THE MINNIE C. TAYLOtt.
at.v. THE MINNIE C. TAYLOR. at. v. THE F. H. WISE.
COURSES-WHEN DUTY TO ABAN'
l.lJilI,trWt Court, S. D. New York.
COLLTST,oN-SA.ILD1G VESSEL AND DON RIGHT OF WAY.
Thet-ug Wise, with two barges, one behind the other, in tow on a hawser, was proceeding a channel in Vineyard sound by night, bound east. Some 200 to 600 feet off on her starboard hand, sailing free, !lnd drawing ahead of the ,tow, was a sailing vessel. The schooner Minnie C. Taylor, bound west, was beating across the channel, and was on the starboard bow of the Wise. It was the statutory duty, of the Taylor, in that situation, to keep her course, and of the sailing vessel and thetuA' te'avoid her. The sailing ves$1ll went across the bows of the Taylor, which always held her course, until she struck the bawser between the tug and the forward barge, and was then run into and cut down by that boat, The court found that the int.ention of the sailing ves,sel to cross the bows of the Taylor became evident to the latter when she was 800 feet from the line of the tug and tow, and bad ample room to tack. Efeld,that in such situation, with the sailing vessel crossing her bOWS, and the tow almost directly ahead, and ample t.ime for hersel! to have gone a1;lout, it was the duty of the Taylor, though she h'ad the right of way, to have tacked, and that the pilot of the Wise was justified in thinking that the Taylor Would do so; ,but that, when the actual course and intention of the Taylor not to tack became evident, the tug should have slackened her hawser, as she h$d abundant opportunity to do, and permitted the Taylor to cross it. Held, therefore, that both vessels were in fault, and the damages should be divided. After the collision the tug towed the schooner into' port. Held, that the tug, being partly in fault for thecol1ision, could not maintain an action for salvage.
2, SALVAGE-AID RENDERED VESSEL IN COLLISION BY,COLLWING VESSEL.
In Admiralty. Libel for salvage. Cross libel for damage by collision. Benedict & Benedict, for the Minnie C. Taylor. Carpenter & Mosher. for the F. H. Wise. BROWN, District Judge. The above actions grew out of a collision which took place at about 2 A. M. of. May 8, 1892, in Vineyard sound, between barge No. 55, iIi tow of the steam tug F. H. Wise, and the schooner Minnie C. Taylor, by which the schooner was seriously dam. aged. After the collision the schooner was towed by the tug into Vine. yard haven. The owners 'of, tbetug, claiming that the collision was caused solely by the fault of thE! 8chooner,filed the libel first above named for salvage compensation for their aid to the schooner after col. lision. The cross libel was 'filed to recover damages to the schooner, on the contention that the collision was caused solely by the fault of the tug. If :the latter contention is correct, the libel for salvage cannot be sustained. The place of collision WR!! in the channel way between Squash meadow and Hedge fence, apassllg:dess than three fourths of a mile in width, as bounded by the range of the red light from Nobska point on the
north,.and by the red range of the West Chop light on the south. The tug was bound east, going along the northerly side of the channel way near the red range of the Nohska point light, and heading about southeast by east. She had in tow barge No. 55 astern on a hawser of 125 fathoms, and another barge astern of the latter upon a hawser of from 80 to 100 fathoms. The. schooner Taylor was bound from St. Johns to New York, with a cargo of lumber. The wind was north northwest, and a good sailing breeze. Thesohooner was 108 feet long, with three masts and three jibs. All her lower sails were set, and hoth she and the tug were making about four knots an hour. Not long before the collision schooner h,ad come about from her starboard tack, close hauled,' and heading about northeast by easi; that is, at right angles with tijecourse of the tug and tow. The night was clear, with moonlight; and the schooner and her course were recognized by the pilot of the Wise, by her sails, at a sufficient distance without distinguishing her lights. Th,ete.is some confusion in the testimony as to the position of the vessels when seen by each other. I have no doubt, however, that the schooner was seen when at least It quarter of a mile distant from the line of the tug and tow, at which time, computing backwards from the collision", the plotting ,of the navigation will show that the schooner must have borne about two and one half points forward of the tug's bellrIfi, Atthe same tiOIe another schooner, bound eastward, with the 'wind free,. was going befweenthe line of the tug and the schooner, parallel with the tug, and 'about one third faster than the latter, as I find from tpe'e"idence of