FEDERAL REPORTER,
vol. 44.
THE EXPRESS.· THE NIAGARA. THE
N. B.
i::lTARBUCK.
THE CHARM. NEW YORK
&
CUBA MAIL S. S. CO. v. THE EXPRESS, THE STARBUCK, and THE CHARM.
NEW
ENGLAND TERMINAL CO.
v.
and
THE NIAGARA, THE THE CHARM.
STARBUCK,
{D£st·I'Wt Oourt, S. D. Nuw York. November 28, 18ll0.) COLLISION-STEAM VESSELS CROSSING-EAST RIVER NAVIGATION-WRONG SIDE-NoT SIGNALING- SWINGING COURSE.
\
The steam-boat E. was on a trial trip up the East river, running at the rate of less than eight knots, and in the middle of the river. While rounding Oorlea1"s Hook, and before she had headed straight up river for the reach above, the steam-boat N., in tow of two tugs, was seen some way ahead in about mid-river, heading somewhat towards Brooklyn. The E. two whistles to indicate that she would pass the N. on the New York side, and, getting no answer, stopped and repeated her signal, when, seeing the leading tng give a sheer towards New Yorkl the E. reverse<!t but nevertheless struck the N. on her starboard bow. The collisIOn was, on the J::Irooklyn side of mid-river. From the time she sighteJ the N. the E. had been continually swinginll" to port. The N., without steam, was in tow of the tugs S. and C., the S. ahead on a bawser, end the C. along-side the N. They had come from Ninth street, Ncw York, bound down the East river, and might have kept on the N6lw York side of the stream. The first signal of the E. was not understood by the S., though heard by many on shore. There was no satisfactory evidence of any timely signals from the tugs, arid they gave no signal of three whistles under inspector's rule 3, in order to come to a common understanding. Held, that the tugs were in, fault for the co11ision, (I) for unnecessarily going to the easterly side of the channel with the N. still headed towards the Brooklyn shore; (2) for not properly signaling, or answering the signals of the E.; (3) and for attempting to haul the N., after she was nearly across the line of the E., towards the New York shore at the time of her last signal, through probable inattention to the previous signals, and to the position and heading of the E. at the time. As to the fault of the N., question reserved.
In Admiralty. Croas-suit for damages by collision between the steambOllts Express and Niagara. Carter « Ledyard, for the Niagara. Wing, Shoudy &- Putnam, for the Express. Robert D. Benedict, for the Starbuck and the Charm. BROWN, J. The above cross-libels were filed by the owners of the steamers Niagara and Express, each about 298 feet long, to recover the damages sustained by them, respectively, through a colli,sian in the East a little before noon on December 2, 1889, just above Corlear's Hook. The steam-tugs Starbuck and Charm were made parties defendant in the original cause under the twenty-ninth rule, upon the petition of the owners of the Express. Upon the filing of the petition, the own-
lReported by Edward G. Benedict, of the New York bar.
THE EXPRESS.
