34 F. 71 | S.D.N.Y. | 1888
On the 8th of May, 1887, the steamer Martello of the Wilson line, 370 feet long, and 2,439 net tons, bound from Now York to Hull, came into collision, a little before 8 o’clock in the morning, a a few miles outside of Sandy Hook, with the barkentine F. A.Willey, bound from Pensacola into the harbor of New York. At the time of the collision, a thick fog prevailed. The wind was about east by north, and the barkentine headed north, on lier starboard tack. The steamer was heading E. S. E., and struck the barkentine on her port bow, crushing in her timbers, and bringing up against the keel and bowsprit,
It is impossible to hold the collision in this case the result of inevitable accident. The circumstances are not sufficient to show that it could not have been avoided by the use of reasonable prudence, diligence, and nautical skill. The Morning Light, 2 Wall. 550, 558. The case is, however, somewhat peculiar, in that both vessels were going at a comparatively low rate of speed; less than has usually, in cases of collision in a fog, been found to have been the speed of one or the other of the vessels. Each side accordingly claims that the speed of its own vessel was within the limit required by the rules of navigation; and each, no doubt, in this respect, makes a somewhat close case. Upon repeated consideration, however, I am satisfied that neither vessel discharged her whole duty in this respect, having reference to the special circumstances of the situation. The speed of the Martello is to be deduced partly from the direct testimony, and partly from the distance run, and the time that elapsed after discharging the pilot a little to the westward of the perch and ball buoy until the collision. On this subject there is a great amount of testimony; and in the latter stages of the cause an endeavor was made on the part of the steamer to weaken the force of the previous evidence of her officers, and of the entries in the engineer’s log, as well as the private entries of Maider, the second engineer. There is nothing that I can find, however, in this later evidence, that deserves any greater confidence than the testimony previously given, and the entries referred to, which are verified with perfect clearness and positiveness by the witness who made them at the time. The case, on the part of the steamer, is, in many respects — such as the alleged errors of the log, the alleged dead slow speed, the need of keeping steerage-way, and her being nearly stopped at the collision — similar to that of The Dordogne., 10 Prob. Div. 6, in which the steamer was held liable. In that case, however, there were some circumstances favorable to the steamer that are not found here. Without discussing the details of the evidence, the most reliable testimony, including that of the master, satisfies me that the pilot was discharged at least half a mile to the westward of the perch and ball buoy, i. e., about north from the black buoy No. 1; that the engine was stopped at 7:08 a. m., for the purpose of slowing • the vessel until the pilot could be discharged; that the pilot left, and the engines were again moved slow ahead, at 7:10; that the place of collision, best fixed by the pilot Wolff, was one and three-fourths miles from N. to N. N. E., — say about N. by E. from Sandy Hook light-ship, —and upwards of four knots from the point where the pilot was discharged; that at 7:50 — 40 minutes after the pilot was discharged — the engines were ordered full speed astern, when the barken tine was first
In the thick fog that prevailed, and in*the expectation of vessels approaching New York harbor, which ought to have been anticipated, it was the further duty of the steamer to stop her engines at once when the fog-horn of the Willey was first heard off her starboard bow. From the direction of the wind it was to be inferred that the sailing vessel whose horn was heard was probably crossing the steamer’s course. It was plain that the horn could not be far off. Until the position and course of the vessel whose fog-horn was heard near were definitely known, it was incumbent on the steamer to stop her engines, and to do so at once. The Lepanto, 21 Fed. Rep. 651, 659; The George D. Fisher, 21 How. 1, 6; The City of Atlanta, 26 Fed. Rep. 461, 462, and cases there cited; The Ebor, 11 Prob. Div. 25; The Frankland, L. R. 4 P. C. 529, 533, 534; The Dordogne, 10 Prob. Div. 6. In the case of The Ebor, the steamer, though going at the rate of from three to three and a half knots only, was held in fault because she did not stop at once on hearing the first signal from the other vessel. Acqording to the testimony of the witnesses for the Martello, the time was doubtless quite short between hearing the first horn from the Willey and her coming into view. But it is evident that there was some interval. Tho lookout of the Martello in the crow’s nest, and one of the men on the forecastle estimate it at least one minute. The master, and the first mate who was on the forecastle, both heard the horn; but it is clear that the orders “hard a-port,” and “reverse the engine,” were not given until after the mate had seen the Willey on the starboard bow, and ordered hard a-port. Both were asked what they did upon hearing the horn; and the answer is only as to what was done after the Willey was seen, when the mate’s order was given immediately. In another place the mate says: “I sung out the fog-horn first; and, as she came in sight, I sung out, ‘hard a-port.’” All these circumstances point to a very appreciable interval after,the fog-horn was heard near and “nearly ahead,' as one of the witnesses says, and before the order to stop was given. It
It was a fault in the Willey that, after 'hearing the steamer’s several whistles coming nearer, she did not even then take anj>- steps to check her speed or do anything to avoid collision. In the case of The Zadok, 9 Prob. Div. 117, Sir James Hannen says:
“Though the whistle of the Iduna was heard once, and twice, and thrice, yet no precaution whatever was taken on hoard the Zadok to guard against a contingency which she was warned might happen of a steamer being in a position which required caution. I am advised that what ought to have been done was this: that men should have been stationed so as to work on the braces, and put the foresail aback, by letting them fly; they would come at once aback, and would tend tp throw off the ship’s head, by putting the helm to starboard; and, when the vessel was seen, * * * there would have been time for them to effectuate that maneuver, which might have had the effect of avoiding the collision altogether. Instead of that, no preparation was made to do anything on board the Zadok. Those on board seem to have thought that she, being a sailing vessel, and the other being a steamer, the former had a right to keep her course, and do nothing. That is not the view I take, nor the view which I am advised should be taken.”
. These observations are in the main applicable to the present case; and' as respects the right of the sail-vessel to hold her course, as against a
“Where, as in the present ease, they are brought suddenly and unexpectedly close to each other, and the ordinary rules of navigation will not prevent a collision, it is the duty of each to act according to the emergency, and to take any measure that will be most likely to attain the object.”
The master states that he would have ported his helm, and could have avoided this collision, if the steamer had given him their signal whistles to indicate that she was backing; and it is charged as a fault against the steamer that she did not give these signals. But, as article 19 of the new regulations expressly declares that the “use of these signals is optional,” it is not in itself, independently considered, a fault that they were not given. Notwithstanding the fact, however, that the signals are made optional, when their great utility in promoting a mutual understanding between a steamer and a sailing vessel comes to be better understood, it may then be a legal duty on the part of the steamer, as one of the obligations of reasonable prudence, to give those signals, whenever the situation is such that the steamer cannot alone avoid collision, and when the steamer knows, or ought to know, that the other vessel, guided by such signals, but not without them, might safely change her course so as to avoid disaster. I, do not need to pass on that question now.- In the situation of these two vessels, the master of the Willey, without knowing whether the steamer intended to go ahead of him or astern, or even whether she had reversed her engines, (in which latter case the steamer could not materially change her course,) could not prudently change his own course in time to he of any service. I cannot, therefore, hold the Willey in fault on that ground. The cases in which steamers fail to hear the fog-horns of sailing vessels until quite near are too frequent to warrant the inference that the horn was not properly blown, because not sooner heard. For the Willey’s speed, however, in that situation, and for her failure to attempt to check it after the approaching whistles of the steamer were several times heard near in the thick fog, I must hold her to blame; and the damages and costs must, therefore, in both eases be divided.