107 F. 533 | 2d Cir. | 1901
The accident happened about 10 a. in., August 24, 1899. The Sewell, with the Viking in tow on a hawser of about 40 fathoms, was going up the East river, on a flood tide, near the middle of the channel on the west side of Blackwell’s Island, hound through Hell Cate. When she reached Eighty-Second street the Sewell sounded the long, bend-warning signal for Horn’s Hook, which is at the foot of Eighty-Ninth street. No answer was received to it. When about off Eighty-Fourth street the steam tug R. S. Carter, with a schooner in tow on a hawser of 25 fathoms, was seen south of Mill Rock and in the Cate going towards Astoria, heading for 1he east channel (i. e. the channel to the east of Blackwell’s Island). The Carter blew two whistles to the Sewell, to which the latter replied with two. When about abreast of Eighty-Sixth street, still in the middle of the channel, the captain of the Sewell noticed the hows of two car floats coming out of Horn’s Hook, lashed to Transfer No. 9. He at once blew her one whistle, to which she replied with one. While running thus through tin-west channel, the Sewell had overtaken another flotilla, consisting of the steam tug Harlem River No. 2 with a coal boat in tow on
From the above statement it is self-evident that, except for Harlem River No. 2, the other boats would have dealt with the situation easily and safely. Had No. 9 stayed where she was when she stopped her engines, or moved out only far enough to avoid the effect of tide and eddy, the Sewell and the Viking would have passed with a broad margin of safety. A situation of safety was turned into a situation of peril when an agreement was made which necessitated the reduction of that margin. As the proposer of that agreement, Harlem River No. 2 was primarily in fault, and, were it included in this suit, should be held liable. Its master was aware of the exact situation, he had heard the exchange of signals which called upon the Sewell to proceed across the bows of No. 9, and he should have waited where he was, stopped, or backed, until the Viking had passed No. 9, before insisting that No. 9 should move out nearer to the line of the tug and schooner. No. 2 was the privileged vessel, ordinarily entitled to pass No. 9 under its stern, and to require its co-operation to such navigation; but the Sewell was also privileged, and had already availed of its privilege to lay out a plan of navigation which it was improper for No. 2 to undertake to interfere with. But No. 2 is not here, so her faults need be no further considered. The district judge held No. 9 in fault, finding that it was “unjustifiable navigation to keep near the New York shore under Horn’s Hook, obscured from view of vessels below, and where signals, though given, are often not heard, instead of coming down further out in the river, as may easily be done, where the dangers may be seen in time to avoid them.” While we concur in the conclusion that it is imprudent to keep so near the New York shore, we are not prepared to hold that it can in no case be justified, and are satisfied that on this occasion it should not be charged against No. 9 as a fault. There is no reference in the opinion to the circumstances under which she found herself so near the shore. She had about reached Ninety-Second street when she received a signal of one whistle from Transfer No. 11, a railroad tug, bound up the river with a car float on each side. No. 11 came around the Hook rather close to shore, which it seems is the usual course for that sort of flotilla on a flood tide, to avoid risk of being carried up to Flood Rock. No. 11 passed between No. 9 and Mill Rock, while at the same time a tug and schooner bound down (apparently the R. S. Carter) passed between No. 11 and Mill Rock. The captain of No. 9 stopped her engines to let No. 11 pass, because the tide would sweep the latter vessel in, and he did not wish to embarrass her. She passed within 50 feet. By that time No. 9’s headway had carried her pretty close inshore, in the belly of the cove and behind Horn’s Hook. For these reasons we are not inclined to hold No. 9 in fault for getting into that position, nor for her subsequent navigation down to the time when Harlem River No. 2 was seen, which seems to have been prudent and cautious. We are of the opinion, however, that she was clearly in fault for
It is urged that the captain of the Sewell ought to have ported strongly, to have gone further to the eastward, when he heard the exchange of signals between No. 9 and No. 2, and was thus advised what they were about to undertake. We have reached the conclusion, upon all the evidence, that she did not make any substantial change of course to the eastward, although the district judge held that she “ported some.” The evidence is overwhelming that the collision took place near the middle of the river. That fact, coupled with the unanimous testimony of all on the Viking, who were watching and in an excellent position for observing, is most persuasive. We find, however, in the presence of the Carter and her tow, a sufficient excuse for the Sewell’s holding her course. Porting strongly might have brought about another collision. It is contended that the Sewell was in actual violation of a statutory rule (article 25 of the act of June 7, 1897) which provides that “in narrow channels every steam-vessel shall when it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel.” This is apparently raised here for the first time, it is not charged as a fault in any of the pleadings. But conceding even that, before the collision, the Sewell was a short distance to the westward of where article 25 required her to be, she was on the proper side of mid-channel when collision took place, and the presence and maneuvers of the Carter would have interfered with her being at that time further to the eastward had she been originally where article 25-- required. Her fault of prior navigation, therefore, assuming that article 25 applied, was remote, and not contributory to the collision.
The decree of the district court is affirmed, with interest and costs to libelants against Transfer No. 9, and costs to the Sewell against the Viking.