THE JOHN KING.
469
produced a serious leak and subjected her to the danger of sinking. The tug Ivanhoe, being near by, went to her assistance, and by vigorous pumping kept her afloat. The only apparent means of saving her was by continuance of the pumping until the tide arose, and then running her on the flats, higher up the river. Later in the evening other tugs came to her aid, but she was left in charge of the Ivanhoe, with the understanding that the latter would put her on the flats at high tide-about midnight. When this time came, however, the Ivanhoe deemed it unwise if not impracticable to move her in the night without assistance., The injury was found to be so serious and the leak so great, as to make1t necessary to continue pumping while she was being moved. The Ivanhoe could not tow and pump at the same time, and no assistance was at hand. Evell with assistance, however, it is doubtful whether it would have been wise to attempt placing her on the flats at night. rhe"pumping was therefore continued until next morning by the Ivanhoe, when the Mascot came to her aid and kept it up until the tide arose in the afternoon. The barge was then run upon the flatsone of the tugs pulling and the other pumping. The charge is for the time occupied in pumping, alone, at the ordinary price. per hour. The only defense stated in the answer is,ihsubstance, that the barge should have been placed on the flats at night, and the necessity for further' pumping avoided. It is admitted as I understand, that the sum charged is not excessive, if the continued pumping until the next afternoon was necessary. It does not seem, indeed to be seriously contended that the barge. could have been moved with safety earlier than she was, without assistance. I deem it entirely clear that the Iva,nhoe alone could not have moved her; and it is doubtful whether she could have done so safely at night, with assistance. The claim must therefore be allowed-which with interest amounts to $262.20. A decree may be prepared
mgty.
HAMILTON (CircuU Oourt
et al.
tI. THE JOHN
Knm et ale
of Appeals, Second OI.rcu1.t. December 14, 1891·
.L
CoLLISION-MuTUAL FAULT_EVlDBNOE.
A propeller when passing up North river opposite Eighteenth street, New York city, .observed a ferry-boat leaving her slip at Twenty-Third street, sounded two blasts of. her whistle to the fel'ry-boat, indlcatlng her to oross the bows of the ferry-boat, as required by rule 1 of the supervising inspectors, and put her helm somewhat to the starboard, and, after running a short distance under her starboard helm, sounded tw;o Diore blasts to the ferry-boat. The ferry-boat did not hear any of the signals of the propeller, the last of which was given when the vessels were about a quarter of a mile distant, and therefore did not respond to them by rule 2 of the but, 8t the SlIme 'time with the last siggal of the propeller, blew one blast, Indicating her purpose to pass to the right 'of the propeller. Neither vessel changed her course after the giving of these signals, un-
4:70
FEDERAL REPORTER;
vol. 49.
to '!e determined by the rules of. the navigation act j (Rev. 8t. U. 8. S 4283,) and,that havmg the propeller on hllr starboard side, and being entitled to keep her COU,l"Se: as provided by rule 28, and the propeller being required by rule 19 to keep out of the way, the ferry-boat could not be held liable with the propeller for the collision that ensued, even if she had h&amthe signals of the propeller. S. BAM:IIi-CONJ'LIOT Oll' LOCAL AND FEDERJ.L NAVIGATION RULES.
\!1 tQC> late to aVllld · colltslon. Held, tbat the propriety of the course of the ferry-
a.
The rule of the supervising inspectors governing navigation in New York har bor,that a steam-vessel approaching another on a crossing <X1urse. so as to endanger shall signify by a blast or blasts 'of the whistle what course she proposes to take, cannot be held to deprive the vessel which Is on the starboard side of the other of her right to keep on her course, as provided by rule 23 of the naVigation act, (Rev. St. U. S. S 4288.) ,
Rule III of the navigation act (Rev. St. U. s. 5 4283) proVides that every steamyeasel approachIn" another so as to involve risk of collision shall slacken her speed, aDd; if Decessary, reverse her engines. ,A.fter the propeller signaled her inten\ion tooross the bows of the ferry-boat, there was an interval of 80 seconds, during which the ferry-boat had a right to expect that the propeller would make the proper movement to avoid collision. by altering her course to starboard, In which case ii , would have been as to as to go forward., Held, that the ferryboat was not at fault fot'not reversing her engines until it was clear that the propeller did Dot intend to alter her course.
BAMJI-oRBVBRSING ENGINBS-EVIDBNCB.
"Rule 28. Where, lJyrules seVl'nteen, nineteen, twenty, and twenty-two, ODe of two vessels shall keep out of the way, the other shall k.eep hl:!' course. subject to the qualifications of rule twenty-four." Peter Cantine, for libelants. George Bethwne Adam8, for claimants. Before WALLACE and LACOMBE, Circuit Judges.
