where there has been such contributory negligence, or, in other words, when both have been in fault, the E:1ntire damages resulting from the collision must be equally divided between the parties. This rule of the admiralty eommends itself qUite as favorably. in its influence in securing practical justice, as the other; and the plaintiff. who has the selection of the forum in which he will litigate, cannot complain of the rule of that forum." It is not intended tlJ say that the principles which determine the existence of mutual fault. on which the damages are divided in admiralty, are precisely the same as thOse which establish contributory negligence at law that would defeat the action. Each court has its own set of rules for determining these questions, which may be in some respects the same, but in others vary materially."
Upon these views of the law, the collision rule for dividing damages can no longer be considered as applicable only to cases involving the rights and responsibilities of parties for colliding vessels. The principles enunciated apply to all cases of marine tort founded upon negligence, without regard to any peculiar considerations of maritime policy for regulating the conduct of ships towards each other, or to any exceptional rules of practice adopted by the admiralty courts because of the intrinsic difficulty in collision cases of locating the fault, or the cause of the disaster. This decision covers the whole ground, and fully sustains the ruling in The Explorer and in the district court. The decree of the district court is affirmed.
NOTE. NEGLIGENO£cCONTRIBUTOny-RuLE IN AnMInALTY. The rUle that contributory negligence prevents a recovery is not applicable in admiralty, The Wanderer, 20 Fed. Rep. 140; TbeExT>lorer, Id. 135; The David Dows,16Fed. Rep. 154 j The JamesM. Thompson, 12 J<'ed.Rep. 189; The Garland, 5 Fed. Rep. 924; and will not cause the denial of relief to one whose ne,;ligence may have contributed to his injury, The Mabel Oomeaux, 24 Fed. Rep. 490; The Garland. 5 Fed. Rep. 924. Where a collision is owing to the negligence of two vessels, even though in unequal degrees, the fault should not fall wholly on one, The Pegasus, 19 Fed. Rep. 46; The Franconia,16 Fed. Rep.149; The David Dows. Id.154; Memphis & St. L. P.Co.v.H.C. Yaeger Transp. Co., 10 Fed. Rep. 395; The Monticello, 15 Fed. Rep. 474; and the damages will be apportioned according to the disparity or fault, The F. I. Merryman, 27 Fed. Rep. 313; The Columbia, Id. 238; The Mary Ida, 20 Fed. Rep. 741; The Syracuse, 18 Fed. Rep. 828; The B. & C., Id. 543; The M. J. Cummings, Id. 178; The Jeremiah Godfrey,17 Fed. Rep. 738; The Wm. Murtagh, Id. 259; S. C. 3 Fed. Rep. 404; Christian v. Van Tassel, 12 Fed. Rep. 884; The Roman, Id. :L19; Connolly v. Ross, 11 Fed. 342; The Ant, 10 Fed. Rep. 294; The William Cox, 9 Fed. Rep. 672 j S. C. 3 Fed. Rep. 645; The Farnley, 8Fed. Rep. 629; but where a plaintiff so far contributes to the injury by his own negligence or wantof ordinary care and caution that but for that negligence or want of care the injury would not have happene,l, he is not entitled to recover, The E. D. Ward, 20 Fed. Rep. 702; The Carl, 18 Fed. Rep. 655; Sunney v. Holt, 15 Fed. Rep. 880.
THE MICHAEL DAVITT. l
(DisfJrict Oourt, No D. New York.
October 23, 1886.)
CoLLISION-TuG's FAILURE TO GIVE NOTICE OF ApPROACH-PASSAGE TIIROUGH WATERS WHEltEON VIEW IS OBSTRUCTED - FIFTH RULE OF BOARD OF SUPERVISING INSPECTORS. ,
"Whenever a steamer is nearing a short bend or curve in the channel, where, from the height of the bank or other cause, a steamer approaching
IReported by Theodore M. Etting. Esq., of the Philadelphia bar.
THE MICHAEl, DAVITT.
from tne ontside direction cannot be seen for a distance of half a mile, the pilot of such steamer, when he shall have arrived within half a mile of such curve or bend, shall give a signal by one long blaBt of the Bteam-whistle." A failure to comply with thiB regulation, coupled with the circumstance that, until they were in cloBe proximity, neither vesBel was aware of the presence of the other, is sufficient to charge both with negligence.
In Admiralty. Collision. Libel in rem by the owners of one of two colliding vessels. Benjamin H. Williams, for libelants. George Clinton, for respondent.
