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THE CHEROKEE. THE HUGO. THE SUSAN A. MORAN.

(District Court, S. D. New York.

October, 1918.)

1. Collision <@=>64 — Steamer with Tow — Crossing Courses — Fault of Steamer and Tug — Course and Speed.

For collision of steamer with tow of tug, on crossing courses-,' steamer and tug held at fault; the steamer, the privileged vessel, for failing to hold her course and speed, and the tug for failing to keep out of the way.

2. Collision <@=>57 — Fault—Failure to Make Out Light.

The responsibility for failure of steamer, colliding, on clear night, with tow of tug, on crossing courses, to make out the side light, of regulation size and properly trimmed, on tug, held, as between steamer and tug, with steamer, whatever the reason for the failure.

3. Collision <@=>61 — Steamer with Tow — Fault of Tow — Side Lights — Custom.

Tow of outgoing tug, with which steamer collided, held at fault in not having side lights outside of harbor limits, as required by statute, notwithstanding custom not to change lanterns on staffs at ends to side lights, on crossing harbor line.

4. Collision <@=65 — Contributing Fault — Violation of Statute — Benefit of Doubt.

As to whether fault of tow, with which steamer collided, in not having side lights as required by statutory rule, contributed, the benefit of the doubt must be given the steamer.

In Admiralty. Suit by the Cherokee against the Hugo; the Susan A. Moran being impleaded.

Decree for libelant.

Libel in rein, by the scow Cherokee against the Danish steamer Hugo for a collision at sea. about three miles south oí a line drawn between Ambrose Light and the Scotland Lightship. The Hugo impleaded the tug Susan A. Moran, which was towing the scow.

The Hugo was bound for New York, on the evening of December 5, 1916. She passed Seagirt, about seven miles off shore, on a course north by east three-quarters east, and continued for a time not stated, later changing to a course due north, until about 4 miles from the line between the lightships, where she was bound to pick up a Sandy Hook pilot. At that time her master, Ilansen, came upon the bridge and changed her course one point east, north by east. Not long thereafter he made out, about two points on his port bow, the three towing lights of the Moran, bound from the Scotland Lightship south-southeast for the dumping grounds, with two scows in tow, of which the first was the Cherokee, on about 200 fathoms of hawser. The men on the Hugo did not, and perhaps could not, make out the starboard' side light of the Moran, though they say they looked for it a number of times. They therefore concluded that the towing lights were of a tug inbound, which had dropped its tow, which they could also not make out. Tho Hugo ported one point, so as to lay a course north-northeast; her idea being to go to starboard of the tug, thus passing under her stein.

Meanwhile the Moran and her tow were in fact constantly drawing nearer, and lien lights crossed the bows of the Hugo and bore on her starboard bow. Still tho lingo failed to make out tho Cherokee, which carried no side lights, as required by tho International Rules, but only two hand lanterns on staffs forward and aft. Having the Moran abeam, the Huge finally, and too late, made out the Cherokee about 800 feet off her port bow, and collided with her, doing the damage in question.

As the Moran begun to draw nearer, the Hugo reduced to half speed, and shortly thereafter to slow. She continued at each of these speeds 1'or about *852three or four minutes, and a short time before the collision, and upon seeing the Cherokee, reversed, but not soon enough, to check her speed altogether. Her explanation for failing to see the side lights of the Moran is that the pilot boat had been playing the searchlight upon her in the hope of getting a call for a pilot.

*851<@=>For other cases seo same topic & KEY NUMBER in all Key-Numbered Digests & Indexes

*852The Moran’s story is that she saw the Hugo some miles off on her starboard bow, first making out only her red light. Thinking to go under her stem- she ported slightly, hut not long enough to change the direction of the tow. At that time the Hugo shut out her red light and showed her green, at which the Moran starboarded back upon her original course till the time of the collision. The Hugo, she says, held her course clear of the tow, starboard to starboard, until abaft her beam, when with a sheer to starboard she turned into the Cherokee.

Pierre Brown, of New York City, for the Cherokee.

D. Roger Englar, of New York City, for the Hugo.

Samuel Park, of New York City, for the Moran.

LEARNED HAND, District Judge

(after stating the facts as above). [1] It is clear that both steamers are at fault; the Hugo for failing to hold her course and speed,-and the Moran for failing to keep out of the way. I attach no value to the Moran’s testimony of the Hugo’s change to port and then to starboard. She attributed her own movement across the Hugo’s bows to changes in the latter’s course, a natural enough mistake at night. At first she saw the red light, which warned her of her duty to keep out of the way, and this duty she did not observe. Her porting I question, in view of the Cerberus’ testimony, which was in her wake, and whose master says that she made no change whatever. If there was any change, it was not noticeable, and altogether insufficient. Once across the Hugo’s bow, she naturally saw only her green light thereafter.

[2] The Hugo’s first change frotn north to north by east I do not ■charge her with; the vessels had not at that time begun to navigate with regard to each other, but all her subsequent movements were wrong; that is, her further change to north-northeast and her changes of speed. Confessedly these were not on the theory that she was the privileged vessel on crossing courses, as was the fact. She did not make out the Moran’s green light, and I am ready to take her explanation that the searchlight blinded her, a most reprehensible feature to the whole affair. Still I do not understand that this is urged as an excuse for her. The Moran’s light was there; it was of regulation size and properly trimmed. If the Hugo was blinded, she should have •stopped dead at once. Whatever the reason for failing to make out the side light on a clear night, the responsibility as between the two vessels is hers.

■ [3] There remains, therefore the fault qf the Cherokee, which carried no side lights as prescribed. Some argument is made of the long custom not to change lights after crossing the harbor line. . I need hardly say that no custom can avail against the statute. Deep sea mariners need not charge themselves with local regulations outside of harbors. That is one reason for taking on pilots. They are not to be held to a knowledge that hand lanterns upon staffs indicate a tow in *853the wake of a tug. Looking for side lights, they will almost certainly be confused by the appearance of great numbers of tiny lanterns on the surface of the water, as was the case here, for a number of tows were following the Moran down. Whether the requirement to carry only side lights be onerous or not, it must be observed outside harbor limits; else entering vessels cannot possibly navigate to the harbor limits with safety. I cannot understand how this universal rule of the sea can be fey a moment questioned.

[4] Hence the scow can escape only on the assumption that her fault did not contribute. This position appears to me to be speculative. I do not believe that the scow was blanketed by the Cerberus, as the Hugo supposes; but, if she had carried regulation side lights, the steamer might have seen them, or might not. Who can say beyond a a reasonable doubt that she would not? Mr. Brown seizes upon certain passages in Hansen’s deposition to show that he said it would have made no difference. These do not give a fair understanding of his meaning. What he said was that lights like the hand lanterns, if carried as sidelights, would have been worse than the lanterns themselves. That I can well believe, but it does not follow, and he is careful to insist that it did not follow, that regulation side lights could, not have helped. It is true that he did not see the Moran’s green light, and the chances, perhaps, are that he would not have done better with the Cherokee’s, if she had carried one; but how can it be asserted beyond peradv enture ? Under the accepted test for violations of statutory rules, I must give the Hugo the benefit of the doubt, and hold the Cherokee at fault with the tugs. Certainly the Hugo was looking for a green light on the possible tow, as well as on the tug.

The libelant will take a decree for one-third damages against each steamer, and without costs.

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