THE lU.BTELLO.·
71
THE MARTELLO. 1 THE. FREDA
WILLEY WILSON
v.
THE MARTELLO.
et al.'v.
THE FREDA
(Diltriet Oourt, S. D. NeUJ York.
FebruarylM,l888.)
L
COLLISION-Foa-RATE OP SPEED-STEAMER NEAR PORT OP NEW YORK.
For steamer whose full speed is twelve knots. and which is near the eri· trance to the harbor of New York, in a thick fog, a speed of about. five knots is not the "moderate speed" required by article 18 of the new international rules: and she is bound to stop at once on hearing a fog·horn near, and nearly ahead.
A sQilingvessel in a fog. and in a situation where manr other vessels are likely to be met. is bound tQ moderate her speed to the lhmts of fair steerage· way. Held, in. this case, that four knots was immoderate speed in a sail·ves· sel approaching New York barbor in a thick fog. 8. BAME-BETWElllN STEAlil AND BAIL-'-'Foa-"MoDERATE SPEED "-BIGNAL WIDS' In the midst ofa thick fog the steamer M., outward b'ound :from New York. and a few miles outside of Bandy Hook, was steaming about five knots an hour, he'aded E. S. E. Thebarkentine W., headed nortb. and bound into the port of New York, was sailing about four knots, with the wind E. by N. Tbe fog·horriof the W. wail first heard by tbe steamer off her starboard bow, and afterwards, and as soon all the barkentine came in sight. w'hicb was at a ,. distance of.fItom 250 to 700 feet, according to the steamer's witnesses, t1le steamerwas stopped and backed. Tbe sailingvesselhad abouttbree·fourths of her canvas set; she made no effort to slacken her speed or do anythinl\' to avoid collision, at any time, though the whistles of the steamer were heard comingnell.rer. The barkentinewas struck by the steamer on her. port bow. Held, both in fault, for the rate at which they were moving in the fop:, under the special circumstance of the immediate vicinity of the entrance to New York harbor, where other vessels were to be expected. Held, further, that the barkentine was in additional fault for failure to check her speed on hear· ing the whistles. of the and the steamer in additional fault for not stoppmg as soon as the salling vessel's horn was heard; but not in fault for not indicating her course by Whistles. TLESOPTIONAL-,:-APPOBTIONMENT.
2. SAME-SAILING.
In Admiralty. Libels for damages.
Fo8ter &:' Tlwmpson, for the Martello. Goodrich, Deady &:' Goodrich, for the Willey.
BROWN, J. On the 8th of May, 1887, the steamer Martello of the Wilson line, 370 feet long, and 2,439 net tons, bound from New York to Hull, came into collision, a little before 8 o'clock in the morning, a a few miles op'tside of Sandy Hook, with the barkentine F. A. Willey, bound fromPepsacola into the harbor of New York. At the time of the collision, ,a, thick fog preva.iled. The wind was about east by north, and the bllrkentine headed north, on her starboard tack. The steamer was heading' E. S. E., and struck the barkentine on her port bow, crushing in he!; timbers, and briD;ging up against the keel and bowsprit,
JReported by Edward G. Benedict, Esq., of the New York bar.
FEDERAL. REPORTER.
