The Transfer No. 8, Nos. 151, 152

Nos. 151, 152 | 2d Cir. | Jul 18, 1899

LACOMBE, Circuit Judge

(after stating the facts as above). The district judge held the Waterman in fault for various acts and omissions, which need not all.be discussed, inasmuch as we arp satisfied that one of them — viz. her failure to give proper signals — was the proximate and sufficient cause of the catastrophe. The conditions of navigation at this part of the river are accurately and clearly set forth by the district judge;

“In going past Blackwell’s Island by the westerly channel, the Harlem river diverges five points to port around that point. The direct channel to 'the Sound, through Hell Gate, diverges about half a point to starboard. There is a large and constant traíñc up and down the Harlem river around the Hook, and a still larger traffic past the Hook to the eastward, so that these lines of traffic cross each other, when boats on the flood tide go down as usual to the eastward of Blackwell’s Island. The , channel between Horn’s Hook off Eighty-Ninth street and Mill Bock to the eastward, forming the north of the Harlem river, is less than 1,200 feet wide; and between Mill Bock and the flats off Ninety-Third street there is only about 600 feet of available breadth of water. Vessels coming down the Harlem river in the middle of the channel, heading, * ⅜ * as did No. 8, for the line of Avenue B., cannot be seen by vessels coming up in mid-channel below the Hook [and, we may add, cannot see the upcoming vessel] until they are so near to each other that on a strong flood tide there is not reasonable and sufficient- time and space for the observation and maneuvers necessary to avoid collision with any certainty, if signals are not exchanged before the vessels themselves are seen.”

The witnesses from Transfer No. 8 testify she gave a long blast of her whistle somewhere between Ninety-Second and Ninety-Sixth streets, and the district judge credited their testimony, although he found that this whistle was not heard by those on the Waterman. We see no reason to discredit this evidence from Transfer No. 8, and concur in the conclusion that she sounded a bend-warning whistle at the proper time. Ooncededly no such whistle was blown by the Waterman, or, indeed, by the Genesta. They did not answer the Transfer’s warning signal, because they did not hear it, and they did not sound any warning signal of their own, because they assumed that they were not under any obligation to do so, inasmuch as, although nearing a bend, where the height of the bank cut off all view of an approaching vessel, they did not intend to make any turn themselves when they reached the bend.

Inspectors’ rule No. 5 provides as follows:

“"Whenever a steamer is nearing a short bend or curve in the channel, where, from the height of the banks or other canse, a steamer approaching from the opposite direction cannot be seen for a distance of half a mile, the pilot of such steamer, when he shall have arrived within half a mile of such curve or bend, shall give a signal by one long blast of the steam whistle, which signal shall be answered by a similar blast, given by the pilot of any approaching steamer that may be within hearing. Should such signal be so answered by a steamer upon the farther side of such bend, then the usual signal for meeting and passing shall immediately be given and answered; but. if the tirst alarm signal of such pilot be not answered, he is to consider the channel clear and govern himself accordingly.”

Tins rule, literally construed, is imperative upon every steamer “nearing'’ such short bend oi* curve, whatever may be her own intention as to future navigation after she shall have reached it. It makes no difference whether she intends to curve around the bend, or to anchor off it, or just short of it, or to continue on in a straight line beyond it; if, after she has reached a point half a mile away from it, she intends to continue her movement, so as to bring herself nearer to it, she is “nearing” such bend, and the language of the rule requires her to sound the bend-warning whistle. And it seems to us that the spirit of the rule would require such an interpretation, (¡ven if the language were obscure. The signal, which gives warning tha t there is a hidden vessel nearing the bend, is manifestly designed to notify the other vessel approaching from an opposite direction, not only that if her own approach is slow she may suddenly find another vessel in her water, but also that if her own approach is swift she is likely, on passing the bend, to find herself suddenly in close proximity to another vessel. As the district judge says: “The reasons for the inspectors’ rule are almost equally applicable to vessels going on either side of the Hook;” and in our opinion the language of the rule makes the giving of a bend-warning signal by boats approaching such bend from either side imperative, no matter what may be their future course after reaching the bend. We conclude, therefore, that the Waterman was clearly in fault for not giving such signal when nearing Horn’s Hook, and are satisfied that her failure to do so was the proximate and efficient cause of the collision. By reason of her failure to give timely warning of her approach, the Transfer, incumbered with two heavy car floats, ran out of the shelter of the Hook into the full force of the flood tide, with Mill Rock to leeward, and found herself in the presence of two ascending tugs and tows on her starboard hand, avoidance of which, under the circumstance's, would prove to be a most difficult matter.

The district court held the Transfer No. 8 also in fault, because she kept so long near to the New York shore. This finding is a corollary to the conclusion of that court that the inspectors’ rule did not require a bend-warning signal from vessels approaching the bend, bound up the Sound. Of course if no such signals from them can be counted on, the vessel bound down should keep far enough out in the river'to see what perils lie ahead of her, since she is not to hear of them. But if the inspectors’ rule be obeyed, — and the Transfer was entitled to assume that it would be, — she might have held her course under the shelter of the Hook, with the assurance that when she left it she would find no approaching vessel within half a mile. Inasmuch as we hold that the rule required a bend-warning signal from the upcoming tugs, we must acquit the Transfer of fault in navigating under the assumption that there was nothing below the bend within a half a mile.

The district court further held the Transfer in fault for undertaking the dangerous maneuver of passing ahead of the Waterman and behind the G-enesta. We do not find it necessary to enter into any elaborate discussion of the navigation of the vessels after they came in sight of each other. This may not be a case for the application of the rule in extremis, but the fault of the Waterman is so glaring, and its consequences precipitated a situation involving such difficulties, that we are not inclined to be severely critical of the maneuvers by which the Transfer undertook to escape from it. We fully concur with the finding of the district judge that at this part of the river, “on a strong flood tide, there is not reasonable and sufficient time and space for the * ⅜ * maneuvers necessary to avoid collision with any certainty, if signals are not exchanged before the vessels themselves are seen.” The responsibility for this collision rests upon the vessel which, by failure to give notice of her owm approach, deprived the other of the “reasonable and sufficient time and space” which it needed properly to carry out the obligations laid upon it by the starboárd-hand rule.

The decrees of the district court are reversed, with costs to the claimant, owner of the Transfer, against the Waterman in the first suit, and against libelant in the second suit, and causes remitted, with instructions to decree in the first suit in favor of libelant against the Waterman, with interest and costs, and to dismiss the libel against Transfer Ho. 8, with costs, and in the second suit to dismiss the libel, with costs.