THE SHUBERT V. THE EINAR.
compll\int was made, and the danger, pointed out to him. As I have some doubt, however,whether the libelant's negligence did not also contribute to the accident, and as it was not proved that any great permanent disability will probably result, I allow the libelant $400, and costs. The Max Morria, 137 U. S. 1, 11 Sup. Ct. Rep. 29,24 Fed. Rep. 860.
SHUBERT"'. THE EINAR AND THE IVANHOE. THE EINAR
(Dlmict CoUrt,E. D. Pennslllvanf.a.February 6, 1891.)
AIm Tows. The tug Ivauhoe and tow Einar, passing down the Delaware, met head on thetu'g Brown and tow Shubert passing up, botlitows being asteru, on a windless night, asl1glit:fog near the water and tide flood.. When the Ivanhoe sighted the Brown she continued her course in silence for a few minutes, then turned eastward lu silence. The Brown then went .port, and blew one blast, which, being immediately foUdwedby a blast from the tug Argus, slightly below, (loming up, was mistaken by the ,Ivanhoe for a two-blast from the A:rgus.The Brown was then discovered in front of her bows. The Ivanhoe and Brown then ported, and the tows collided. Held; as the Ivanhoe had notsipaledthe Brown before turning eastward,'had the whistles oft.be Bt:Own and Argus, althollgh the two had ad.Uferent. !JOund, and the vessels were some distance apart, she had. not kept a vigilant lookoilt, and WBs in fault. '
SAME-'-'NEGUGBNOB 011' TuG.
A ,tow ;having a pilot on board was brought by the negligence of her tug into QOllision. ' Held; as a pilot's duty was to control the tug as well as the tow, anll 6s the fllililre, of, the tug to take proper precautions must have been observable from the tow, the tow is equally liable with the tug. Following The CivUta, lOS. U. S. 699; The Hart v. The I'llanhoe. 58 Fed. Rep. 765. '
ADMIRALTy-AOTIONS ON DIlI'lI'BRENT RIGHTS.
A vel/sel brought an action against a vessel with which she had collided, and the tug towing it, in one district, and against her own tug in another. He£d a decree holding the other vessel and her tow each equally liable should provide that the amount recovered from her OWJl tug be deducted from the amount awarded, and that it should be drawn to secure a recovery from each of the amount the other should fail to pay, and that it' \Voulll take precellence of a decree in favor of the other vessel against her tug.
In Admiralty. Libel by William H. Sloan, master of the schooner William H. Shubert,.against the Einar and the tug Ivanhoe; and libel by LauritzOlansen, master of the bark Einar, against the schooner WilliamH. Shubert and the tug Ivanhoe. Henry Edmunds, for· the Shubert. JohnQ. Lane, for the Einar. OoulBton &: Driver, for the Ivanhoe.
BUTLER, J. On the night of March. 21, 1890, as the schooner Shubert was passing up the Delaware river, off Reedy island,. towi3d astern
,1Reported by Mark WilksCoUet, )jlsq., of thePhila:llelphillo bar.
