THE ORANGE.s NEW YORK CENT. & H. R. R. CO. v. THE ORANGE. (District Court, S. D. New York. July 21, 1892.)
COLLISIoN - STEAM: ,VESSELS CHOSSING- RULE 23-DUTY OF PRIVILEGED VESSEL-CONTRARY SIGNAI,-CHANGE OF COUHSE.
A tug was crossing the North river from Hoboken to New York, and heading a little above the New York slip of the ferryboat O. The O. left her slip, and, when some distance out in the river, gave two whistles to the tug. The evidence for the fer"yboat was that, at the time when the signal was given, the ferryboat was heading nearly across the river, and had the tug well on her starboard hand. The tug's pilot testified that, when the whistles were given, the ferryboat was a little on his port bow, swinging up stream, so that he thought her signal was a mistake for one whistle, whereupon he answered with one, and ported his heim. The vessels almost immediately came in collision, the tug being struck on her port side and sunk. Held" on the eVidence, that the ferryboat's signal was proper under the circumstances, and the tug was bound, under rule 23, to do nothing to thwar. her maneuver, and hence was in fault for her contrary signal, and for changing her course to starboard; that the ferryboat, having stopped and reversed on hearing the contrary signal from the tug, and thus having done all she could do to avoid the collision, was not in fault therefor.
In Admiralty. Libel for collision. Carpenter & Mosher, for libelant. Leon Abbett, Jr., for claimant. BROWN, District Judge. The abo'Ve libel was flIed to recover damages for injuries to the libelant's tugboat No.3, sustained in a collision with the ferryboat Orange, a little before 2 p. m. of December 30, 1891, about 800 or 1,000 feet off the ferry slip at the foot of Barclay street, New York. The tug was unincumbered and bound from Hoboken foi' the libelant's docks a little above the Barclay street slip. She had come down the North river as far as Pavonia ferry, keeping a short distance from the Jersey shore, and then made across the river, heading, as the pilot says, for about the Courtlandt street ferry, though I am not satisfied of the accuracy of this statement. When on this course, and a considerable distance off from the Chambers street pier, she observed the ferryboat Orange, bound from Barclay ,street to Hoboken, coming out of her slip, and got from her a signal of two whistles, indicating that she would' go to the westward of the tug. The pilot of the tug, considering the course of the Orange unusual in the situation, and in the very high northwest wind and strong tide, answered with one whistle and ported his helm. In about 45 seconds afterwards the boats were in collision, the stem of the ferryboat striking the tug at nearly right angles a little aft of amidships on her port side, and damaging her so that she sank. The most important difference in the testimony is in regard to the heading of the two boats at the time the contrary signals were
1 Decree affirmed by the circuit court of appeals, without opinion, (June 7. 1894), upon opinion of district judge.
FEDERAL iREPOltTER, 'vol.
exchanged. The pilot of t]1g t<;!stifl,es that the ferryboat was at that time a little on hIS' port bow,' swinging to the northward and eastwRJu,an.d: heading"'pretty nearly up river, so that he supposed her tl':'Q. tg,have been given by mistake for one whi<stle. TIle claimant's witnesses contend that the Orange, when she gav@.rhel'signaloftwowhistles, was heading nearly across the river"lJ.9-$g t4e tug weW911 her own starboard hand; and seeing side; .' . The disinterested witnesses, including the libelant's witness Wi!· son;i pildtofi to me t6. confirm the claimant's account.·..',rl;l,t'6'.er..'t.,.b.an that l 9ft.he.l.ib.elant·. '. The .we.ight Of. testimony . . so far at least M .that the ferryboat at the is time of: exchanging the whistles. was .heading well over towards the jlnd notab(),"ePavonia ferry. . The ferryboat least foUl' pomts across the cQq1d. not' heading, al;l the pilot of the tug testifies," i .his port quarter. · If the situation was such 'as the fug describes, to me iihpossibl'e that the collision jmmediatelyportedhis Wheel and could continue;f if"so until withi:ii''lOOQf200reet. of the He was going through the water at the full speed of 10 knots, besides a three-knot ebb tide, and he changedhiS'coursenearIy eight po-ints. Had the Orange been heading as he says· she was,she must have passed well clear of him to the eastward. ' 1. In the position which the weight of eviden-:e establishes, ·namely,itJut.:t, at itb& time: thesigna:ls were exchanged, the tug was well ij;lw:$tarbonrd.bQW Qf.tbie fen.