which were knocked to starboard. The injuries to the Martello were comparatively slight. The aho;vecross-libeiswere filed oy the respective owners to recover their damages l each alleging that the other was going at too great speed in a fog, and maintain ia proper lookout. The as a f;tult against the Martello, that she did not indiWilley also cate by her whistles which way she would tutn:l and the steamer also nQtprQperly sound her fog-horn. charges that It is impossible to hold the collision in this case the result of inevitable accident. The circumstances are not sufficient to show that it could not have, qeen avoided. by the use. of reasonable prudence, diligence, and Ilautical'slrill. TheJ((d,rning ,lAght,2 Wall. 550 , 558. The case is · however, somewhat peculiar l in that both vessels were going at a .comparativeli low rate of speed; thnn hns usually, in cases of collision in 'a fog, been found to have been the speed of one or the other of the vessels. Each side accordingly claims that the speed of its own vessel was within the limit required by'the rules of navigation; and each, no doubt, in .respectl Il1likes somewhat close case. Upon repeated consideration, howeverl I am satisfied that neither vessel discharged her whole duty in this respect, having reference to the. special circumstances of the situatiOl\',The spe,ad 9f the Martello is to be deduced partly from the direct testimonYl a.nd partly from the ,distance run l andthe time that elapsed after discharging the pilot It little totbe westward of the perch and ball buoy until the On tbis subject there is a great amount of testimony;' and in the latter 'stages of the cause an endeavor was tillide on the part I,>f the steamer to weaken the force of the previous.evidence of her officers:l aIid of the entries in the engineer's .logl as well as-the private entries of Maider, the second. ellgineer. There is nothing,th1l-t I can find, however; in this later evidence, that deserves any greater confidence than previously given,and the'. entries referred tal which are verified with perfect clearness and poshiveness bythe witness who made them at the time.. The case, on the part of the steamer,:is l in many respects-such as the alleged errors of the log, the alleged dead slow gpeed l the need of keeping steerage-wayrand her being nearly stopped at the collision-similar to that of The Dardogne, 10 Prob. Div. 6, in which the steamer was hEild liable. In t:JAat case l howeverl there were some circumstances favorable to the st.eamer that are not found here: Without discussing the details ·of,th'eevidence l ,the most reliable testimony, including that of the master, satisfies me that the pilot was discparged. at least half.a mile to the of the perch and ball buoy l i. e' l about north from the black buoy No. 1; that the engine was stoppedat 7: 03 A. M., for the purpose ofslowirtg the vesseL until the pilot' could be discharged; that the pilot left l and the engines were again moveqslow ahead l at 7:10; that the place of collision, best fixed by the pilot Wolff, one and three-fourths ,miles from N. to N.N. E.l-say about'N. by E. froin Sandy HobklightFship',' -,-and 'upwards of four knots from. the point where the pilot was disL charged; that at 7: 50-40 minutes after the pilot was discharged';""'tlie engines were ordered full speed nstern l when the barkentinewas first
THE MA.RTELLO.
73
seen from 600 to 1,500 feet distant; and that the engines continued full speed astern till about 7:56, soon after the collision; were then slowed, and were stopped at 7: 58. This would make the speed of the steamer, when first seen, from five and a half to six knots. Again, the full speed of the steamer was about 12 knots, with about 58 revolutions. The engineer testifies that at 7: 10, when moving slowly ahead, she was put at 28 revolutions, and at 7:20, when ordered to go as slow as possible, the engines were put at 24 revolutions. As the "slip" is less when the vessel is running at slow speed than when running at high speed,24: revolutions should, I think, give a little over 5 knots. White, Nav; Arch. 548. From the second engineer's entries, moreover, and from the estimates of the witnesses, it would appear that the engine must have been backingfnU, speed for about two minutes before the collision. Tht' estimated time from the order to reverse to the collision is put at not less than from. two and a half to three and a half minutes. As this was B,new steamer with all the modern appliances, "her gear working quick," no such length Of time forgetting the engine reversed after the order, to reverse was given, can be admitted, as was estimated upon the in;the case 'of The Lepanto, 21 }l:ed. Rep. 651; 653; One-third of a minUte'is more than sufficient iIi a steamer modern assuming a reasonably prompt 'obedience to orders, and that the vessel was running "slow." No delay in reversing fully and at once is in. that case necessary. Had the steamer not been going over four knots when the order to reverse was