tug Brown, she endou'llrieredthe·bar.kiEinar pilssingdown, towed astern Of the tug Ivanhoe..:' The schoonin' and bark came into :collision, andeaphwllS seriously damaged.'; The former libeled the latter and the tug at this port, and· the :Brown in Delaware. The' bade libeled tho sc1iOOner;hl:lrel :and the''Br.0Wh in Delaware. : At the time of the accident the atmosphere was thick near the water, and the circumstances were !!uchas an especially vigilant look· out. There was virtually no wind, and each tow was depending entirely on her tug for motive power. The tide was flood; notwithstanding the ·conflict of Wstimony reEipecting the concl'lisi6uSt8.ted 'seems fully warranted. The vessels were. abop,tthe center oUhe channel, and approaching so on" a8 lio' render a change of course necesto. Here (tgai'll but Its decIded weIgb:t supports the conclusIOn stated.' That the tugs so understood the situation at the time, is clearly indicatell. by the lvanb.oe'l! 'etfstward:l :a?d " ·. ' 18 ponsider tHe .ch/it'gEl agam.st.theBrown; she ls.not ." .. ". . '. here. . Was tMI in fault? .'Sheil;l pha,rl¥ld not mainmtq."yleW,,·orat, wast tunuugei\atwa;rl'l.;. and m fal1mg 0 Brown's, the testinii:iny s'ttstaiuif the Charge; Ghinting the allegation against the Brown, itdoes not tendto excuse hercondQct. Shesaw
of and. the condItIon of"tlle' atmosphet'e,--,rt announce her presence by a proper signal.. "Instead. ofd.oing this,shecontinuerl her'course'foI' ,srveral mil'i,utE\s :i.r1'silence, and tperi.,t1,1i'p.edeasfward, .still 'w:itJ.il.9u;t. wa:rbing. The Si,tuationcalled for extraordifiary vigilance, and'sheflliled tbobserve'stich as is' ol'dinaTy to the pegligEm,t,8J&o, in :falling to the Brown's first signal. The distance between the Brown and thel\.rg\l's 'was such,and the differel;lCe in the tone oftheir whistles such, that proper attention would ha'I.e the mistaken su pposition (w urges .in. excuse) that signal, as' weI! .as the neh;: caPie' and they were'a .Themastet::'explainsthe cause of the inisapprehetliJion bi1¥S 'he "was not looking for ll. signalfrbni the Brown, in consequence of her p?sition.This, bOWelJ'er, is not a valld excuse. The situation was such to observ:e,the other closely. The only other man on. dec)t was eVe:h'less'vigilantjit is doubtful whether he noted any of the signals, or even'uriderstood the sit· uation .. Indeed, itmay ,vell be doubtedwhether he possessed sufficient ipteiligence'toquaHfy him for W6k&uthad been piop;and the Brown's firstsigna1'6oservedarl(Hfbeyed, as ifsnould have been, the accident would have been avoided ... The.master of the tug testifies that if'l'ie had g6hewest-Watd'ltnhis
not- pa.,ve ;occurred<: I need, on Utili branch of the case. Suffi. cient has been said to indicate my reasons for finding the Ivanhoe in fault. : I apt nO,i ,sure,;however; is not also blam'able for turning westward on receiving the Brown's second signal instead of reversing. Had shereversed, andtl;1,e Einar's anchor been dropped at this tiQle, it seems thatthe accidellt might still have been avoided. The tide IUaneuver. It Illay be said the vessels were then in peril, and a mistake at that time was therefore excusable. ,The vessels were in bllt If doubt whether there was such peril as would :e:ltcuse the mistake whi((hJ incline to believe was made. Was the Einar in fault allWt had a pilot on ibQa,rd, who was'in cont1()lof hllr movements and ,tpose of the tug., While it was the t;ug's,d,uty., to exercise proper care to avoid <:01lision, and to govern her own movements as to ,render it impossible, if was nevertheless the pilot's duty t9see that she did this,'by interfeJ;'I}g;8.Ild,direcQ,ng when she was remiss. TpeBrown's and Shu,Were sem: frqm the Einar as early, if not earlier j than, from the Ivanhoe,'and yet although the 'Pilot l.'aW,or should have Seen, ,tbllt the latter was failing in all necessary precautions to avoid collision, he did nothing whatever to control her movements. His testimony shows why he did not. He lefl everything to her master, in seeming ignorance of the fact that it was his duty to direct the navigation of the tug as well as of the tow. Ullder,these circumstances', and in view of decision in The Oivilta, 103 U. S. 699, the Einar, also, must be held responsible tor the collision. That-case and ,this are similar in their tacts; there, as here, the pilot was on board the tow and ill command of both vessels; in prihciple they are identical. the tow was held liable charge and aboard of to damages because the pilot, who was in her, 'failed to discharge bis duty. There, as here,he!ailed to llssume commalld, leavillg it to the master of the tug·. 'l'he court says:
" are responsible'ror the navigation. as has already been stated; the ship O1vilta because her pilot was in the tug hecause of the dlltr Which rested on' her to act un her own 'respi1,r'sibility.i1l the sitwbiCh.l\,he Was placed. The tugwas in she did not of her own, jnotiOIJ change hl'r course; * * * and the ship because her pHot, who 'Ilad 'eharge of both ship and tug. neglected to give necessary cUrt'ctiOJis to the tug wilen he saw. 'or should have seen, :no precautions were taken to avoid the approaching danger."