the tug's witnesses. When the 'l'aylorwas first seen, the "other schooner had already passed, or was passing, barge No. 55, and was drawing up towards the tug on a course distant'.fromherj acoordiag to the estimates of the differentwitriesses, from 200 to 600 feet. By the ordinary rule ofnavigatioll it was the duty of the tug and tow, and of the other schooner, wHich had the wind free, to keep out of the way of the Taylor. The mate of the Taylor, who was in charge ofher navigation; testifies that he expected both of them to turn to starboard arid go under his,' stern. But the other schooner was at a and had sufficient speed, to keep out. of the way of the Taylor by going ahead of her, and did so; and the tug and tow, so long as the parallel schooner kept on her course, could not turn to starboard, since that. would involve collisiouwith the latter. The Taylor, on the other haWi,was bound, as respects the other schooner, to hold her course'1olntil the risk Ofcbllision with the latter waa over; and it is contended that when that risk was past, she was too near the line of the tug mld:tow to tack without com-ing:into collision with the barge. She accordingly·kept her course as above stated, without change, and as the evidence shows,ran within 75 feet of the barge till she brought up agains,tthe,hawserj ,and her speed befng ch8l<ked thereby, the barg6 at her main _chainsl;l.\;lollt 60 feet from came up and struck stern.
rHE MINNIE C. TAYLOR.
The above circumstances constitute, it is evident, a case of peculiar circumstances. But tbese circumstances were palpable and open to the observation of both vessels alike. Either, by the use of reasonable endeavors, migbt, as it seems to me, easily have avoided this collision, and botb, tberefore, are in fault. 1. Tbe scbooner ought, under the circumstances, to have tacked and come about wben tbe determination of the otber schooner to go ahead of her was perfectly assured, if there was room for her to do so; and that there was room I have not the least doubt. The design and course of the other schooner were, as I find, perfectly evident when the Taylor was at least 800 feet from the line of the t1;lg and tow. That allowed an ample space for the schooner to come about and avoid collision. That the Taylor had this room is easily deducible from the evidence. The concurrent testimony, both of the and of the schooner. shows that tbe other schooner must have been from 400 to 500 feet to southward oftbe tug. The mate estimated the distance at 500 or 600 feet; the master and the officers of the Wise, at half that distance. But the facts of the navigation furnisb the best evidence. For the Taylor was just coming up under the stern of the other schooner when the master and pilot of the Wise saw that she was not going to tack, and, therefore,starboarded and slowed. At this time the other schooner was just lapping tbe stern of the Wise, which then bore a little on tbe Taylor's starboard bow. When tbe master of the Taylor came on deck, he says he was right astern of the other schooner, about balf way across her and from one to two lengths distant. The line of the Taylor's course, therefore, lit the time when her bow had come up even with the stern of tbe other schooner, say 100 feet distant, was about 200 feet asterniof the tug, which agrees witb the master's estimate. As tbe Taylor went within less 'than 100 feet of barge 55, which was 750 feet asternaf the Wise, it follows that tbebarge moved from :400 to 500 feet, wbilethe Taylor was passing, from ,the line of the other schooner to that of the,tug and tow; and as the Taylor was going at least as fast as the barge,thtil other schooner must have been at least 400 or 500 feet from the line of the tug and tow. But tbe, intention of the other schooner to cross ahead of the Taylor must have been perfectly evident to the' Taylor from the time when she had C0111e. within 300 feet of the line of the'l'aylor's course, showing no change. Assuming that. the other schooner was of the same size as the Taylor, that is, 165 feet ov,er all, she must therefore, have traveled about 570 feet from tbat time till the bow of the Taylor was astern of her; and the Taylor must have sailed in the same interval about 400 feet. Adding this to the distance of the other schooner fron'!. the line of the tow, it follows that the Taylor was free to tack, if she .chose, when from 800 to 900 feet distant from the line of the tow, and more than 1,200 feet distant diagonally from the barge. If, to make assurance doubly sure, the Taylor had waited until the other schooner was within 100 feet of the line of her course, the Taylor wouldhllve been about 300 feet to the southward of the schooner;i. from 700 to 800 feet to the southward of the tug and tow.
