199 F. 299 | E.D. Pa. | 1912
The owners of the schooner Eugene Cathrall filed a libel against the steam tug Philadelphia to recover damages arising from a collision between the schooner and the steam tug, alleged to have been caused by the negligence of those navigating the steam tug. The undisputed facts established by the pleadings anil testimony are as follows:
On October 28, 1910, in the daytime, the schooner Eugene Cathrall, being light, with the mate, Max Nagel, at the wheel, while beating down the Delaware river on a voyage from Philadelphia to Cape May, was on her starboard tack crossing the river from League Island, Pa., towards the Sanitarium in New Jersey; the wind being N. W. or W. N. W. and blowing a good breeze, the weather fair, the tide ebb, the schooner proceeding at a speed of about seven miles an hour under single reef mainsail, foresail, and, jib. At the same time the steam tug Philadelphia was a short distance below the Sanitarium, coming up the river with a loaded mud scow lashed to her starboard
“Between League Island & Sanitarium Wharf.
“Friday, Oct. 28, 1910.
“I, Captain L. F. Smith of the schooner E. II. Cathrell do hereby exonerate C. S. Rickards master of the tug Philadelphia from all blame and responsi*301 bility in tlie matter and cause oí the collision between the aforesaid named vessels in the Delaware river occurring at 1:45 p. m. this day between the points named on the top of this communication. L. F. Smith.
“M. Nagel, Mate.
“Witness: Hoveuden Smith.
“Sworn and subscribed before me this 28th day of October, 1910.
“Jos. H. Liveziy, Notary Public.
‘[Seal.] Commission expires end of Senate, 1911.”
The question as to the fault which caused the collision is dependent upon the testimony of the mate of the schooner, Nagel, who was the only witness to the collision on the part of the libelants, and that of the master of the tug Rickards, who was the only witness to the collision on the part of the respondent, and upon the effect of the paper referred to. The paper purports to “exonerate C. S. Rickards master of the tug Philadelphia from all blame and responsibility in the matter and cause of the collision between the aforesaid named vessels.” It was signed by vSmith after hearing Rickards’ account of the collision; and his explanation of the cause which induced him to sign it is that Rickards asked him to do so, in order to avoid losing his pilot’s license, and agreed to help him out with the expense incurred by the collision. Rickards testified that he did not make any promise as to helping with the expense of the collision, but that Smith asked him if the American Dredging Company would help out, and he replied that he did not know. Rickards obtained the paper for the purpose of using it in an expected investigation before the board of steamboat inspectors. It was intended to be used by the owner of the tug to escape liability in case of litigation; and it is apparent that the question of expense of the collision was discussed between Smith and Rickards. From the tíme Smith went on board the tug until the paper was signed, he was constantly in the company of Rickards, and was willing to sign the paper upon the statements made to him by Rickards as to the cause of the collision. As an admission of the circumstances attending the collision, it lias, in my opinion, but little weight, as Smith was not a witness to the collision; and there is nothing to show that he had learned the circumstances from Nagel, his mate, at the time lie signed the paper, except that when he went on deck after the collision Nagel said, “He pushed a scow into us when he ought to have went astern of us.” Smith was not present when Nagel signed the paper, and Nagel was induced to do so because Smith had already signed it. The circumstances of the collision are clearly shown by an analysis of the testimony of Nagel and Rickards, which are not in substantial conflict as to the relative courses and positions of the two vessels, nor as to the cause of the collision. For these reasons, I do not consider tlie paper of sufficient weight to overcome the testimony of the witnesses.
The steering and sailing rules contained in the act to adopt-regulations for preventing collisions, applicable to the case, are as follows:
“Steering and Sailing Rules.
“Preliminary — Risk of Collision.
“Risk of collision can, when circunisl anees permit, be ascertained by carefully watching the coin pass bearing of an approaching vessel. If the bearing does not appreciably change, such risk should be deemed to exist.”
*302 “Art. 20. When a steam vessel and a .sailing vessel are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sailing vessel.
“Art. 21. Where, by any of these rules, one of the two vessels is to keep out of the way, the other shall keep her course and speed.
“Art. 22. Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other.
“Art. 23. Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse.”
“Art. 27. In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary iu order to avoid immediate danger.”
The primary fact to he ascertained from the evidence is whether the tug and schooner were proceeding in such direction as to involve risk of collision.
In the case of The Milwaukee, Red. Cas. No. 9,626, it is said:
“Risk of collision begins the very moment when the two vessels have approached so near each other, and tipon such courses, that, by departure from the rules of navigation, whether’ from want of good seamanship, accident, mistake, misapprehension of signals, or otherwise, a collision might be brought about. It is true that prima facie each man has a right to assume that the other will obey the law. But this does not justify either in shutting his eyes to what the other may actually do, or in omittiDg to do what he can to avoid an accident made imminent by the acts of the other. I say the right above spoken of is prima facie merely, because it is well known that departure from the law not only may, but does, take place, and often. Risk of collision may be said to begin the moment the two -vessels have approached each other so near that a collision might be brought about by any such departure, and continues up to the moment when they have so far progressed that no such result can ensue.”
There was nothing to prevent the tug from stopping or reversing, as she had a headway of but two miles an hour, and the tide was against her. There was no approaching vessel which would have interfered with her going to port further out into the stream; and the only excuse her master offers for not changing his course to port was that he wanted to keep out of the way of commerce, and that, while there was no vessel in sight which would have interfered with his so doing, he thought there was apt to be. The only resource which he appears to have considered open to him was keeping further in towards the New Jersey shore, which he did not wish to do, as he might run aground, or would not have sufficient steerageway in shallower water.
The schooner had the right of way, and her mate had a right to rely upon the tug obeying the rules, and either stopping, reversing, or turning to port and passing under his stern, and thereby keeping out of his way. The tug was not in such a position of embarrassment as to permit an exception to the rules. The Marguerite (D. C.) 87 Fed. 953; The Oregon, 18 How. 570, 15 L. Ed. 515; Belden v. Chase, 150 U. S. 674, 14 Sup. Ct. 264, 37 L. Ed. 1218; Excelsior v. The Bruce (D. C.) 38 Fed. 271.
It- was the plain duty of the tug to keep out of the way of the schooner and to avoid crossing her bows; and the position in which the schooner was placed was through the fault of the tug in not stopping, reversing, or passing astern of the schooner by going to port. The maneuver was executed by the schooner when she was so close to the tug that there was immediate danger of collision if she kept her course and speed; and, under those conditions, if the mate made an error in judgment, it was excusable. Excelsior v. The Bruce (D. C.) 38 Fed. 271; The Sea Gull, 23 Wall. 165, 23 L. Ed. 90; The Falcon, 19 Wall. 75, 22 L. Ed. 98; The City of New York, 147 U. S. 72, 13 Sup. Ct. 211, 37 L. Ed. 84.
There was some evidence by witnesses on the part of the respondent of admissions made by the master of the schooner that the mate, Nagel, was drunk when at the wheel at the time of the collision; but there was not sufficient evidence to show that he Was in that condition, nor that it interfered in any manner with his handling the schooner. If he had been drunk, it could readily have been discovered when he came off the schooner; and, as no witness was called who observed 'that he was drunk at that time, the evidence upon this point must be disregarded.
My opinion is that the tug Philadelphia was solely in fault; and it is therefore ordered that a decree be entered in favor of the libel-ants, with costs. A commissioner will be appointed to assess the libelants’ damages.