only a trifling delay to his vessel, as there was ample opportunity for the North Star to pass his vessel before reaching the crib lighthouse, and if the Siemens entered the cut before the North Star the latter would be subjected to a very considerable delay in reaching Eake Huron. He claims, ho-w-
When the second signals were exchanged the situation had materially changed. The vessels had reached a place where the attempt of the North Star to pass could not be accomplished without a chance that it would interfere with the preparatory movements -of the Siemens to enter the cut, and thereb}’’ involve some degree of. risk to her tow. He was aware that the North Star could not pass the Siemens before reaching the crib lighthouse without exceeding a lawful rate of speed, unless the speed of the Siemens should be reduced to a degree which might possibly be hazardous to the tow.
He ought not to be criticised for refusing to consent to a violation of the law, nor. for exercising extreme caution. When the third signal of the North Star was given the situation of the vessels was such that the attempt to pass could only be accomplished at serious risk to the tow, and every consideration of prudence forbade the master of the Siemens from consenting and slackening the speed of his vessel.
We have examined the proofs with care to ascertain whether it can be safely found that the Siemens was guilty of any attempt to thwart the movements of the North Star at or after the time, when the former commenced her preparatory movements to enter the cut; and do not think they justify such a conclusion. She was required to begin to change her course several hundred feet above the entrance to the cut, and alter it to starboard four or five points to enter the cut and get straightened down the channel and enable her tow to do so, and in view of her size and the size of her tow, and the length of the hawser to the tow, this movement could hardly be accomplished except by swinging into the cut at or near mid-channel.
We conclude that the court below properly found that the Siemens was free from fault.
Of the award of over $30,000 for the libelant’s damages caused by the collision, $12,036 consists of demurrage, the loss-alleged to have been occasioned to the libelant by the detention of the Siemans and the Holley. It is insisted for the appellant that the commissioner, to whom it was referred to ascertain and report the damages consequent upon the collision, properly refused to allow this item, and that the court below erred in overruling that part of his report.
The collision took place November 28th, and resulted in the stranding of the two vessels, the necessity for temporary repairs to complete their voyage to Conneaut, their port of destination on Hake Erie, and repairs at Horaine, the nearest port at which the further necessary repairs could be made. Had the voyage not been interrupted by the collision, the vessels would have reached their port of destination, and could have been unloaded and ready to start on another voyage by the afternoon of December 2d. As it was, they were prevented from making another voyage during the season of navigation upon the lakes. The season of navigation was,, by the understanding of vessel owners and underwriters, to close December 10th, but, as the ice did not block St. Mary’s Canal at that date, some vessels passed through as late as December 17th.
“That demurrage will only be allowed when profits have actually been, or may be reasonably supposed to have been lost, and the amount of such profits is proven with reasonable certainty.”
When a vessel is employed at the time of the collision!; or when it appears that she would have been beneficially employed during the period of her detention, it is entirely clear that actual loss has attended the interruption of her engagements. The Margaret J. Sanford (C. C.) 37 Fed. 148. Her owner is entitled to full indemnity. In other words, he is entitled to compensation measured by his actual loss, including, not only his direct loss, but any consequential loss he may have sustained by deprivation of profit. But his consequential loss cannot exceed that which he actually sustained. In ascertaining whether earnings have been lost by the owner, the inquiry is not whether they could possibly have been made by the use of the vessel during the period for which he has been deprived of her use, but is whether they would have been made. As it cannot be proved that they would have been certainly made, except when the vessel has a pending engagement for her profitable use during the period of detention, it suffices if the fact is proved circumstantially and with a reasonable degree of certainty. The inquiry is determined by the same rules of law which obtain when the owner of any other kind of property seeks compensation for the profits lost by the wrongful interruption of its use. The Baltimore, 8 Wall. 377, 385, 19 L. Ed. 463. It is not necessary for him to show by direct evidence that he would have employed his vessel or his property during the period in such a way that earnings would have accrued to him. In many cases this would necessitate proving his intention at the time, and this might be impossible. It suffices if he shows a state of facts from which a court or jury can find that there was an opportunity for him to do so, and that he would probably have availed himself of it. But if it appears affirmatively, or if the reasonable inference from the facts established is that there was no opportunity or that he would have rejected the opportunity, if offered, it is impossible for a court or jury to find legitimately that he has sustained actual loss.
In the present case, the facts were these: The Siemens and the Holley were vessels of a fleet owned by the libelant, engaged in voyages from ports on Eake Erie to ports on Eake Superior. The fleet consisted of. 24 vessels, 12 being steamers, and 12 being barges. Customarily each steamer was despatched with a barge, in tow, but no regular to.wage
It follows that the commissioner’s report, as to the item disallowed, was erroneously overruled by the District Judge.
The decree is modified, with costs to the appellant, and with _ instructions to the court below to decree conformably with this opinion.