-yboat,. it follows, whether the was tneady, dillectly ahead of the tug, as the libelant daims,d"r Qn,ber stl1rboarlil hand, astberespondent's witnesses ,!tha ;two w in such a wind and tide were a,.<!Qrl1eet and proper signal for lter to give,; and that the tug, ,if she didiD.otkeep.any ;nIOre to port in order to assist the ferryboat's maneuver, Wlmltt least bound .under rule 23 to do nothing to thwart or embarl'u$S ,it iby giving! signal, or by changing her course i .The :ling was Ught,unincumbered, and easily hand}ed;.;ffhe,oould in any, direction; and I must, ·hpldlher in fau:lt tor her contrary signal,and for her change and thW3,:Jlting maneuver without justification. For the cbange of course was $0 great as to show. that but for that change,n,QI/ coUlsion would have happened. 2. that the ferryboat was in fault because, as it is said, sl:w di.dQj)tstop and, reverse. The witnesses for the tug are mig,. taken 011, th1$point. The ·Pl"®fi is undoubted :that the ferryboat did stop andl'e'ver.se! immediately upon hearing the contrary.signal from the tug.. the OyClops says that.she slowed, but he did not think she reversed. The time that elapSed between the signal of the ,tJ1g. andthei ahort thatbuil: 1:Lttle reversalwaspOlSsible. The other: at the rate of about 14 miles an hour, or 1,400 feet per minute; and a'S they were distant only about 900 Or l;OOO"feetwhen the time between the signals and collision would be:,tint about 45 seconds. The
W;EBSTER V. DISHAROON.
engineer of the feFryboat testifies, that he got part of a turn backwards. In so short an interval I cannot find any substantial delay, or any neglect to reverse promptly. The collision arose, I think, wholly from the misapprehension of the pilot of the tug as to the expected course of the ferryboat; from his mistake in giving aeontrary signal, and from his change of course to starboard. Manifestly except for this, no collision would have· occurred. As the ferryboat had no reason to anticipate this course by the tug, and the moment it was perceived did all she could to avert the consequences of it, I must hold her without fault, and direct a dismissal of the libel, with costs.
WEBSTER v. DISHAROON. (District Court, D. Maryland. May 26, 1894.)
COLLISION-VESSEL NAVIGATED BY OWNER PRO HAC VICE-OWNER'S LIABILITY IN PERSONAM.
Master running vessel on shares, paying ali wages and expenses, and having sole control of navigation, Is owner pro hac vice, and for col· lislon resulting from· negligence of himself or crew the owner is not liable in personam. Thorp v. Hammond, 12 Wall. 416, applied.
This was a libel in personam for collision, filed by John P. Webster against A. O. Oalvin Disharoon. Thomas S. Hodson, for plaintiff. Beverly W. Mister, for defendant. MORRIS, District Judge. This is a libel in personam, brought by the owner of the schooner Ida Virginia against the owner of the schooner Margie J. Franklin to recover the value of the schooner Ida Virginia, which became a total loss because, during a storm, the schooner Margie J. Franklin dragged her anchor, and drifted down on her, and injured her so that she had to slip her cable, and went ashore. The allegation in the libel is that the Margie J. Franklin was not provided with sufficient anchors and cable to hold her in a storm, and that sufficient anchors were not put out on her, and sufficient cable was not paid out, and the collision was occasioned by a want of care and skill on the part of her crew. Prior to the filing of this libel in personam, the same libelant filed a libel in rem for the same cause of action against the Margie J. Franklin. The owner did not claim her, and did not stipulate, and she was sold pendente lite, but brought only $45, which was not suffi· cient to pay the costs. She was bought in for the benefit of her owner, the respondent in the present case. The answer, among other defenses, alleges that the schooner was not under the man· agement of the owner at the time of the collision, but was being run on shares by her master, George W. Webster, who was to reef"lve two·thirds of her earnings, out of which he was to provide and pay the crew and all her running expenses, and had sole control of her navigation; and that, said Webster being the owner pro hac vice,' the respondent, as owner, cannot be held responsible in personam for the damages resulting from this collision.