502 Tam
REPORTER.
SERVIA.
THE NICOLlS CUNARD S. S. CO.,
NOORDLAND.
v.
THE SERVIA. fl. THE NOORDLAND.
Limited,
(Dl'8trict Court,
S. D. New York. April 4, 1887..;;)
1.
COLLISIOlq'''':BETWEEN GETTING UNDER WAY- BACKING OUT 01' SLIP-RULES OF NAVIGATION. WHEN APPLICABLE.
. A steamer, proposing to change her course by reversing, is, upon stopping her engine for that purpose. in a situation analogous to that of sail· vessels :tackingwhen beating in .,imilarrivers or narrow streams, and, like the .latter, is. !:louna to use reasonaple.dispatch in order not to mislead or obstruct other vesiiels navigating in the Vicinity. 8. AND BACKI1'rG-.:Rrii:IC OF COLLISION-WHElq' IT ARISES. A vessel bound to keep out of the:way has a to.assume that the other vessel her duty, and pursue the ordmary and customary course, according to the special cirCUmstances. . She is not bound to stop and reverse . until there is reasonable cause' to apprehend some danger of collision· .. ·BAME-CASE 8'J.'ATED.
8.
A steam-propeller while baCking. ont of a slip, and two·thirds of a mi.le acros.s the river upon a defined course, for the purpose of turning about, is not engetting under way, but i.s bound by the titled to the. immunities of a rules of navIgation as respects other vessels. So far as practicable, the rules are to be applied according to her line of motion, treating. fOr the time being, her stern as her head, and her starboard side as her port si,de. .
BAME-CHANGB OF COURSE BY REVllllUlING.
The ste.a:rper N., 480 feet long, backed out of her slip at J.ersey City, straight across the NOrth river. for the purpose of turning down and out to sea. When in mid·river, ber propeller was stopped, when she gave a' Signal of two whistles indicating that she would go ahead under a starboard wheel. The steamer S., 520 feet long, was at the.llame time coming down the North river, near the Ni:l"w York shore, and sawthe N. when she stopped her propeller, and understood her purpose. The S; continued ,!roing down slowly not more thall. 800 or 1,000 feet from the New York shore. there being other vesselll between 1&r and the shore. The N. continued running out her stern way. did not set her enginesin motion for two minutes after they were stopped. then put them ahead at half slleed, and two minutes afterwards at full speed. Within a minute after, the bow of the B. strucktb.e round of thelN.'s stern not over 800 or 1,000 feet from the New York shore. The instructions of the N. were not to go more than two-thirds across the river·. She considerably exceeded thattimit and it was not usual to go so near unless the navigation was clear and unob.· .structed. .Thll S.· when she saw thatthe N. did not go ahead, ll-swas expected, stopped, and afterwards backed at full speed. and was nearly still at the collision, while the N. still had a little sternway. Held, that the two vessels were to be judA'ed according to the ordinary rules of navigation. treating the N. in reference to her line of motion, and that the N. was solely in fault (1) for going so near the New York shore unnecessarily; (2) for exceeding the usual (3) for not using reasonable dispatch in going ahead limits in such after she had signIfied her intention to do so in mid-river; (4) because the S. had no reason to apprehend any collision, as she could not anticipate that the N. would continue backing so far; (5) and because the S. did all that wall iu her power after she had any reason to apprehend danger of collision.
In Admiralty. Cross-libels for damages resulting from a collision. Owen & Gray and Frank D. Sturgis, for the Servia. Biddle & Ward and John E. Par8ona, for the Noordland.
TIlE .SERVIA..