given; and if that order was properly obeyed, she would havEl been very near if not quite at a dead' stop at the time of collision... See The Aurania, 29 Fed. Rep. 121, note. It is not claimed that sMwaswholly stopped, and the depth of the wound in.the bow of the Willey. and the great swing of the Willey's bows to the southward, are sufficient evidence to the contrary. Mr. Wolff, the expert and mechanicahngineer, estimated the speed of the Martello at tbe collision at not over two knots. Upon aU the other testimony, I shouldarrive at aboutthe same conclusion, and such is the first officer's estimate. I do not regard that speed as insufficient to cause the injuries proved to have been inflicted upon the Willey. The length of time that she Was backing without Teducing. her speed below two knots at the moment of collision is strong corroboration of what is to be inferred from the other testimony, that she was going from five to five· and a half knots when the order to reverse was given. The pilot, Wolff, who was acquainted with the handling of the steamer, testifies that if previously going only five knots, and if her full speed were twelve knots, she would be stopped dead on reversing the engines full speed in going from 200 to 250' feet. H this estimate is accurate, the steamer would have been backing full speed only about one minute. I think the estimate too small; and that ,she was backing ,fr.om a minute and a half to two minutes,reducing her speed from or fiv.e and a half knots to. about two knots, in going fromona to two lengths. I cannot hold a speed of about five lmots under the special circumstances of this case to be such "modetatespeedr Il,S toJree the'steamer from blame. There was special need ofvery great
the sreamer's course in ashol.'t.distanoe 9utside of the bar,was.likety;to, enc.ounterincomin,g vesselS, and because the lightening up on ,the morning Of the8;t\'l of the hich had prevailed the previous -day" wllslikely to bring many vessels nea,r the entrance of the harbor;' and; tbelMrns of' other vessels were in fact heard. It had been clear in the morning, but had again shut down thick soon after the pilot left, about 40 minutesbefol'e.tl1e collision. The engineer, indeed, says. thatthe Malltello had only steerage-way, but he was not the proper officer to testify tosuch'a fact; and from his own testimony it appears that the engine could hll.vebeen run more slowly than 24 revolutions.IUhe fog was.sothiok·that the Willeyoould not be. seen. more ·than from: 250 to 700 feet; as most of the Martello's witnosses testify, her speed was not" moderate," within the decisions; because: she could go slower, arid it.was·impoSlible,:with that speed,toavoid any approachColorado, 91 U.S.692;TMp'tYl:n8yl1Iania, Wall. 133; TktNO£Oochee, 22 Fed. Rep; 855,,28 Fed;;.Rep. 462; ThePottBville; 12 Fed.Rep·.633; McCabe v. SteamrSh/ip Co.:, 31 .Fed. ": ,. . . Rep. 234. In the thick fog that prevailed, and in the .ex.pectation ofvesselsapproachingNew York harpor, which ought to have been anticipated,'it was the further. duty ofthtr steamer to stop her: engines at once when .the fog-hom olthe Willey'was first heard·. off her starboard bow. From the direction of the wind it, was"to be inferred; that' the sailing. vessel whose hQm was, heardwasprbbablycrossirig the' steamer'scour:se. It was plain;th,at the hom cowd luotbe far off.:, ",until the position and cour:se of the'veaselwhose fog-horn heard near.were definitely known, itl was incumbent on the steameI:to stop her engmes,:and to do so at once. 'l'he·Lt!panroi 21 Fed. Rep. The Jilisher,21HoW'.1;6; The Oity,o! Atlanta, 26 Fed.' Rep.· 461, 462, and cases there cited; The Ebor, 1l,Prob. Div .25; The JihJ,nkland, L. R.4P. C. 5·29·, 533, 634; The Dordogne, 10 Prob.Div. 6. In tb.{il cal;je of The Ebor, the steamer, though going at' the rate of from three· to three and a half, knots orily, Wlls held in ,fault because s1:;le'did not stop' at once on hearing thefil'st signalfrom the other vessel. According to the' 'of the witnesses for the Martello, the time was 'doubtless qu:it'e short! between hearingthe first horn from the Willey lind her coming into view. '!But it is evident that there was some interval. Tho lookout of the Martello in the crow's' aI1done oltha men on the forecastle estimate Hat least one "The master, andtbe first the forecastle, both heard·the horn; but it is clear that tbe'orders II hard a-port," and Hreverse the engine," were not given until',after the mate had Be6n the Willey on the starboard bow f and or'dered hard a-port. I Botkwere' 3skedwhat they did upon hearing the hom; 3nd the,answeris only as to what was done' after the Willey WIlS .en, ·wheilthemate's orderwaB given immediately. In another pla.ce the mate "1 sung out thefog':horn firstjand, asahe came in sight,: I sung out,l·harda-port.'" Alldhese circumstaneespoint intervalllfter the fog-hom was heard near and linearly ahead,' as the witnesses says; and before the order to stop waBglven.' It <
, i THE,
MARTELLO.