.393
ers of the tugs appeared without process, as claimants, and filed a stipulation for value. The Niagara was coming down the river in tow of the two tugs, without any steam-power of her own, bound for the North river. The tide was near the last of the ebb in mid-river, running down not over a knot an hour,· while the current was already setting upwards on Loth shores. The tug Starbuck was leading, with a hawser of from 120 to 150 feet attached to the Niagara's starboard bow. The Charm was along-side the Niagara, a little aft of amid-ships on her starboard side. The Niagara had been taken from the Ninth-Street dock, New York. She came down river within 100 feet of the ends of the piers to Third or. Fourth street, when the tugs pulled sharply out inte) the river, so that when abreast of the Houston-Street ferry the Niagara headed for Havemeyer's on the Brooklyn side, at South Third or Fourth street, a change of at least three points. She proceeded to port towards mid-river, and swung gradually to the southward, so as to head for the upper part of the navyyard, or Cobb dock. The pilot of the Charm was on board the Niag.. ara, directing her navigation, in conjunction with the Niagara's captain, who Waf! also pre8ent at the wheel, and gavesome orders. When nearly abreast of the Broadway ferry, Brooklyn, and on a line running from the upper Elip of the Grand-Street ferry, New York, she was struck on the starboard bow by the starboard corner of the Express, a new squareheaded steam car-float, which had just rounded Corlear's Hook, coming from Rutgftrs streetnpon a trial trip upthe East river. On leaving gers street, the Express went out into about mid-river, and then up on the usual course. While rounding the hook, and berore she had got headed straight up river for the reach ahove, the Niagara and her tugs were seen in about mid-river, and apparently off about Stanton or Rivington street, all heading towards the Brooklyn shore, and all showing their starboard sides. The master of the Express, deeming it imprudent to attempt to pass on the Brooklyn side, soon after gave It signal of two whistles, and, getting no answer, stopped her engines, and gave a second signal of two whistles, to which no answer was received. At about the same time the Starbuck took a sheer towards the New York shore, whereupon the Express reversed strong until the collision. At the time the last signal was given the Express was pointing nearly upriver, and for the stern of the Niagara, which was probably about 300 yards diatant. The course of the Niagara was changed about a point by the sheer of the Starbuck, and by her own hard a-port helm. In behalf of the Express it is contended that the collision was caused by the Starbuck'ssheer, and the Niagara's ('hange of course, and through her improper presence on the Brooklyn tlide of the river, and inattention to the signals of the Express. On the part of the Starbuck there is some evidence that a signal of one whistle was given in answer to some signal from the Express. that was indistinctly heard by the Starbuck and not understood, and that there was one blast from the Charm when the vessels had approached very near each other. Neither of these signals were heard on the Express.
394
FEDERAl;. 8EPORTER,
the Niagara was. first. seen, probably about half a mile , From the away, the Express was always 'on swing to port until her engines were reversed. It is, undoubtedly this circumstance that has led to diversity in ,the testimony in reference to the bearings Illore than of ,the S"tarj;)uck and Niagara at different times during this swing. There is no doubt, 1 think, tbat when the Niagara was first eeen, the Express was about in. mid-river between the, marble yard and Ordnance dock, near the poiJ;lt indicated by Oapt.Bixby on the chart, heading at tbat abov,tfor the Broadway slip, (which is up-river at that point,) and filat the Niagara was tben about abreast of Rivington street, or Soutb street"Wimamsburg, heading for the northerly part of Cobb 90ck, and being then in mid-river, or, as the three Williamsburg pilots j3ay, a little on the Brooklyn side. Upon those courses the Niagara would be heading about one point towards the Brooklyn shore, and the course of would be crossing that of the Niagiua by an angle of nearly four points. The weight of evidence is that the leading tug, the WItS heading at tile time of the first sig''1al from the Express about down river, which would make her course about a point more to sul-rpoard than tha.t of ,the Niagara. !tis behalf or the lattet that this o\lght to have ,been perceh:ed by and was suffi!)ient evidence that the tugs were endeavoringtQ haul the Niagara toYork side of the river. and that 'the,Express was consewards the quently riot justified in proposing to go to the left with signal of two whistles. !a.1O not convinced of t'Je'soundness of this contention. The !llear weight of testimony, 'particularly that from disinterested witnesses, who ,had the best means of estimating, is that the collision ,took place decid.edly on the side of the riyer, nearly, if not quite. two-thirds of the dilltance across towards, the Brooklyn shore. s.orpe'two l'lnd a half or three probably pelOre the collision the Niagara was seen moving from across mid-river in that direction, nearly llalf a mile distant, at an al}gle of three or four poipts with the ht'ading pf the Express. I see no reason to doubt the truth of the testimony of t1}e witnesses that theStarbuck seemed to be moving in the same Q.irectionas the Niagara, and right. ahead of her.. : It was impossible, I think, looking sideways at l;luch an angle, to distinguish a ditference of a point in the headings half a mile away or half that distance. The Niagara being m1,lch the larger vessel, her. heading be more easily and certainly perceived. The ExpreS!! was bound to take notice, from the.Niagara's evident heading and position, either in mid-river or already on the Brooklyn side, that the Niagara might be inten.ding to go to the Brooklyn shore; and as her speed was not known, and the river above was much narrower, and so lat:ge a vessel ,1,lpon a hawEler was more or unwieldy, the Expressw"s bound to act with special caution, and nqt attempt to cross the line of the Niagllra's cour/3ein order .to pass her on the Brooklyn side, towards which sbe was dra wing, until some change in ,her course Was evident. Her mastera,J,1d ",ere. called upon.to determjne what: was most pfudent under. of uncertainty as from the to the Niagara's intentiolls; and in the absence of any
;qn
THE EXPRggS.
