100 F. 667 | D. Mass. | 1900
This was a suit brought to recover damages caused to the sidewheel harbor steamer Mayflower, plying between Boston and Nantasket, by a collision in Boston Harbor with the iron screw steamship Yarmouth, plying between Boston and Yar-mouth, Nova Scotia. The collision occurred August 22, 1899. At the place of collision there Avas a thick fog. In some other parts of the harbor there Avas little more than a haze. The weather Avas other-Avise pleasant; the wind very light from the eastward; the hour between 2:25 and 2:40 p. m.; the tide about half ebb. The Mayflower had left Pemberton on her way to Boston. Nine minutes after pass
1. Failure to observe article 25 of the new inland rules, by the Yar-mouth’s keeping wholly upon the port side of the channel, instead of upon the starboard side, as' required by the article. President Roads and its approaches are, I think, a “narrow channel,” within the meaning of the rules. The claimant contends that article 25 is not intended to apply in a fog, but only where objects can easily be distinguished for a considerable distance. He urges that a compliance with the rule is practically impossible in a fog, because then the position of a vessel cannot be known at every moment with entire accuracy, but she is compelled to take the best course she can, irrespective of the imaginary line of the “mid channel.” The article requires steain vessels to keep on the starboard side of a narrow channel “when it is safe and practicable.” Doubtless it may occasionally be unsafe and may often be impracticable to keep with accuracy on the starboard side' of a narrow channel in a thick fog or in thick darkness, and 80> a deviation from the starboard side which would be blameworthy in open daylight may be excusable in fog or darkness, but the article is not to be limited strictly to clear daylight. So far as is safe and practicable under all the circumstances, a steam vessel must always keep herself on the starboard side of “a narrow channel.” Steamship Co. v. Smith, 20 C. C. A. 419, 74 Fed. 261; The Vanderbilt, 6 Wall. 225, 229, 18 L. Ed. 823. in this case not only was the Yarmouth’s course far upon the port side of the channel, but she made not the. slightest effort to avoid that course. A reporter who talked with her captain two days after the collision testified that the captain informed him that he had tried to keep on the starboard side of the channel; but the captain made no such statement in his evidence, and I am forced to conclude either that the reporter misunderstood the captain, or that the captain’s statement was incorrect when made. There was nothing in the circumstances of the case or in the situation to exonerate the Yarmouth from attempting to comply with the literal meaning of the article, and, as no attempt was made, I must find her at fault for disobeying the rule.
3. Failure to maintain a proper and sufficient lookout: The Yar-mouth had two seamen stationed close to her stem, — one on the starboard and one on the port side. Twenty feet astern of them,
4. Failure to sound a proper and sufficient fog whistle: That the fog whistle of the Yarmouth was regularly blown is testified to by all on board, — crew and passengers alike, — and I have no doubt that this was done. It has been urged that there is evidence to show that the fog whistle was insufficient, but this seems to me so unlikely, and the evidence in support of the 'contention so weak, that, although the whistle may not have been specifically distinguished, either by those on the Mayflower or by those on the anchored steamer Sagamore, until the three whistles were blown upon it, yet I am unable to find the Yarmouth to blame in this respect. Not improbably, the Mayflower’s mate did hear the Yar-mouth’s whistle some time before the latter appeared, but did not report.it. ”
5. Failure to keep clear of the Mayflower, and to pass her port to port: I doubt if article 18, rule 1, applies in this case. When a vessel in a fog, proceeding properly in other respects, hears a whistle slightly on either bow, it is not clear that the wheel should at once be put to port, as the whistle may proceed from a vessel going in any direction. So far as the fault charged in this head differs from that charged in the second head, I am inclined to think that the Yarmouth is not to blame, and she was not to blame for giving a reversing instead of a passing signal at the last moment.