75
appears further ,on that the two :men on the forecastle with the nlli\tl" were !!lore or, less engaged in overhauling the chain and aochor,,,,hich the first officer was superintending. 'rhiscircumstance, tQgether with the very much less distance at which they estimate the Willey when first seen, than the estimate testified to by all the Willey's witnesses, afford ground to doubt whether as sharp a lookout was kept as was required. Upon these various considerations, the Martello must be held to blame. 2. The Willey's speed was estimated by the Martello's witnesses at five knots, but by her own witnesses at only four. The latter are sustained by the rate given by the pa.tent log. The breeze, it, is true, was estimated'as a five or six knotbreezej but the Willey was well loaded, and had only about three-fourths of her canvas set, it having been reduced by hauling qp ,the, foresail as the breeze freshened. I think .that she was not making much, if any, over four knots. By article 13 of the new internationalrules, the duty to go at "moderate speed" in a fog is imposed equally upon sailing ships and on steam-ships. "Every ship," says the rule, "whether a sailing ship or a steam-ship, shall, in a fog, mist, o;r falling snow, go at moderate speed." Prior to the adoption of this article the duty of sail-vessels to slacken speed in a fog or in thick weather had been recognized and enforced as a rule of prudent navigation. In the case of The Johns Hopkins, 13 Fed. Rep. 185, where, upon a collision in a fog between a steamer going at three and one-half knots and a sailing vessel going twice as fast, the collision was held solely the fault of the sailing vessel. It was also applied in this court in the case of The Rhode Island, 17 Fed. Rep. 554, where the schooner was held in fault for sailing in Long Island sound in a fog at the rate of seven knots. In navigation in the open sea or on the lakes, where other vessels are not to be specially looked for, a rate of four knots for a sai}.vessel has been held not a fault. The Colorado, 91 U. S. 692; The Leland, 19 Fed. Rep. 771. In 'l'he Elysia, 4 Asp. 540, a. speed of five and one.half knots in a fog, it is said, would not be moderate. In The Zaduk, 9. Prob. Div. 114, Enga speed of five knots was held not moderate speed in a fog in lish channel. In The Victoria, 3 W. Rob. 49,a speed of six knots, in,a dark night without fog was held immoderate. The same in The Pcppel'ell, Swab. 12. In all these cases the sailing vessel was held bound to heed all the special circumstances ofdanger, and to moderate her speed accord-" ingly. In the case of The Zadok, supra, Sir JAMES HANNEN, the president of the admiralty division, held it thedutyofthe sailing vessel in a thick fog to moderate her speed down the of sufficient way to control her xnovements,--:-"tp as low 'a rate as is cont'istent with keep:inga good 'I'his. duty was affirmed by Lord ESCHER in the court of appealin the case of The D01'dogne, 10 Prob. Div. 6, 12, where he says: "As the steamer, by her whistles, is perceived to be coming nearer ina fog, tQl'l sailirigv,essd ought, under full sail, to take as is possible sail off, until she brings herself as nearly to a wQ.ilstbeing .In The Ebor and other cases, supra, similar language is as to th.e duty of steamers.
to
FEDDAL BlllPOltTER.
In the present case the circumstll.hces above referred to required special caution on the part of the sailing vessel as' Wtlll as of the' steamer. The speed which would have been moderate and justifiable farther out at sea, was imprudent in a thick fog, just outside of New York harbor, at a time and place when many other sailing vessels were to be expected to be approaching, and steamers to be departing upon courses crossing the Willey's at nearly right angles. The Willey had about three-fourths of all her canvas set. She had by no means brought her speed "down to thes'tandardof good steerage-way." On the contrary, she was going at nearly full speed. She hauled up her foresail a while before, not to diminishher speed, but to avoidinGreasing it, as the breeze was freshening. ,fFour knots for her was 'equivalent to eight knots for the steamer, relatively to her maximum speed, as well as to her ability to keep out of the way of other vessels that she might be bound to avoid. Two such sail-vessels crossing at her speed in'such a fog would be likely to come ill collision in spite of anything that either otboth could do after they had sighted each other. SMh navigation was not prudent or reasonable, and 'therefore not "moderate" in a'situation where many other ships,....... sail-vessels as well as steamers,"":"were likely to be met, some of which it rnight be her duty to avoid. She was bound, in such a place, to moderate her speed within the limits of fair