it was the .dl:\ty;of'the Taylor to tack, becallse,there was smple,rbomdor hertodosoi·Thetug was right ahead of her, and there w8s,noo1Jherprobable: Waytifiavoiding collision, except by taking the cbilU'C8ofl running over i the: hawser, an experiment which a sailing vessel should not resort to on her own responsibility except in extremiB. The tughadgiv'en nosignahuggestilig:to cross the hawser; nor had she stopped; and stopping ,was a: necessary precaution if the schooner was to cross. The ,tug, had· been expecting the schooner would tack, because she could dO':soandwas near thenortberly line afthe channel. The scho6ner'a coritinuanceon: ,her'course was, therefore,a deliberate and unnecessary running intclJ,daI.1ger, ,in, the face of evident peril, when she had abundanfmeansof'sv<oiding,it by tacking. A radius of 700 feet is much more space than is, necessary for a schooner only 108 feet long to tack in. Otherwise there 'Would be little beating in the East river. The mate testified she' wanted or four lengths I ,'......" 500 or 600 feet." Threeibihgths would he :but; 324 feet. When the master came on deck ·heaskJed the mate why he' had not tacked,i· .e., before; and the latterreplied,"on acoount of the scnooner." '·,Bett it is noticeable that even then,when the ,available distance for tacking had been diminished by almost! one half, the mate asked the captain' if he should put the wheel down.: This would indicate that the mate thought taoking was possible ,even then, as 'the master and pilot of the Wise testify it was. Thecaptaiaordered him to' keep his course. The mate's <knowledge of the rules as to the meaning of a tow's lights was defective, 'and' I doubt whether he recognized" as he ought to have recognized"that the barge was in tow of the Wise, until the other schooner had paSsed the Taylor; and it was then that he first called the master. iat that time had the wheel been put hard astarboard, the Taylor must have gone astern of the barge; and if she did not wholly clear, the most that could ,have resulted would have been, I think, a harmless sagging of the schooner upon the hawser. between the two barges. He' had no right tOlun blindly upon a dangerous course, when a. safe tack was easy. It is evident,however, that ,the master expected to run over the for· wilirdhawser,and took his chance$of clearing it rather than tack at that time. He" no doubt, miscalculated entirely as to what part of the hawserhe would' cross. Had he crossed it near the middle, where he says he ,,\,ent, hew.ould, no doubt"hav,eclearedit. But instead of going midway, as he might have done, by porting his helm, he went so near the barge as to'encounter the ,hawser. The channel in which these vessels were moving resembled a river more than tha-9pen sea. The tug and tow were proceeding, in effect, near the bank, represented here by the red range of the Nobska point light; and there was no realocoosion for the schooner to cross that line. Lnthe .ordillllrycourse of navigation she would have speedily taCked. In such a situation it was but reasonable in the tug to assume that the Taylor would tack as soonaa' she WaJs free to do so, just as in proceeding near the river banks tug thus incumbered by a long tow, would not
· THE MINNIE C. TAYLOR.
expect a schooner to insist on crossing her course merely to run a length or two nearer the river shore. 2. In the circumstances of this case I do not think it was reasDuably incumbent on the pilot ofthe tug to stop and allow the boats to huddle together, simply to give the schooner a chance to cross his course if she should choose to do so, instead of tacking at about the place where she would naturally be expected to provided the tug took care to give the schooner the chance to cross a perfectly slack hawser, if she insisted on crossing his line. The tug had the right, I think, to perform her duty of keeping Qut of the way by either stoppinR early enough to let the schooner go ahead, or by stopping later, in season to give a safe course across III slack hawser. I thinlt the tug could have stopped in time to allow the schooner to go ahead· of the tug, if she wished. But without passing upon the question of her duty to do so under such ces, I thInk the tug must be held to blame for not stopping sooner, or casting off·her hawser, when the actual intention and, course of the lor not to tack were perceived, in order that the, manifest danger from the hawser might be avoided by letting it all drop to the bottom. The schooner's intention to cross the hawser instead of tacking was evident in abundant time either to slacken it thoroughly, or to cast off. The evidence of the tug ,is, that she did stop her engine before collision so as to slacken the hawser to some extent. But the evidence of the pilot shows that the Taylor was then very near the hawser. A small iriterval after stopping would have been enough to allow the barge to run up so that the hawser would have di'opped nearly perpendicularly from her stem, instead of running out ahead considerably as it evidently did. The greatest depth of water there was only from 10 to 14 fathoms, so that a short stop would have brought the whole hawser down tothe bottom. In the case of The Galileo, 28 Fed. Rep. 469, the tug was held in fault, on appeal, in the circuit court, for not having stopped sooner and cast off the hawser of the tow, although the tug had the right of way, and the other steamer, (which was in the situation of barge 55,) had given her a signal assuring the tug that she would keep out of the way Tn this respect I cannot distinguish the present case from that of The Galileo, except that in the present case the duty of the tug was much plainer and stronger, because the primary duty to keep out of the way was upon the tug, and the schooner had given no assurance that she would keep out of the way, and was evidentl)T proceeding to cross the hawser. Both vessels being, therefore, in fault, the libel for salvage is dismissedj and the owners of the Bchoonerare entitled to recover one half their damages, which, if not agreed upon, may be determined by a reference..
