39 F. 505 | U.S. Circuit Court for the District of Southern New York | 1889
(after stating the findings as above.) This is an appeal from a decree of the district court, apportioning the damages resulting from a collision in a fog between the steamer Martello and the barkentine Freda A. Willey, on May 8, 1887. The colliding vessels were on crossing courses, and came together nearly at right angles, the steamer’s stem striking the barkentine between her stem and the cat-head. Both vessels were damaged, and cross-libels were filed. The location of the collision is fixed by the district judge at one and three-fourth miles N. by E. from Sandy Hook light-ship. Probably it lies somewhat further to the eastward. The soundings recorded in the Willey’s log seem to indicate that her course was—as her captain testifies—about a mile to the eastward of the light-ship. It is not, however, necessary to determine this location with precision, and the conclusion of the learned district judge on that point may be accepted here. The respective speed of the colliding vessels is the material and controlling fact in the case. Examination of the record has led to the opinion that the conclusion reached by the district judge, viz., that the steamer was moving at the rate of five and one-half to six knots, and the barkentine at the rate of four knots, an hour, is correct. It will not be profitable to enter upon a consideration of the-evidence in detail, in view of his careful and exhaustive discussion of the various items of proof which—notably in the case of the steamer— led him to that conclusion in the face of the direct testimony of her officers. Suffice it to say that the Martello’s witnesses substantially agree in giving her a uniform speed from about the time the pilot left, down to the time she reversed upon sighting the Willey. That being so, the most persuasive argument as to her rate of speed is found in a comparison of the time which elapsed with the distance traversed between those periods. If the time is taken as given in the Martello’s log, and the distance as found by the district judge, she must be given a speed of between five and one-half to six knots an hour; and, if the collision occurred further to the eastward, her speed would be even greater. At any rate, it is plain that a reversal of her engines full speed, ordered as soon as the Willey came in sight, (7.50 a. m.,) failed to overcome the forward impetus resulting from her prior rate of speed, and this failure was not promoted or assisted by any improper change of the Wil
The district judge has found the Willey in fault (1) for going at too high a rate of speed, and (2) for failing to check speed after the steamer’s whistle was heard. An effort to check speed by executing the maneuver described in the case cited (The Zadok, L. R. 9 Prob. Div. 117) would have brought about a change of course, and she was bound to keep her course under the twenty-second rule, at least until the existing situation afforded reasonable assurance that a change would prevent a collision, otherwise imminent, and would not itself tend to produce the very mishap it was intended to avoid. But the existing situation was such that the master of the Willey could not prudently change her course in time to be of any service. The district judge so held, and rightly, upon the proof. The sole question as to the Willey, then, is this: Was her speed of four knots an hour immoderate, under the existing conditions of fog, wind, and situation? None of the cases cited in the opinion or on the argument have gone to that extent. In those where the sailing vessel was going four knots an hour she was not charged with fault; in the cases where she was held in fault her speed was live knots or over. The facts in proof do not show that her speed was too great to admit of the execution of such maneuvers as the situation in which she found herself might require. Her captain was on deck, with his vessel under command. Had the steamer advised him by signal (under nineteenth rule) or otherwise that she was directing her course to starboard, he could have kept his course. Had she advised him she was directing her course to port, or that she was reversing, he could have ported his wheel, and avoided a collision. For any such indication of the steamer’s maneuvers the Willey’s master was on the watch, ready to promptly respond, and at a speed of four knots an hour a prompt response would have prevented the accident. In the absence of any such indication, however, he would not have been justified in violating the twenty-second rule by a change of course. Nor did the Willey’s speed prevent the Martello from avoiding the collision, because, had the latter been going at a lower rate of speed, had she stopped her engines when she heard the Willey’s horn, and reversed (as she did) when she sighted the barkentine, she would have stopped short of the Willey’s track, whether the barkentine was going fast or slow. Except to the extent that, if going slower, the Willey would at 7.50 a. m. have been further down the coast than the place of collision, her rate of speed cannot be said to have contributed to the collision, and should not be charged against her as faulty navigation. The district court held that the Willey “had by no means brought her speed down to the standard of good steerage-way. On the contrary, she was going at nearly full speed.” In support of this proposition there was no direct testimony below, and the uncontradicted proof in this court shows that with all her sails set she is a good, 10-knot vessel, loaded, or 12, light, in a nice set of ballast; and that at less than 4 knots she would not have steerage-way sufficient to give her