steerage-way, so that she could dohetshll,re in avoiding collision after the danger of it was perceived. As observed in the case of The Q;hode Island, 17 Fed. Rep. 554, 559, if the speed of the sailing vessel would not be prudent or justifiable or moderate, as .respects other sailiug vessels that she was likely to meet, and out of whose way she would be bound to keep, the same rule must be applied, and her speed be held not moderate, though the other vessel be a steamer. Though she may have the right of way, she has no right to increase the burden that falls on the steamer to keep out of the way. It was a fault in the Willey that, after hearing the steamer's several whistles coming nearer, she did not even then take any steps to check her speed or do anything to avoid collision. In the case of The Zadok, 9 Prob. Diy. 117, Sir JAMES HANNEN says: ',"Though thewhistle of the Iduna was heard once, and twice, ;1nd thrice, yet'no precaution whatever was taken on board the Zadok to guard against a' cOntingency which she was warnedtnight happen of a steamer being in sitionwhich' caution. Tam aqvised that what ought to have been done. was. this: that men should have been stationed· so as to work 011 .the qraces. a.nd put the forer,lail abacl& 1>,1 letting them fly; they would cQme at w,oulli teudto throw off the Ship's head, by putting helm to)tarboartl;and, when the vessel w8,sseen, If< If< If< there would have beetltime'lbr them to effectuate that maneuver, which might have had the effect of a the collision altogetber. Instead of, that, no preparation was made, to. db anything on boa.rq the' Zadok. Those on board seem' to have tbought a sailing vessel, and the other being a steamer, the forrneJ;.had a rdght. to keep hef COUfse. and do nothing. That is the view I . take, ,'.! " the' : ,.I- . - , , 'be. taken." nor . I am advised should . . ,',. ., in the main appIlcable to the present case; and as respects the right of the sail-vessel to hold her course, as against 11
THE .tAMES R. BREWSTER.
77
steatr.er, the supremeconrt in Peck v. Sanderson, 17 How. 178, 182, say: "Where, as in the present case, they are brought suddenly and unexpectedly close to each other, and the ordinary rules of navigation will not prevent a collision, it is the duty of each to act according to the emergency, and to take any measure that will be most likely to attain the object." The master states that he would have ported his helm, and could have avoided this collision, if the steamer had given him their signal whistles to indicate that she was backing; and it is charged as a fault against the steamer that she did not giv-:. these signals. But, as article 19 of the new regulations expressly declares that the "use of these signals is optional," it is not in itself, independently considered, a fault that they were not given. Notwithstanding t4e fact, howey.er, that the signals are made optional, when their great utility in promoting a mutual underunstanding; bet;ween ,a steamer and a sailing vessel comes to be derstood, it :p1l\.ythen be.a legal duty on the part of the steamer, as one of the of reasonable prudence, to givethose signals,whenever thesituatipn is suph that the, steamer cannot alone avoid collisiOJ:;1, ,and when the knows, or ought to know, that the other vessel, guided by such signals,bul not without them, might safely change her course So as to, avoid disaster. I do not need to pass on that question now. In the situation of these two vessels, the master of the Willey, withorit knowing whether the steamer intended to go ahead of him or astern,or even ,whether she. had her engines, (in, which latter case the steamereould not materially change her cour,se,) Qouldnot prudently change his own course in time to be oiany service. I cannot, therefore, hold the Willey in fault on that ground. The cases in which steamers fail to hear the fog-horns of sailing vessels until quite near are too frequent to wafrant the inference that the horn was not properly blown, because not sooner heard. For the Willey's speed, however, in that situation, and for her failure to attempt to check it after the approaching whistles of the steamer were several times heard near in the thick fog, I must hold her to blame; and the damages and costs must, therefore, in both cases be divided.
THE JAMES
H.
BREWSTER.
THE CHAMPION. THE LAWTELLE. THE JAMES
BREWSTER V. THE CHAMPION et
al.
(District CO'U'l't. E. lJ. Penmylvania. February 7, 18fl8.)
TOWAGE-GRoUNDmG OF Tow-BURDEN OF PROOF.
A barge was grounded, while in charge of a tug, without any fault of her own. If the accident occurred where the libelant's witnesses say that it did. it was at a place which was known to be dangerous. The defense claimed that it occurred in the customary channel, and in consequence of extraordi-