COXE, J. On the eleventh of September, 1885, at about 2 o'clock in afternoon, a, collision occurred between the steam-tugs Eagle and Davitt, on the Tonawanda. creek, about 50 feet from its mouth. The Davitt was proceeding down the Niagara river, from Buffalo to Tonawanda. ,The Eagle was passing down the creek, destined for a point half a. mile up the river. The creek, at its mouth, is about 175 feet in width, and navigable, from shore to shore. The view from the creek to the river, and vice versa, was obstructed by lumber piles along the banks of each, so that the tugs did not discover each -other until they were in close proximity. ,The Davitt then blew Qne blast upon her whistle, and was answered by a simil!1r from the Eagle, indicating that each would keep to the right. Each party has endeavore,d to prove unskillful seamanship on the part of his adversary after the tugs became aware of each Qther's presence. ,If the controversy were confined to what then took place, it would be a most difficult one to determine; for a record so replete to with conflicting and irreconcilable statements is seldom the court. All agree, however, that when the signals were e.xchanged the danger was imminent. According to the preponderance of proof, the space between the tugs at this time must be measured by than 100 feet, and the time for action by less than seconds. The peril was clos6 at hand. It was' a situation to unnerve the steadiest hand, and confuse calmest judgment. There is not,hing, therefore, requiring severe criticism in the maneuvering of either tug at this time. Unquestionably, each endeavored, to the best of her ability, to avoid the accident. It would, in such circumstances, be nnjust to impute negligence to a vessel because she departed, in some slight degree, from the strict rules of navigation, or to hold her liable because her master, having to do two necessary acts, "reversed the .order in which he should have performed them. It is quite clear that the cause of the collision must be sought for prior to the time referred to. The fault was in permitting the tugs to get into so hazardous a predicament. That both are in this regard there can be but little d.oubt. Indeed, the presumption of mutual fault follows, as an almost necessary conolusion, from a mere statement.of the fact that two steamers, unincumbered by tows, ina wide
and unobstructed channel, and in broad daylight, collided III the manner disclosed by this testimony. First, as to the Davitt. The fifth rule adopted by the board of supervising inspectors provides that "whenever a steamer is nearing a short bend or curve in the channel, where, from the height of the banks or other cause, a steamer approaching from the outside direction cannot be seen for a distance of half a mile, the pilot of such steamer, when he shall have arrived within half a mile of such curve or bend, shall give a signal by one long blast of the steam-whistle." And a note, following the eighth rule, provides that "the foregoing rules are to be complied with in all cases, except when steamers are navigating in a crowded channel, or in the vicinity of wharves. Under such circumstances, steamers must be run .and managed. with great caution, sounding the whistle, as may be necessary, to guard against collision or other accidents." These are precautions which, even in the absence of regulations, would be dictated by common sense and common prudence. That the Davitt failed to give the signal provided by the rule is conceded, but her master asserts that, when approaching the creek, he gave a warning signal, consisting of three blasts of the whistle, which was followed soon afterwards by another signal of two blasts. It is impossi. ble to locate the points where these signals were given with anything like accuracy, for the master has made at least three contradictory statements upon the subject. The first was made on the day of the accident, when the occurrence was fresh in his memory, and it is, to some extent, corroborated by collateral facts and circumstances. He there asserts that when within about 100 feet of the point he noticed, across the point, a tug approaching, and immediately blew two whistles for the port side, and received no response. He then immediately blew one whistle, which was answered by the Eagle. If this is a correct version of the transaction, it needs no comment to prove that a grave fault was committed. To signal that he would take the left side, and attempt to take it, and immediately thereafter change his purpose and his helm, and signal for the right side, was a course calculated to mislead and perplex the pilot of the approaching vessel. It is true that the master of the Eagle testifies that he did not hear the blasts from the Davitt. If they were given, he must have heard them, and there is some evidence, based upon the conduct of his tug, indicating that he did hear them, and shaped his course a\lcordingly. But, in any aspect of the <lase,. the conviction is strong in the mind of the court that the Davitt failed to take the precautions which the circumstances demanded. She was close to the river dock-probably not over 30 feet ant-when she shot past the corner at a rate of speed sufficient to carry her to the middle of the creek before she could be successfully controlled. When she was in a position to see what was approaching in the creek her bows were across its mouth. She took this dangerous course, knowing that a tug was in the creek,
and that in maneuvering she had to contend against the swift current of the Niagara river. Surely this was a reckless disregard of the rule of navigation that in crowded channels, and in the vicinity of wharves, steamers must be managed with the greatest caution. The foregoing considerations apply to the Eagle as well as to the Davitt. It is impossible to hold. the latter in fault without including the former also. It is conceded that the Eagle, from the time she started from her dock until she was in extremis, gav-e no signal whatever, but proceeded, at the rate of about four miles an hour, directly down the creek, taking no precautions of any kind to notify passing vessels that she was about to emerge into the river. Of course this was negligence. The situation was similar in many respects to the case of The Troy, 28 Fed. Rep. 861, recently decided. The libelants are entitled to a decree for one-half their damages and a reference to the clerk to compute the amount.
THE NICHOLSON and THE
(Di8trict (Jourt, N. D. New York.
COLLISION-MOORING OF VESSEL-SPACE OCCUPIED-LOCAL ORDINANCE-VESSEL ¥OORED-TuG AND Tow-NEGLIGENCE. .
If a local ordinance permits the mooring of vessels, two abreast, and if the two together do not project as far into the river as a single vessel of the class constantly occupying the same space, the vessel at rest cannot, by reason of the circumstance that she is moored as aforesaid, be charged with negligence in being moored in an improper place.
2. SAME-Tow-HEAD-SAILS UNFURLED-NEGLIGENCE.
A tow is in fault if, in threatening weather, she enters a narrow fairway, filled with vessels, with her head-sails insufficiently secured, and, if this fault contributes to produce a collision, she is chargeable with negligence
BAME-Tuo-MEASURE OF SKILL AND CARE-NEGLIGENCE.
The degree of care required on the part of the tug must, obviously, be meas· ured by the condition of the tow. To tow a large and deeply-laden schooner up a narrow and obstructed channel, at the rate of five or six miles an hour, with a hurricane blowing, and the tow's sails unfurled, is not good seamanship, and, if this lack of care contributes to a collision, she is chargeable with negligence.
In Admiralty. Action in rem, against tug and tow, by the owners of a vessel moored in a river. George Clinton, for libelant. H. C. rVisner, for the Nicholson. George S. Potter, for the Adams. COXE, J. The libel in this action is filed by John Wimett, the owner of the canal·boat R. Webb Potter, against the schooner Elizabeth A. Nicholson and the steam tug James Adams, alleging that on
Reported by Theodore M. Etting, Esq., of the Philadelphia bar.