503
BROWN,' J. The above cross-libels were filed to recover the damages sustained by the respective owners of the steamer Noordland, ofthe· Red Star Line, and of the steamship Servia, of the Cunard tine, through a collision which took place between those steamers in the Hudson river, at about 2:44 P. M. of JanuMy 30, 1886, some 200 or 300 yards from the ends of the piers, and about opposite Liberty street. Both steamers had started to proceed to sea upon their regular trips. TbeServia. had backed out of her slip at the foot of pier 34, North river, and had got turned about and straightened down river, when near the New shore off Chambers street, while the Noordland was at the same time backing across the river from out of her slip at Jersey City for the purpose also of turning down river. The wind was moderate from the northwestward. The Noordland's jib and staysail were set to aid in turning her bows to the southward, and a tug was also employed on. the port side of her stem in order to shove her stem up river as much as possible,.and counteraotthe effect of theright-handed propellerof theNoordland in back· ing,which wouldnaturiilly cant her stern down, and her bow up. When she had reached about mid.river, her engines 'were stopped to allow her to her sternway. At about the time her engines were stopped, asignal of whistles was given to the Servia, meaning, as the captain states, that the Noordlandwould starboard her wheel and goahead.. :The Servia, .at that time, was ashe estimates, about four lengths up riv.er, thatis, nearly 2,100 feet distant, and, as the pilot says,bearing three or four points aft of their beam. Two minutes afterwards, as the log wouldindicate, the engines of the Noordland were put ahead, and the Serv,ia's engines' in the mean I time were reversed. full speed. .TheServia'sstem, however, struck the round of the fantail of. the Noordland's stern, some. 15 feet forward, from its extreme end, and penetrated the Noordland about 15 feet, doing her very considerable damage, and. to the Servia. but slight injury, on the starboard only. The Noordland claims that the Servia was in fault because the latter had the Noo5dland anber starboard side,and was therefore bound to keep outo£ the way, which she did not do. The master pfthe. Servia considered· that he had the right of way because he was on. the starboard side of the Noordland"an.d was as near to the New York shore asjt was safe· for the Servia to go, and because the Noordland had no right to eomeby backing so near to the New York as to,prevent vessels passing up or down. The rules of navigation cannot be applied literally to vessels backing. The; do not fit. A ship's starboard side is side; her port side's her port side, whether she is going ahead or astern. If the .Noordland were ,intending to back across the Servia's path, each, having the other in fact upon her own "fltarboard side," would, by the letteroUbe crossing rule, (article 16, old rule 19,) have to keep out,ofthe by article 22 (old rule 23) 'each .would hav.e been bound 1;0 her course, whic4isa contradiction. The ,mIe as to crossing courses presupposes that, if A. is on B.'s starboard aide,,:a.mustbeon A/sport sille. ,It folloW's, therefore,tbat the
504 of a vessel backing must either be treated as casU8 omissu8 under the rules, in reference to the vessel's or else the statutory rules line of for the time beipg,', treating her stern, while :she is backing,. as her how, and her starhoardside as her port side.! rL'he latter result would, I thiuk, follow if .the case .were regarded. as not provided cfor by the statutory·rules. It would then be governed by the maritime rules prevailing anterior to the statutory enactments; steamers being treated like sailing vessels ,with iii free wind the one having the other on the starboard side of heriline ,Of motion being requited, to keep out of the 'Way , and the other to keepJner .course. In the case of The Galileo, 28 Fed. Rep. 469, it: was,obsened by the circuit judge that "itis doubt·fu1whether the nineteenth rUleofniltvigation applies ,to-a case where a :vessel under steam, lying-nearly:crdsg.,wa.se near the middle Of a. navigable channel, is not on, a defined that of another vessel under steam, and having the latter on her 'starboard side, but is: ,attempting to tum' about by baoking, thel! going forward for, short distances." Such maneuveril,restricted within- narrow' limits,scarcaly; anioun,tto ,more than ali attempt to get under ,wanarid the crossing.rule would not 'seem applicable to a steamer j .more than :to a sail-vessel, ,tha.t is not fairly under ,, , L. The Noordland in this case,'howe,ver, was not in of. a. getting .under way, or of a 17essel without a. defined, course. She ;:Wished, indeed, to get headed to the southward in order to proceed (ddwn the bay.,· Instead· of using any of the varioua.practicable methods rfor doing so at her slip, CJr in its itn1l;l.ediate,viciility, she preferred to J'Unback about two-thirds 0f a mile-: I1early strnight'8cross a busy thoroughfare,·to a point