181 F. 256 | W.D.N.Y. | 1910
These are libels filed in personam by the administratrices of Frank M. Trauffler, deceased, and William A. McClure, deceased, against the Detroit & Cleveland Navigation Company, a corporation of the state, of Michigan, and owner of the steamer Western States, and the Hand & Johnson Tug Line, a corporation of the st^ite of New York, and owner of the steam tug Princeton, and by 'the administrator of Raymond E. Norbury, against the Detroit & Cleveland Navigation Company alone. The actions arose out of the same subject-matter and were tried together; it being agreed by the parties that the evidence taken so far as applicable should be considered in each case. The libelants demanded trial by jury under section 566 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 461), and thereupon petitions for limitation of liability were filed by claimants under admiralty rule 54, which it was contended prevented such trial by jury, but, before this question was ruled upon, the said demand was withdrawn and the hearing had before the court.
The material facts show that in the daytime on May 24, 1909, a collision occurred in Buffalo river near the South Pier, within the limits of the city of Buffalo, between the steam tug Princeton and the large passenger steamer Western States, in consequence of which Trauffler and McClure, engineer and fireman, respectively, of the tug, and Norbury, who was aboard the tug without the knowledge of her owner or master, were drowned, and the steam tug sunk. The libels charge joint liability, in that both vessels were negligently navigated, the steamer for proceeding at a rate of speed prohibited by the United States statutes prescribing a rate of speed in Buffalo river not exceeding six miles an hour and for violating the ordinances of the city of Buffalo limiting her speed to three miles an hour, and the tug for navigating in too close proximity to the steamer. The answer interposed by the Western States denies negligence on her part, and alleges that the Princeton negligently sheered across her bow which alone was the cause of the collision. The Western States is a side-wheel steamer, 366 feet over all, and 89 feet wide from the extremities of her paddles and paddle boxes. At the time of the collision, she was on her return trip from Detroit to Buffalo, and bound for her pier about one-half mile from the entrance to the river. It was her custom to be towed to her berth by a tug belonging; to the'Hand & Johnson Tug Line from a point opposite the South Pier near the entrance to the channel or river. The Princeton was 70 feet long, and had a crew, of four, consisting of master, engineer, fireman, and deck hand. On the morning in question her master navigated the tug to a customary position on the South Pier to await- the approach of the Western States,' intending to take her bow line when she came alongside. When the steamer rounded the ■ outer ..breakwater about. 2,4JJ0 Yeet. from the point where, he was -.waiting,.
The Nicholson log, a patented contrivance for recording the speed and movements of vessels on a chart, was received in evidence, and indicates on its face by red lines that the vessel’s speed was approximately five miles an hour. If the Nicholson log was properly adjusted and operative at the time of the collision, its showing would undoubtedly be decisive, and the rejection of the contra oral testimony would be imperatively required. But such a conclusion would necessarily depend upon the credibility of the testimony that the chart correctly scheduled the rate of speed, that the instrument was operative, properly adjusted, and in actual use. But, however useful the device, its probative value is weakened by the fact that it concededly fails "to accurately show when the stoppage of the steamer occurred. Mr. Nicholson on this point substantially testified that, “if a boat came to a sudden stop, the line would keep on going down until it got to zero.” If the vessel had stopped at a speed of seven or eight miles an hour, the only indication would have been that the pointer would have continued to go down, and, “if the steamer had stopped at five or eight or ten miles an hour, theoretically there is a difference in the line, but practically you cannot see it. You wouldn’t notice it.” I am left unpersuaded as to the corroborative value of the log in question, and have therefore disregarded it.
There áre, it is true, discrepancies in the affirmative showing as to the speed of the steamer, and as to the asserted collision between her and the tug before she rolled to port, but such discrepancies aré not of a substantial nature. It substantially appears by a preponderance of the evidence that the Western States was navigated at a rate of speed approximating eight miles an hour; that she violated the United States statute which forbids navigation in the entrance channel of Buffalo river between tlie United States breakwater light station and the junction of the Buffalo river with the City Ship Canal at a greater rate of speed than six miles an hour. And, moreover, because of her excessive speed, it is not improbable that she ran into the Princeton, to whom she had thrown a tow line, causing her to sink and the decedents to drown.