THE ROSE CULKIN. THE
ELDRIDGE 11. THE ROSE CULKIN. CULKIN ,11. THE
(Dtstrlct Court, S. D. New York. JUly 22, 1892.)
SAILING VESSEL TO AVOID STEAMER-RuLE
, that a steamer must avoid a sailing vessel presupposes an ability, to, keep, away, and a relative' freedom of motion in the steamer as respects the iailiiill'vesssL When' these ,conditions, are mainly reversed, the exceptional tbatis prOVided for by rule 24. Accordingly, where a tug with a tow was oroBslng the mouth of the 'North river, diagonally, at the rate of about two , mileS an hQur; ,and a sailing vessel ca.ttledoWn the river before a strong gale at the tate hetd. it was tbe duty of the sailing vessel seasonably to shape 'Iuir 4;lourse so as to avoid the tug. The sailing vessel having at first luffed to gO'$8t6rn of,:the tow, arid then paid off again, when close up, in an attempt to cross tb,ebows of the tug,8l1dtllelatter not being able to do anything thereafter to,keep out of way, heZd. that the sailing 'vesssl was solely liable, for the collision which e6suoo,;', ' " " ' ,
2. LIMIUTiolkOl' "LIA:BII,ITY..... OF VESSEL-I'REVIOV.s' STIPULATION FOR ' V ALO'E..".Ii!fT!!RM!£DIATE VOYAGES, WHEN NO BAR.
of ,the ,vel.l¥l herself in tqat I1roceeding; and though the vessel may have made several short'voyages after' the giving of 'such stipulation, and before the surTender,sbemaystill besUrrendEired ,exoneration of liability, prOVided her value has not in ,thel'n.ean time beco,me impaired, and the circumstances show that no waiver the right of surrender was intended. Foreign authorities considered.
to asnbs!JqUMlt ,proceeding iQlimitation of ,liability, nor any bar to the surrender
,The giVing,' 0,'f" a stiPUIBti,Oll f,or, the value of a vessel, on libel in co,llision, is n6bar
In: Adiniralty; Libel by Alhert B. Eldridge, owner of the steam tug Rose Culkin, for Cross A. C; Nickerson. against the libel by Catharine A. Culkin, owner of the Culkin, against the Nickerson. Immediately after the filin,gof the libel against the Culkin, her owner gave a stipulation for $3,500 as the .agreed value of the vessel, and thereafter reparred and used hcr inVQyages between New: York and Rockaway. Subsequently her OWner filed 11 petition for limitation of liability , and, offereij, to'surrender the vessel. , . Carpenter &JMosher, for Nickerson:. Alexander, &l Ash, for the RoSe Culkin and petitioner..
, BROWN\<:IDistrict Judge. Between 3:30 and 4 P. i.1. of October 27, 1891, as the schooner" Rose Culkin," bound down the bay from the Erie Railroad dock at Jersey City, was approaching Ellis island, she came in collision with the steam tug Nickerson, striking with her stem the port side 'of the 'tug: at an angle of from five: to eight points. Both received :libeLand yrosslibel: w:erefiled. .The wind was blowing such a gale from the "northwest, or west northwest, that a lighter came down to the westward of the schooner sailing under bare poles. The schooner was light, about 74 feet long, and E}ailing under a jib, foresail and two reefed mainsail, and she was going through the water at the rate of about 10 knots, or against the flood tide about 8