395
StarbUok or Niagara, signifying what their intentions were,'! think the' Express was justified in her signal of two whistles proposing to give the Niagara the easterlt shore, towards which she was moving. The Ex:.: press had a right to expect an answer, buff got none. She then stopped' her engines, and soon after repeated her former signal, and still heard no answer, thougbwatching for one, In the mean time her stem had been swinging to the northward, bringing her in the rapid narrowing of the river on the easterly shore, somewhat on the easterly side, so that at the time of the last signal, when the vessels were probably about 350 yards apart, she was pointing about for. the stern of the Niagara, and' perhaps a point towards the easterly shore above Greenpoint. In this situation there was no reason why the vessels should not have passed clear, as they plainly would have done had the Niagara kept her COUrRe, and had not the Starbuck hauled off strongly to the westward, and the Niagara put her wheel hard a-port, so as to bring her across the heading of the Express. The moment this was perceived, the EJrpress backed strong until her head-way by land was nearly or quite stopped, her head meantime swinging unavoidably somewhat to starboard, while the Ni.: agara also hauled about a point to the westward. I do not perceive any fault in the Express in these maneuvers. The collision, as it seems to me, was brought about by three limIts on the part of the tugs and the Niagara: (1) Unnecessarily going to the easterly side of the channel, and with her course still kept direoted towards' the Brooklyn shore; (2) in not signaling herself, nor properly answering the signals of the Express, aEl required by the regulations; and finaUy (3) in attempting to haul the Niagara towards the New York shore and across the course oithe Express, at the time of her last signal, evidently through inattention to the signals, the position, and the heading M the Express. From the testimony of several disinterested witnesses, nswell as of many others on board the Express, there isna doubt that thesignal whistles of the Express were clearly sounded, and ought to have been heard and heeded by the Starbuck and'Niagara. There are few stances in which the need of proper signal whistles, such as the tions expressly require, is more urgent than in a case like this, where vessels are rounrling a sharp bend in the river, and one of them is a large ship upon a hawser without illotive power of her own. The testimony of the pilot of the Starbuck in reference to his hearing and gi ving whistles seems t() me quite unsatisfactory. It is plain that there was no endeavor on his part to come to any common by signals, as it was his duty to do. He says he did answer a signal from the Express, but without exactly knowing \vhat that signal was. He got no reply, and did notrelJeat his own This is not a compliance with the lations. He seems to have taken it for l!rantE'd that the Express would' keep out 'Of his way; ar,d,I'think, he gave her very little attention till the lastsignaJ. There waif also no lookout proper on either the Niagara' or the· tugs. I am not satif\fied that any signal whistle was given by the Starbuck until she was so llear that it was of no use. Her mate bered nontl; and none was given by the Charm until the vessels were;
396
very near together. It cannot be claimed that the absence of signals was immaterial. A common understanding by means of them was of the Next to the requirement that each vessel should utmost keep as near the middle of the river as may be, and pass to the right, signals are among the most important ofthemeans provided by law for the avoidance of collisions. The Connecticut, 103 U. S. 710, 713. I cannot for a moment doubt that had proper signals been given by the Starbuck, at a reasonable distance, indicating that she intended to go towards the New York shore, the Express would have gone, as she might then have gone, towards the Brooklyn side. It was the conduct of the Niagara, in continuing to cross mid-river, and to approach towards the shore when first seen, and her continuance of that heading without any proper and timely whistles indicating an