W ALLACE, J,udge. The merits of this .cause are involvell in an irreconcilable conflict of testimony, and the only facts thatare conclusively established;bythe proofs.are that on the evening of DecelJlber5,1888, & collision took place in the Hudson river between the propeller Thomas and .the rerry-b()at John King, both that the collision tOok place near the mlddle of the river, off Third street, andab()ve Twehty-First street; that the were properly.' set and burning;. that the weather was fair a.Qd the Jide was at the last of the ebb; and'that before thecol1ision both vessels were going at a speed of about 12 McManus the river, bound for Coxsackie. and, the' King across the river 'westwardly, preparatory tc>
471
turning to the southward, going from her slip at Twenty-Third street; bound for her slip in Jersey City. The trend of the river is nearly due north until within about half a mile below the place of collision; from Twenty-First street its trend for several miles is north-north-east, and the width of the river at the point of collision is about thre'e-quarters of a mile. The lipe! alleges, in substance, that while the McManus was proceeding about ihthe middle of the river, but heading a little to the west.: ward, and when about opposite Twentieth street, she observed the John King leaving her slip, and thereupon l>lew two whistles to the ferry-boat; that the made no reply; that she then immediately blew two more whistles to the ferry"boat, and,receiving no reply, stopped her en:· gines; that the ferry;.boatkept on atfull headway, and when near the McManus blew two whistles and starboarded her helm; that the McManus then blew three dangeHv1:listles; and that the ferry-boat kept on at full speed and struck the McManus abaft of 1;Didships on the starboard side. The besides denying the averments of the libel, alleges in substance that, as the ferry-boat left her slip, several sailing-vessels and were proceeding up the river, along the New York shore; that somewhat aEitern of them; and a little further out in the river, the McManus was observed, bearing a little off her port bow; that her helm fro n1 the time ofleavingherslip was kept to port in order to pass the vessels and'the McManus; that thereupon she ble,wa single blast of her whistle to the McManus; that the McManus, instead' of answering with a proper 'signa.l, commenced suddenly to sheer to port, directly across the course olthe ferry-boat,and blew several blasts,' 'of her whistle; that thereupon the ferry-boatga;ve two whistles, starboarded her helm, and stopped. and backed, but that the stern of the McManus swung rapidly towards the ferry-boat until her starboard quarter struck the stem or sta.rboard'bow of the ferry-baitt. Without attempting to review the evidence, we think the proofs show that the propeller was p,n the eastward of the middle of the river, and, in rounding 'the bend from Fourteenth to Twentieth streets, had swung somewhat to the eastward of the trend'of the river; that, when she was about opposite Eighteellth street, she observed the ferry-boat just starting from her slip, and' sounded two blasts of her steam-Whistle to the ferry"boat, and shortly after put her helm somewhat to the starboard; that after' she had run a short distance, and under her starboard helm had regained a course about north-north-east, she sounded two more blasts of her steam-whistle to the ferry-bQat; that the ferry-boat did not hear either ofthose signals from the.propeller;that there were several vessels going northward below, opposite and near the slip of the ferryboat, and in leaving her slip she had to make a detour to the starboard to avoid' Slome of them j that when she got ollt about 1,000 feet into the nver, having cleared these vessels and straightened on her course to the westward,and somewhat .southerly, ahegave the propeller one blast of per steam-whistle; thissigpal was given at about jhe same time the second, propeller was ven, ·. and the, V6$sels Were then about
472
FEDER4L. REPORTER t
voL 49.
