128 F. 133 | S.D.N.Y. | 1904
This libel was filed to recover damages caused by a collision between two steamers, the Sicilian Prince and the Jefferson, which occurred on April 2, 1903, in the Upper Bay of New York, about opposite the Erie Basin. The Sicilian Prince had been anchored that afternoon on the west side of the bay, just below the Statue of Liberty. The tide was ebb, so that, while at anchor, she lay headed in a northerly direction. She weighed anchor, and started to go to sea, and in order to do so was obliged to turn completely around. She went from her anchorage across to’ the east side of the channel under a port helm, without succeeding in turning down the
The evidence establishes, in my opinion, that the Jefferson approached the Sicilian Prince from a direction which was in fact more than two points abaft the beam of the Sicilian Prince, and that, even’ upon the view of the evidence most favorable to the Jefferson, it was certainty a matter not free from doubt whether the direction was not more than two points abaft the beam of the Sicilian Prince; and that the place of the collision was near the easterly side of the channel, about 200 or 30b yards northerly or northwesterly from Buoy 14. In my • opinion, therefore, the Jefferson was in fault, for the reason that, being án overtaking vessel, she did not keep out of the way of the Sicilian Prince, as required by rule 24; for the reason that she did not keep to■■ thát -side of midchannel which lay on her starboard side, as required by rule 25; and for the reason that if, as alleged bjr the witnesses for thc Sicilian Prince, the Jefferson was sufficiently behind the El Paso so; that she was free to port and pass to the right under her stern, she did not do so; - and, on the other hand, if, as alleged by the witnesses
The extraordinary theory asserted by the cap Lain of the Jefferson in his testimony that, as the Sicilian Prince was going astern, her stern was to be deemed her bow, and she was bound to keep out of the way under the starboard-hand rule, while the Jefferson had the right of way, and was bound to keep her course and speed, is, in my opinion, entirely untenable. The sole test under rule 24, as to what is an overtaking vessel, is whether she is coming up with another vessel from a direction more than two points abaft her beam; and, in my opinion, the question whether the overtaken vessel is going ahead or astern is immaterial on the question whether another vessel is an overtaking vessel. Any steam vessel under way, whose engines are going at full speed astern, is required by rule 28 to indicate that fact by three short blasts on the whistle; and the neglect of an overtaken vessel, going astern, to give such a signal might be sufficient, under all the circumstances of a case, to exonerate an overtaking vessel for a collision. But the presumption in all cases is that a vessel which overtakes an-' other and comes in collision with it is in fault.
The question whether the Sicilian Prince should also be held to' have been in fault is one upon which I have felt much doubt. The faults of the Jefferson, in my opinion, were clear; and it is undoubtedly the general rule that, if one vessel is plainly in fault, any reasonable doubt as to the contributory faults charged against the other vessel should be resolved in her favor. The Victory, 168 U. S. 423, 18 Sup. Ct. 149, 42 L. Ed. 519, and cases cited. But upon full consideration I think that the Sicilian Prince committed faults too serious to be overlooked. She was backing across the main channel of a crowded harbor.- She saw the El Paso and the Jefferson coming down the harbor, a long distance away. All of the witnesses say half a mile or more; several put it at three-quarters of a mile or a mile; and Braun, the pilot, an unusually competent observer, puts the position of the Jefferson at a mile and a half away when he first noticed the vessels coming, and a mile away when the three blasts of the whistle were sounded. The Sicilian Prince had previously started astern at full speed, and had been going astern at full speed two or three minutes. After souilding the signal that she was going astern, her engines were stopped. The only apparent reason for stopping was to avoid the danger of a collision with the two approaching steamers. The witnesses bn the Sicilian Prince testify that when the collision occurred the engines had
The records, of the logs of the Sicilian Prince are unsatisfactory. The meager entry in the chief officer’s log has been already quoted. The chief engineer’s l'og and the engineer’s scrap log, in its present condition, contain no entries about the collision. The scrap log shows that a leaf has been cut out between the pages containing entries of March 30th and of April 3d, and no explanation is given why or how this page was removed. The meagerness of the entry in the chief officer’s log, the absence of any entry in the engineer’s log, and the removal of the leaf in the scrap log all seem to me to have been intentional. It is the universál custom of all vessels to keep a log, and the statutes-of the United States require them to' do so. This requirement is not fulfilled by having a book called a" log, in which no entries are made, or in which the entries which are made are intentionally meager,
My conclusion is that both the Jefferson and the Sicilian Prince were in fault, and that, therefore, there should be a decree in favor of the libelant and against the Sicilian Prince for half the damages suffered by the Jefferson, with a reference to ascertain the amount.