intention to go back.to the New York side, that compelled the Express to hold herself in a position of expectancy to do what might be apparently needed, rpail1taining about her relative place in the river, as she did, until her Ifllltsignal, when she was compelled to back by the darting of the StarbQqk towards the New York shore, which made it impossible for her to go ahead safely on either side. This sudden hauEng of the Starbuck towards the New York shore muot also be ascribed to inattention by the Starbuck to the headings of the principal vessels,-the Express and the Niagar!l. There was no proper lookout on either the Niagara or the tugs. The Ar,iadne, 13 Wall. 475, 478. I have no doubt, both from the direct testimony, as well as from the swinJ]: of both vessels to starboard, and of the hawser, that at the time when the Star!:luck sheered, probably about a minute or a minute and a half befQre the collision, the Niagara's bows were already across the line of the course·of the Express,. and still heading at least a point to the eastward or starboard of the course of the Express, and that, had the Starbuck observed this, and gone to the eastward, as she ought to have done in tpat situation, there would have been no collision. The small angle of collision, about a point or two only, notwithstanding some starboard swing of the Express in backing, leaves no doubt that had the Starbuck taken that course the Express would easily have passed clear to the westward. Wl).ether the Starbuck was or was not a point to starboard of the Niagara at that time is immaterial. She could easily have gone towards tpeBrooklyn side. It was then too late for the Express to go to the eastward, and the Starbuck's sheer prevented her going to the westward, and made collision unavoidable. The Express properly reversed to avoid collision if possible; or, if not, to reduce its effects to a minimum. There was no cause and no necessity for the Niagara to be upon the easterly side of the river. The statutory duty to go in mid-river and pass t9 the right required her, when nothing was in the way, to keep on the westward side. Her own evidence leaves no doubt that she could have kept there at all times had any serious effort been made to do so. The cbart put in evidence no reason why, after leaving Ninth she should not have hauled out towards the middle of the river anywhere street, with a tow drawing but 15 feet. This would have
397
given her a very easy curve. But, aside from this, her testimony shows that after keeping close to the New York shore until she reached Third or Fourth street, she tllen hauled to port so as to head for HaveOleyer's when abreast of Houston street, thus changing at least three points in going down river about 500 feet, notwithstanding this change was obstructed by the flood-tide on shore. A similar change of three points to starboard, effected from the time when she was off Houston-Street ferry, and outside of the Stanton-Street reef, which extends out only about 300 or 400 feet, would have brought her heading straight down the river, instead of towards the Brooklyn shore, and have kept her all the time 'Within the New York side of the river, and would have been accomplished at least a fifth of a mile above the place of collision, and probably before she was seen by the Express. The sheer of the Starbuck and the Niagara cannot be justified as an error in extremis, because the situation, when this error was committed, was a faulty one, for which 'they were themselves to blame. The Elizabeth Jones, 112 U. S. 514, 5 Sup. G't. Rep. 468. I do not think the speed of the Express was at any time substantially above the statute limit of eight miles an hour, allowing about a knot for the ebb current. If at one time previous it may possibly have been a little above eight miles, which I doubt, it was reduced by stopping her engines at such a considerable distance from the Niagara as not to constitute a proximate cause of the collision. At the time when her last signal was given, she was running, I think, at the rate of less than seven knots, and from that speed she would stop more quickly than the ordinary finer line steamers of the same maximum speed; that