J'EDElLUJ
Bll1iPQBTER','voL 52.
faiult·hall been, thatof:'passive acq\1iEtlcence in followirig tbe:movemenUI' ofthe'tugJ '·· Thege' ex::PI'Qas.iOM ·wereaddressedto the> iw, hand, and ,ti:lisc6h.ooiv-ed:.1 ' Ill: t,ng., "lbbaHaw wmilch·lleqUlrtkl-:vessels. to'ibe aloogiU1e IDlddleof, :taken rthfJ·tow;on' ooe, [aide :oftbe'lch8.pllel,J liThe cause ,of howevtll'.:\waStBirank,sheerj:cu1pablY'\makle :by, :the tug just as! rske 'bro\lghtthe tl},w;neady: !opposite' another jVeSller proceeding in 'a cbl.11irary'dlreotion. ,The ,tow' and tlidall 'in her power t(Jiedurtuir8.ct-tho fault i oftthe'1mgj'butwithout avail;: and in the opinion, thismrcutn&tance is aomtnentedon'as'controlling.,' ' What the judgment really decides is that the tow was notllespgnsibIe, wholly. orlin part; for a falllt, cOO\lIlitted by steering'af'ter the tug outsidElrthe,'midcbannelol: the river. i.';' Of the Niagara were nclne the less, the agents and in the of the CharIll" COl1 sequentIy, of partiQiplltion in the fallH' by which the Expresswasinjuredj,is liable,with the tugs for the: injuries done to tbeExpress. Bothtugs(ue liablej'beeausetheywereengaged in 8. joint undertaking, were tbe'l>ropelty of is'ame owner, alld'the collision was caused by the concurrent negligence of the master of each. ', ' .The :deereesibelo:Wprotier1y.apportiQned, the damages, for the -injudes of the Expr.eSS:Ningara ,andnthe tugs, and divided the ages sustained by ,the Niagata betweenithat :vessel and the two tugs. The decrees are affirmed. witbAbe; oosts of tbis, court to the owner of press. 'As between the other parties,no,lfosts in ,this court are allowed. ,I
Iep) In re TOW.AGk
Co.
CJ)istrtdi
iJ: New
Dece,mbei' 1,
The'steallJ.' tug M<!Caldiii' Brothers, g-otng up the I;IudsQDwithout a' tow, met :nearly head &Iud head tug lee Xing, with a tow'on a hawser, just below N011/3. dinvaB ,flood III tlle cUlltom,for bOll.tll.gl'ing, up ,in to, ,ta,ke, the midWe rl"!er.The , captBIU and pilot of the ,,:McCaldm Brothers were undel" the, infiudb'ceof' liq'uor, andtha:t boat IIheel'edtO,thll'eaBt'side) ()f theriV'>er;i(>u. which "sid«f the Ice' ;lqng, was }lomjng q.P'W"1I,., pf the, 90MB blelW W:hlstieB, in tp, ,half a mIle away. 'The Mc0ailih1' 'Brothers waW 'strack ,ani lhiel' port bow. anti Bunk. Held, 'tor! tb'u'do1lis!ph lay:,dtil )the' :Mc.Caldln &olhers; but tl!at,as. it find, by the Ice Kmg !ll,ghtD.:?t have otuie IDpreventlDg the c.OllJluon; /uld, ,that both vessels W'llrtt liable. ' ",,, " ",'", ',,,', ,'" " < , ' ; '
-.- 8ir.JIU,VfisIlLl MIlBTlNG.,.,.. JNSl'EOTORS' HULDa..,.-: NECESSITY il!'OR SIGl:i;\:{.ING. , " I, , , ' , , , · "", , " , ,, , '" , " ,
THE ICE XING.'