1,200 OJ.' 1,400 feet apart; that the propeller did not hea)' the signal of the ferry-boat; that neither vessel changed her course after the giving of those signals until the propeller gave alarm signals, and slowed and stopped her engines; and that then the ferry-boat answered the alarm signals or the propeller, and immediately stopped, and reversed her engines and starboarded her helm, but the vessels were then so near that it was too late to avoid collision. the second signal of the propeller was given, she had the ferryboat on her sta.rboard han!!, .about a quarter of a mile away, and the vessels w.ere on crossing cc;mrses, ,so as to involve risk of ,collision in case the pr()peller.did not so govern her conduct as to avoid the ferry-boat. It was herduty,under sailing rule 19, to keep out of the way. and th e duty of thtl rerry-boat, undef rule 23, to keep her course. The red light of the ferry:"boat was plainly visible to the propeller, and there was nothing in the the 1&tter,from passing astern ferry-boat. She had conch1<1,e4 previously to the bow of the ferry-boat, but had consent fr01n ferry-boat to such aeourse, and there was abandon thAotpurpose and go astern" .The latter course S/l.fe, the formeJ.' qoubtful; and, quite of any rule was of. the sup.ervisipg inspectors, common prudence relluired her to adopt the safe and pass astern. She cannot invoke the aid of any rule ofthesuPEirv.ising inspectors to justify her departure from duty without showing tbather proposition to depart. was and accepted by tb,eferry-boat. ,If, by her signals, she ·invited. a departure from the rules of navigation, she took the risk, both ofher own whistles being beard, in turn of hearing. the if a response was madEl.The St. John, 7 Blatchf. 220; The Milwaukee, 1 Brown, Adm. 313. The propeller was. clellrly in fauIt. The learned ,district judge from whose decision this appeal is brought, thought the first signal from the propellel.' was given when the two ves.selswere somewhat further apart than we find them to have been, and was given when the propeller was off about Fourteenth to Sixteenth al:! the ferry-boat was leaving her slip. He. found both vessels in fauIt,and decreed a divisionaf the loss; holding the propeller in fault for undertaking to go to the left, or across the bows of the ferry-boat, instead of to the right, or under her stern, as required by the rules of the supervising inspectors; and holding the ferry-boat in fault for not answering the first signal given by the propeller, or giving any timely signal he,rself to the propeller to denote her own intentions, as required by rules 1 and 2 of the inspectors. As we und.erstand. the rules. the supervising inspectors, they mean to steamers at all tImes, when passing or meeting at a distance within a half mile of one another, to give and answer sig.nals by blasts of the steam-whistle to indicate what course thev prOpose totake; and the signal which indiCates a purpose to pass to the right Of the other is one blast, Rnd that which indicates a purpose to pass to the left of the other is two blasts; and, when the roles say the other steamer shall promptly anwer a signal, they mean that the answer shall be one which indicates her proposed
THE ..TOHN KING.
473
mean that the answer shall be one which indicates her proposed course. Rule 1 prescribes that the answering steamer "shall answer promptly by a similar blast of the steam-whistle." If this means that she must give a response indicating that she will conform her movements to the proposed course of the other, we think the rule transcends the authority of the inspectors. We do not mean to he understood that the inspectors may not lawfully require a steamer to give a signal to another indicating that she observes her, and proposes to perform her duty properly in passing or meeting; but the inspectors cannot lawfully require the other steamer to assent to a departure from the statute in cases covered by the rules of navigation as enacted by congress, and the inspectors' rules are not to be construed as meaning to do so. When vessels are meeting head on, or nearly so, they are under an imperative obligation to pass to the right, by the law of congress, unless some special circumstances justify a departure pursuant to rule 24; and neither can be obliged to depart from the statute at the request of the other. So, when' two are crossing so as to involve risk of collision, the vessel which has the other on her starboard side must keep 'out of the way, and the other must keep her course, unless a departure is necessary pursuant to rule 24; and the vessel which is required to keep her course cannot be compelled to depart from it at the instance of the other. The rules of navigation enacted by congress are obligatory upon vess{'ls approaching each other from the time necessity for caution begins; and from thattiiIle, as the vessels advance, so long as the means and opportunity to avoid danger of collision remain. Until the necessity for precaution begins, obviously; there can be no fault on the part of either vessel,-rules of the inspectors to the contrary notwithstanding,-of which the other can justly complain. If a proposition is given proposing a departure by one vessel, and is consented to by the other vessel, undoubtedly the former is justified in assuming that the other underi!ltands that a departure is to be attempted, and will govern herself ao" With this understanding of the inspectors' rules, we cannot see that the ferry-boat was in fimIt. She did not answer the first signal of the propeller, because she did not hear it; and she was excusable for not hearing it, because her attention was necessarily distracted at the time by the other vessels, which she was obliged to avoid in getting out into the river from her slip. The signal she gave to the propeller when she got out into the river was the proper signal, viz., one blast, to indicate that she proposed to keep to the right. If she had heard the second signal of the propeller, she could have done no more by way of a proper answer, and would have been under no obligation to give a different signal. This signal was given at a time when there was yet opportunity for the propeller to alter her course to starboard and pass astern. If we :should that she heard the propeller's signal, or ought to have heard it, and should have answered it by two blasts of her whi8tle, we (10 not see how the propeller was misled by the conduct of the ferry. boat. We not think, h(lwever, that, if the ferry-boat had heard the pro-
474
I'EDERAL' REPORTER,
vol 49.
peller's signals, her failure to answer them would have been, culpable. in its legal aspects, is quite similar to that of The B. B. Savm,. ders, 28 Blatchf. 383, 25 Fed. Rep. 727, in which the court used this languag,,: '''NotwIthstanding the inspectors' rpgulations, therefore. the pilot of the Saunders was not bound to assent to the movement proposed by the Orient nnlessdue J,'egard to the particular circumstances of the situation required a. departure from the ordinary rule. Consequently, his failure to answer the signal of two blasts of the whistle from the Orient WH8 not culpable, unless it was apparent that the Orient could Dot safely pass astern of the Saunders."