But the steamer was not solely to blame. The facts and circumstances also show that the master of the tug was delinquent, and that he negligently navigated the trig. The fault of both vessels was the proximate cause of the accident, and each contributed thereto in such a manner that, if it had not been for their joint concurrent negligence, there would have been no collision or drownage. The Princeton was bound to keep out of the way of the steamer which she contracted to tow to her berth. It was negligence to take the heaving line at the speed the steamer was navigating or to run alongside or close to her when concededly the safety of the tug was endangered. Indeed, the proofs' show that it was customary for a tug-to refuse to take the line from a steamer under headway if her speed was excessive, and to blow a signal requesting her to reduce her headway. This rule or custom was not obeyed by the tug. According to her master, both ves
As to the law of the cases, proctors for the Western States contend that, if the court holds both the steamer and tug in fault, there can be no recovery against either claimant, and that, as the decedents were joint actors in a common enterprise, the negligence of the Princeton or her master is imputable to them. Neither of these propositions are sound. Both sides concede that the rights of recovery herein by the libelants in their representative capacity are not enforceable by the ordinary maritime rules where contributory negligence bars recovery, and that the law of the state is controlling. Robinson v. Detroit & C. Steam Nav. Co., 73 Fed. 883, 20 C. C. A. 86; The City of Norwalk (D. C.) 55 Fed. 98; The Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264, affirming In re Old Dominion S. S. Co. (D. C.) 134 Fed. 95; The Hamilton (D. C.) 139 Fed. 906; Id., 146 Fed. 724, 77 C. C. A. 150. It is well settled that joint tort-feasors are not permitted to escape responsibility against them by proving that the other wrongdoer was also in fault for the tortious act. Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652; The Hamilton, 146 Fed. 724, 77 C. C. A. 150. In The Hamilton, supra, the colliding vessels were held in fault. Various members of the crew of the Saginaw libeled the Hamilton, which contended that, as the Saginaw was negligent, the decedents were fellow servants with her master who negligently managed the vessel, and therefore the Hamilton could not be held. But the Circuit Court of Appeals, speaking by Judge Coxe in answer to this contention, said:
“Nb case with which we are familiar has gone to the extent of holding that the captain of a vessel is a fellow servant with the cook, the stewardess, and the other inferior members of the crew. A better illustration of the doctrine of alter ego can hardly be imagined. Goslee, the chief officer, was not negligent. What he did was under the direction of the master, and it would be a dangerous doctrine to hold a subordinate guilty of fault for obeying the orders of his superior. But, assuming that the rule as to the negligence of a co-servant can be invoked where the action is against another vessel, it would seem that the common-law rule that the negligence of a co-servant does not defeat the action unless such negligence is the sole cause of the disaster is also applicable. No matter how much such negligence may contribute, the defendant is not relieved if he himself be at fault.”
The language quoted may fittingly be used to answer similar contentions in this case. There is nothing in the record to prove that the engineer, Trauffler, or the fireman, McClure, were personally negligent. iTrue enough some testimony was given to the effect that the engineer sometimes increased or lessened the speed of the tug without receiving specific instructions to do so .from her master, and that he and the fireman were in a position on the tug where they could observe the speed of the steamer, yet the master was in absolute control of the
The next question relates to the liability of the Western States for the death of Norbury. It is claimed that, as he was not one of the crew of the Princeton, he was a trespasser, and had no right whatever aboard her and therefore there can be no recovery against the steamer by his representatives. It is not improbable that this question might be more effectively urged against the liability of the tug, but as to the negligence of-the Western States it is not entitled to weight. She undoubtedly owed to him the duty of careful navigation as she did to the crew of the tug, and, as it is not shown that he contributed to the injury or had anything to do with the navigation of the tug, it is difficult, in view of what has been stated hereinbefore, to see why his representatives should be denied recovery.
- Evidence was taken at the trial to enable the court to determine the ámourit of damages without reference to a master. It is shown that Trauffier was 35 years old, a widower, with four children, aged, respectively, 4, 7, 10, and 13 years, who were entirely dependent upon him for support. He was a competent tug engineer, receiving $130 per month for about eight months of the year, or the period of navigation, and about $15 per "week during the winter months. He was a man of good habits and physically sound. His children are now in the custody of their grandmother, the libelant, and cared for by her. I think the sum of $7,500 would "reasonably compensate the children for their pecuniary loss.
• The claim of the libelant for the death of McClure is allowed at $3,000. He "was 25 years old, unmarried, a fireman earning about $600' per year. He contributed to-the support of .his widqwed; mother,
The claim for the death of Norbury, which is against the Western States alone, is allowed at $2,000. He was 20 years old, unmarried, and contributed to the support of his father, who is 43 years old. His earning capacity as a fireman was about $500 or $600 per annum. He lived at home with his parents, who, however, were not dependent upon him for support.
There will be a decree for libelants, with costs, in each of the above-entitled cases, in accordance with the views hereinbefore expressed.