is, probably in ll'ss than one and a half minutes, lj.nd in less than 550 feet. The Normandie, 43 Fed. Rep. 151,160. The Niagara, coming down with a current of about a knot, was probably going at t:1e rate of two and a half or three miles an hour. Though this speed was somewhat checked, there remained sufficient speed to account for the damage done in the case of vessels so large as these. The above rules, as to the navigation of the East river, have been constantly applied in this court, and have been affirmed in the circuit court. See The Rockaway, 38 Fed. Rep. 856, affirmed, 43 Fed. Rep. 544; The Chas. R. Stone, 18 Fed. RE'p. 190; The Garden GUy, 38 Fed. Rep. 862; The Anglia, 41 Fed. Rep. 607; The Britannia, 42 Fed. Rep. 67. They seem to me to require the Express to be absolved from blame, and the tugs to be held in fault, irrespective of the rule of the starboard hand, which is not necessarily applicable in turning the bends of rivers.. The Velocity, L. R. 3 P. C.44; The John S. Darcy, 29 Fed. Rep. 644, 647; The Oceanus, 5 Ben. 545. A decree in the second libel may be entered in favor of the owners of the for their damages and costs against the two tugs, whose stipulations are sufficient to answer her demands. The Bordentown, 40 Fed. Rep. 682. In the first libel, the Express is entitled to a dismissal with costs. In the first suit no relief was demanded by the owners of the Niagara against the tugs. If relief is SO'flght in her favor against them. I will hear further argument on the part of the tugs upon the question
FEDERAl, REPORTER,
whetber,upon the evidence the Niagara was such a participant in the navigation as to be chargeable with half the damages. See The Doria J£ckhojf, 32 Fed. Rep. 555; The Carrier Dove, Brown. &L. 113; The 'Vriobd,13 Prob. Div. 55.
THE MYSTIC. FINCH 17. THE LIGHTER MYSTIC. (Dt8trict Court, S. D. NfJUJ York.
December 15, 1890.)
COLLISION-PERSONAL INJURIES-:-MuTlCAL FAULT-PART DAMAGES.
. While the can'll-boat on which the libelant lived lay moored in U," slip. the bowsprit of ,the M: approached the cabin, threatening collision. The libelant ran out to remove her child out of harm's way, and, having done so, put her hl;lnd against the end of the bowsprit, to fe,nd it off. Her wrist was caught betwecn the bowsprit and the cabin window frame,and was broken. Held, that the libelant, though phargeable with contributory negligence, could recover part of her damin' accordance with the decision of the supreme court 1n the case of The Maa: . , Morril, 11 Sup. et. Rep. 29.
In Admiralty. Hylftnd
for libelant. Alexander Campbell, for claimant.
J. The libel states that, while the Yonkers, upon which the libelant lived, lay along-side the wharf, on the lower side of the slip, between piers 28 and 29, East river, bow in, the lighter Mystic,in going out of the slip, ran :her bowsllrit into the stern caGin of the Yonkers, and struck and broke the libelant's arm, for which recovery ofdamagesissol1ght.. The answer alleges that while the lighter was stu.ok faat-between two other canal.boats, in endeavoriug to get out of the slip\: thaYonkers drLted down upon the bowsprit of the Mystic. The weioght,of:pro6f and of probability is inconsistent with the alleged drifting dewn of the Yonkers upon the Mystic. All the evidence indicates that the U10vement of the bow. of the lighter was a very gentle movement,and I have no doubt, taking all the evidence together, that it was some swil)gof the bow of the lighter towards the Yonkers, while her stern was rpoving in between the . other boats, and while the lighter's men we,re .endeavoring to make'rnoreroorn fo1' her, that brought ahout the collision. While tbe lighter is there lore responsible, the damages would evidently have been but slightbad not the plaintiff herself most improperly and foolishly endeavored to fend ofI'the bowsprit by putting her hand, against the end of ita:s it arproachedthe cabin; the result of which was ,that her hand was caught between the end of-the bowspl'itand the frame of the cabin window 1 and the oilter bone of her wrist broken. A few seconds previously she had seen the bowsprit approaching, as she satin the' cabin/and she ran out to rescue her chihI trom danger, ,who