In the present case it was not apparent that the propeller could not it was apparent that she could do so. pass astern of the ferry-boat, Inasmuch as the ferry-boat knew that the propeller proposed to cross . her bows, and that unless the latter changed that purposethe situation involved risk ofcollision, the question arises whether the ferry-boat ,should . not have stopped and backed, in obedience to the requirements of rule 21. 4sthe vesseJswere nearing each other at a speed of 2,500 feet a minute, there was but if any more than 30 seconds between safety the second signal of propeller. But there was still and an interva,l, during which the ferry-boat had a right to expect that the propeller would make the proper maneuver to avoid her; and, as she could not know that the propeller would not alter her course to starboard, it would, have been aspe,rilous for the ferry-boat to stop and back as to proceEld. We .think that she properly delayed stopping and backing until it became obvic;>us that the propeller was not going to clear her; and, in the short intervening distance, this was not obvious until the propeller gave the alarm, signals, and then .the ferry-boat did all that she could. The case is one for the application of the rule. that a vessel whichls. primarily in fault for a collision cannot shift its consequences in part upon the other vessel, without clear proof of the contributing fault, of the latter. Her .own sufficiently accounts for the disaster. TM Comet, 9 BIatchf. 323. There ,be a rev lJ;'sal, and a decree dismissing the libel, with costs of the. di$trict co.urt and of this appeal to be paid by the libelants. ThecaW!Je is remanded, with instructions accordingly. '
THE
c. a;
476
TaE C. R. STONE. 1 NEW
Yon
HARBOR
&
Co. ".THE C. R. STONE.
(DisU'Wt Court,E. D. New York. February 18,1892.) CoWSJON-BATTEBT, NEW WAY.
You HARBoR-RoUNDING TO--INSISTENOB ON RIGHT OP
The steam-tug Btone, with a tow, was rounding the Battery from the East to the North river, keeping within 200 or :<50 feet of the Battery wall. The steam-boat. Fletcherhad come down the North river, and was roundinl{ to against the ebb-tide, to make her usual landing near the north end of Castle Garden dock; When the Fletcher began -to turn towards the. dock, she whistled twice, indicating that she would cross the Stolle'S bow. ',l'his signal the Stone heard, but did not heed. though her pilot knew tbe landing place and purpose of the Fletcher. The Fletcher repeated her signal, to which an answer of two whistles was given by the Stone. The Stone's tow struck the stern of the Fletcher. Hetd, (1) that the Fletcher had the right to make her landing, and the Btone, navigating unnecessarily near the shore, was bound to give way to her. when there was no diftlculty in doing so, i. e., by atarboarding at the Fletcher's first signal, and she was in fault for not doing so; (2) the Stone was further in fault for her failure to keep any proper lookout, especially when roundinlt the Battery; (3) but the Fletcher had no right to run into collision for the enforcement of her right of way. and her continUing on without awaitinR the Btone's acquiescence ill her first signal of two whistles was a fault, which rendered her also liable for the collision.
In Admiralty. Suit by the owner of the William Fletcher to recover for damages by reason of collision between the Fletcher llnd a barge in tow of the tug C. R. Stone. Wilco:t, Ada'l1Ul & Green, for libelant. Carpenter & Mosher, for claimants. BROWN, District Judge. At a little after 6 o'clock in the morning on May 11, 1891, as the side-wheel emigrant steamer William Fletcher was coming down the North river and rounding to against the ebb-tide to make her usual landing near the northerly end of the Castle Garden "dock, her stern was run into and damaged by a barge lashed to the port side of the steam-tug C. R. Stone, which had come out of the East river, and was keeping up along the shore at a distance of only 200 or 250 feet from the Battery wall. Before rounding and when a considerable distance from the Stone, the Fletcher gave a signal of two whistles, which was heard but not answered. The signal was repeated, to which an answer of two whistles was given by the Stone. The captain of the Fletcher testifies that being headed previously about south, he did not begin to round until the Stone's answer of two whistles was heard. The pilot of the Stone testifies that when the Fletcher's first signal was given, the Fletcher had already turned towards the Castle Garden dock, and was heading about east and was only 350 feet distant. He further says that he had not noticed the Fletcher until her first whistle was given. The libel and several witnesses state that the Fletcher began to turn after her first whistle and before her second, and of cOurse before any answer from the Stone. But all the witnesses for the Fletcher estimate that the disJ Reported
by Edward Uo. Benedict, Esq., of tbe New York bar.