Having thus found the Yarmouth at fault for the collision, it remains to consider if the fault of the Mayflower contributed thereto. The only fault stated in the answer, and that principally urged in the argument, is excessive speed. According to the testimony of those on the Mayflower, she was proceeding at what was designated by her captain and pilot as “half speed.” Various estimates of this speed were given by those on board her, and by other persons who were familiar with her movements; but it is unnecessary to consider these estimates, or those made from the Yarmouth and the Sagamore, because there is testimony establishing with sufficient accuracy wliat was her rate of speed on the day of the collision, and barely a minute before it. She was 9 minutes, precisely, in traversing the distance between Nix Mate bell buoy and the steamer Sagamore. The position of the Sagamore is determined by an observation made by those on board of her in the late afternoon of the same day. The Sagamore was'tlien swinging to a flood tide, and the position of her bridge had been brought by the change of tide about 750 feet further from Nix Mate; than at the time of the collision. Making allowance for this swing, the Sagamore lay at the time of the collision fully 1-J- miles from Nix
"As rosan Is danger to vessels at anclior, the speed of the other ship over the ground, and not through tlie water, Is that which must be considered, and in such cases Hie strength and direction of the tide must be taken into account. As regareis danger to vessels under way, the tide is immaterial.”
That is to say, it is the duty of a vessel to proceed in a fog at a moderate speed, both with respect to moving and to anchored vessels. That she is proceeding at a moderate rate of speed over the ground will not free her from blame, if, 'proceeding immoderately through the water, she strikes a vessel under way. That she is proceeding moderately through the water will not excuse her, if, proceeding immoderately over the ground, she strikes a vessel properly anchored. Speaking generally, speed through the water is the more important consideration. This affects more closely her maneuvering ¡lower, and under ordinary circumstances is more easily determined than-the rate over .the ground. In the case of a steam vessel, the former can be known with considerable accuracy by counting the revolutions of the engine or by the log; the latter often knowm only by an allowance for the tide, which cannot easily be made. The object of requiring a vessel to proceed slow'ly in a fog is to enable her to avoid other objects. These objects to be avoided are oftener moving than stationary, and, as a rule, stationary objects are more easily avoided. Extreme cases of very swift tide can be put, in which the ordinary requirement concerning speed must be modified, and this is to be expected; for the
It was urged with great force that the Mayflower was able to stop in not less than her own length when proceeding at this speed, and, hence, as the Yarmouth was recognizable 1-| or 2 lengths away, that the Mayflower had complied with the rule. Some of this testimony was of weight, but I am not satisfied that the Mayflower was stopped at the time of the collision. Doubtless her rate of speed was low, and also that of the Yarmouth, — a fact proved by the slightness of the shock, as testified to by all on both vessels. The rapidity with wrhich the two vessels separated proves that the engines of both were reversed at the time of collision; but I rather think that the Mayflower was then proceeding ahead at a low rate of speed, — say, 2 or 3 knots an hour; probably not quite so fast as the Yarmouth, though this is not clear. Immediately before the collision the Mayflower was proceeding át a rate of speed never held to be allowable in like case, and, if this be so, she certainly cannot be permitted to maintain her faultlessness unless she shows clearly that this rate of speed, apparently excessive, could not have contributed in any way to the collision. I do not think that this has been established. Indeed, the evidence indicates to me that her excessive rate of speed did contribute to the collision, and I find her to blame in this respect. Again, the mate of the Mayflower, who was on the lookout, heard a whistle ahead of him a little while before the collision. It is not certain that this came from the Yar-mouth. Probably it did, and, in any case, to continue at an 8 or 9 knot speed after hearing it, was in flagrant defiance of the rules. See article 16. It is immaterial whether the captain heard the whistle or not. If the mate failed to report it, the captain’s failure to hear it does not excuse the vessel. That those on the Sagamore did not hear it, or did not distinguish it among the many other blasts heard, proves nothing. The result is that both vessels contributed to the collision, and there must be a decree for the libel-ant for half the damage sustained.