. This vieww&s adopted:and
in' The Hartv.The 38 . " . ... " i . It may"(JOssihlybe difficult to undprstandthe sel respOllMl¥efor the piloHvhom the law pronpup,ces ,competent; a.nd ·virtually compeJsller ,t(),ernploy and trust with her na\"igatiot)..lt';ls,tbo " '. The Einar iSicharged;with 1a\l1t, also" in, failing to follow her tug. I am not satisofied this charge is well founded.' She' appears to have endeavored to follow t, and,it,¥lems, ,prouaple, she' did aswell.assbe eQuId
under the circumstances. The sudden changes of the tug were enlbarrassingJ The charge against the Shubert is not sustained. The only contributory negligence alleged is that she did not follow her tug, an'd this is I think fully disproved. The Ivanhoe and the Einar must therefore bear the Shubert's loss in equal proportions,-first deductirigfrom the loss such sum asthe Brown may be adjudged responsible for and compelled to contribute if the Shubert's libel in Delaware is sustained. The Ernar's libel against the Shubert must be dismissed, for the reasons already stated. Her libel against the Ivanhoe is sUl;ltained to ,the extent of one-half her damages, arising from the'joint fault of the Ivanhoe and herself: Satisfaction ofthe 'decree:jn her favor m-qst, however, be postponed until the decree against her and the Ivanhoe 'in <)f the Shubert is sa.tisfied. ," , The decree in favor of "'the Shu'bert'will be drawn in conformity with the rule established in The Alabama, 92 U.S. 695, so llS to secure a recovery from the' other respondent of such part ofone'spropdriion of the damages as he may fail to pay. ' , '" '
SAME. February 14, 1891.) ,
(District Oourt, D. Delaware.
COLLISION-TuGS AND To'Ws-LIABILlTY 01/ TUG.
Th,e tug Brown, towing the ShlJ.bert astern" up the tug Ivanhoe, towing astern the Einar, passing down. m a calm night, a mist hanging over the water to the height of 10 or 15 feet. The side lights of the vessels were hidden, but the Brown had been steering by the high lights of the Ivanhoe, believing them those at Finn's point, and did not disoover her mistake until, when rounding to; to anchor. she found herself close to the Ivanhoe. She then went ahead full speed hard a-vort, blpwing Olle blast. which was, answered by a tug further down the river; Doth tbgether. being mistaken by the IvanhOe for a two-blast from the Brown. 'The Ivanhoe 'starboarded, but immediately changed her' helln to avoid a oollisiQn between herself and the Brown, the tows colliding. ' Bela, a8 the Brown was in t)J.e high lights of the Ivanhoe, in porting- bef\lrl! sl1e received an answer from' ,her, and in not sounding her fog signals, she was resl/onsible for the damage& to thE! Shubert. . " ..
The tug Ivanhoe, passing down the Delaware at least six miles an hour, in Ii thickening fog, through a cllannel mile wide,' and, straighttwotiiiles below and four miles above. and sounding no fog signal, was towinl$" the Einar, which had a PH,ot ,on board.. She met, near,lY head on the tug Brown .· ut> with a tow. When 010s6 tojreth!lr the Brown sounded a: blast, Which"being answered by a tug below, was believed by the Ivanhoe to, be. a tWO-blast from the Brown. ,The Ivanhoe starboarded without answering, and, seeing that a collision was immillent. ported, the tows colllding. ,Held, as the Iva/:lhoe wall in fsultin not giving fog' signals, in nof keeping olf. from the Brown,a/:ld changing course without answering the s,ignals, and by her negligence had contributed to the cbllision, and as the.duty of the pilot was to control ,both tow and tug, the Einar could not reoover from the Brown.
'Reported by Mark Wilkie Collet, Esq., of the Phila.delphiabar;