895
In :Admimlty. Libel by 'Jamel! .McCaldin and another' against' the steam ,tug Ice Kingtorecoverdamages.8offer.edby the steam·tbg .Me· CaJdin Brothersiil·'o.collision,between'the.two :boats. Tbe Kiiticker. bocker Steam Towage Compo.'ny, ,as owner of the Ice King, filed 0. petition for limitation of l1iability. Limitation allowed, and decree. for libelant for onanalf the; damages. Mosher, for libelant. ,. McCarthy c:fc Ber1.er, and petitioners. BROWN; District Judge·· "A little after 11· o'clock, on the .night 'of October 6, 1891, the steam tug Ice King, having a barge in ,tow on a hawser of about 80 fathoms, incomilig down tbeNortli river, after roundipgAntqony.'s Nose, where.the river is not over 600 yardawide, came in cOllision with the steam' tug McOaldini Brotbers,wbichwas g9ing .upthe Nprth river and was Idoking fot' a boat which she was to take out of a tow coming down. The stem of the Ice King, pointing nearly straight down river, ,Struck the port .bow of the McCaldin Broth· heading' probably some three or four points towards the theeB.$t shore, from the effects of which the McCaldinBrothers' sank before she waaable to reach the western shore of the river, and two of the crew were drowned. The first above libel was filed to recover the damages to the tug,and the owners of the Ice' King subsequently filed their petition for limitation of liability, and at the same time denied that the collision was by any negligence of their tug. Upon the Qonflicting testimony, I find the followingfaets: en,That the tide at the time of collision was running at least two hours. (2) that by, the understooo practice of boatmen, the proper course for the Brothers on the ilo:od tide was near the middle of the river, leaVing the easterly shore for the benefit of. tugs, with tows, com· ing down around Anthony's Nose; (3) that the place of' collision was not more than 300 feet from the eastedy shore, and not more thl;lnan eighth of a mile below Anthony's Nose, ·as must be inferred not merely from the,·. direct' testimony,but· from the place where ·the wreck was sunkcin croSlringthe river, to wit" considerably above Anthony'aNasEl; (4) 'that no signals, w'ere.given(by either boat to the other until they were within 200 or 250 yards.of eachotherj.' (5) that theiMcCaldi1'l1s,cap· tain and pilot ,were under the. influence of liquor; (6)thiltbothdugs 'were in,a position to show: other their colored over a half mile distant from each other;. the .McCaldiIi Brothers !being' towards the westerly sideof'Jllid ,river,." 'but working :over. gradually ta. >wards the' shore;'.along which the 'Ice :King wlis ptoooeditlgj,{7) ,ihlitthe Meoaadiri ·:Brotbersshowed. her 'green 'light ;. tp: ·.t he, red, light of -:the Ice;.King\::before the: Ice King had' gO,t,_ around :Anthony.'s ,N<i>sei; but afterwards showed her. :green, light to··the ,gll66h ,ligqt jO£' until the McCaldin Brothers, by working over to starboard and porting, showed her red light, when Ilear the Ice Kingj (8) that the McCaldin Brothers was in fault for going over to the east side of the river on the flood tide, so as to interfere with the usual course of the Ice King; she
896
J'EDERALREPORTER
52.
tOIlet!' In.rsbrch 'of was/indow 'Ite.-:Kittg,ai1d'/JJbEf ,waS: also'Wc .:fa.ua,bfor .not,eignilling hta.,tp:roper (9) 'that'at'1lo:.titneWhen'tne bodsrwere ;within'QI qU8rtei:olfl dd probably upw,ardsof·a/quarteri:Jf a.. mile; was the mileijr green,'iligb t, of tbe,McOaldin Brothers. as nlOOnhR8 :ar "pOint; on the star,. board bow of the Ice King, as is apparent from' cotisillUng R' chartofthe channel of the river; and the omission oiany timaly':sigrW by the MeCaldin Brothers was alsQt;1l!,violatiqni G{r:the inspectora' rules'.': H" Considering that the McCaldin Brothers is chiefly to blame for this OGlli8ion, Lhav8 ,in d:etlmniningwliletherthe nonobservance ofthe inspectOrs' rules; ought, tt> beid,llemedapro'thna.te:cause of the collision'in the, present case. But, I find it impossialt> to· hold that-the givingQf thereqnire<l, by thei]jae Kihg ,WCJlild not probably have beenofany use; stillle8Bj' to say not p<>ssiblyliave been of use·. ' PM P6'nnBylV(inUt, J. 9 Wall.' 125, 136; The Dentz j 29 Fed. Rep. 1
"i
TT
It is clear frOiD the testimony that the pilot'ofithe, McCaldin Brothers M:ts;navigating"underamisapprehensi,on as 'w,the state of the tide; and that he was going over to"the east shore, ,conceiving the tide ,to be ebb, where,he says he would not have gone had he known the tide to be! flood. , A 'timely-whistle from ,the Ice King, whether of one blast, or of two blasts; would, have niade known her 'intention to the McCaHin Brothers,and would naturally have tended to correct her pilot's mistake. It. cannot ;be saidthatthernlesns to giving signals are uQtdesigned to 'correctgrt>ss mistakes,'or blunders. Theyar&iprescribed fOD ,the very; purpose 01 coming to a commonuh:of preventing mistakes, whethert slight or gross, i 'the Otmnecticut,103 iU.g.. 710, 71i31'Th.e Olaraand 'l:lu Reliance, 49 Fed. Rep; 765, 767; 768;'The' Td:B.Van ,Fed. Rep. l590; Tlw AmOs C. Barstow, Id.623. ,:Thecourse.ofthetwo boats was so neallly,headand hooddQ,at they ;cahnotbe exempted ifrom the operation Qf the rules. Evenl,the:pilot ,of,the Ice King estimateS that the dis-iancethey ''Would .have. passed and, clearedi ,each '-other, had, not the ,Mc0aldin .Brothers ,made her shear to, starboard;; as he alleges she 'did, only have"beett 'soroe, 75,to 100 feet.",·:IDor'some time, therefQre,they muatha"e been very nearly head and,'head 1 and the obli'gatiorl:to give was equally, obligatory oneacn.Ldo not"ftndthat any of the cases cited, b1!1heclaimants would excuse King's 'om'iBsicin of the signal. ":l.um obliged, therefore, to hold"hoth'vesselsre£i1ponsible, and to alrlow:·theMcCaldin Brothers' to recover one halfrher damages, not exceeding, however,itbestipolated value of the iItle King and her freight iniIirnitation of her liability, to which! find·the owners entitled, or ifrotherclahns appelit,her pro.rata ofsuch'vaJue.