from which;'upongoing ahead,she could swing ·roukld in one sweep to· her desired: (lourse.' During this long stretch ;backwards,her engines were working astern at half speed for six minutes, and at full speed for three minutes. The practice is common. Her course was, in general, well <refined; it was her intended course, ahd was understood and anticipaitJed by both vessels,. except as to its limits. In pursuing such a long backward coul'se .for her own convenience, a steamer is not entitled to . the immunities of a vessel that is merely getting under way, but must be held subject ta the rules of nav'igation, so fa.ras practicable, applied according to her own line of motion; otherwise she would be allowed to navigate a considerable distance subject to no rule whatever, to the imminent peril of all other vessels. If, therefore, the Noordland'hl1d aright to back across the path of the Servia, and run so near to the New York shore, alldwasdesigning to do· so; or if the Servia had any just. reason to suppolftlthat such was the Noordland's intention, I shonld'be bound to hold the case covered by the cro,ssing rule, (article 16, old rule 19,) and the Servia consequently in fatilt for not having kept out of thb:way, by stopping in time, as she 'might have done, and doubtlesnvouldhave done,had she anticipated ,that the Noordland would back I am satisfied; upon all the evidence, considering the usag'e and the practice as regards backing, and the circumstances and necessities of· navigation in this harbor I that not. I
THE SERVIA·.
505
ouly..had the Noordland no right to back so near to the New York sb01'6 as she did, but that it was not the intention of her master or of her pilot to do so; .that they did· not. intend to cross the path that the Servia was taking, nal'tr the New York shore; and that the officers of the Servia had no reasbn to anticipate the Noordland's near approach, but had abundant and special ]'eason to the contrary; and that as soon as they had any reason to apprehend danger they did all they could to avert it. The master of the Noordland testified that his instructions were to run about two"thirds across the river, and that for that purpose he stopped the reverse action of his engines at about mid-river. The signal of .two whistles were given to the Servia, as the master says, at about the same· time, meaning .that he was going to starboard his wheel and go ahead. The· pilot says he sounded this signal just before stopping. The neer's log shows that it was two minutes after the reversed action of the engines were stopped before they were put ahead. The signal.appears to have been heard by the lookout of the Servia, but not by her on the bridge. ·.They saw her propeller stop, however, when the Noo.tdland was about in ,and understood that it was her intention togo ahead under a starboard wheel in order to get headed down the. bay. Capt.. McKay, .of the Servia, testified that it was the practice ".to burrow well on the New Yorkside. If the river is perfectly clear, they come well or one-third across, or just to clear the wharves." The nearer the backing steam-ship can come towards the New .York shore, the more convenient it doubtless is Jor her to reach her southedy course by asil1gle sweep.13ut it is in no way essential that she shQuld come much beyond mid-river; certainly notmore thl1n two-thiJ1dsacross, which was the limit, 'according to the Noordland's instructions. At this time the river was not "clear of vessels," since not only were there other small vessels in the vicinity of. the wharves, but tpeServia, one of the very largest that come into this port, was approaching near,' and was entitled to more consideration from the Noordland than smaller vessels. It would be a most unreasonable claim that a vessel of the size of the Noordland, nearly 500 feet long, might without any neeessity approach the New York piers so as practically to obstrl1ct navigation there, or render it perilous while she was lying athwart the stream, and until she should change her course, and go out of the way. Her duty was to make her operations in turning as safe to other vessels, and as little of an obstruction to navigation as was reasonably practicable. This plainly required her to leave a reasonably free passage for vessels to go up and down near the New York shore. The practice testified to, as wellas the Noordland's instructions, agree in this conclusion; and the evidence leaves no doubt that it was the expectation onench of these vessels that the Noordland would conform to this rule. The weight of testimony is dearly to the efl'ectthat the stern of the Noordland,at the time ofthe collision, was certainlynot over 300 yards from the end of the piers,and probably considerable less. The river there, from pier to pier, is abo)lt4,400 feet wide·._ She had crossed, therefore, about of the stream. Besides a great number of
506
FEDEBALREPORTER.
witnesses from the Servia, who estimate even a nearer approach to the New York shore, the witnesses from two ferry-boats that were waiting near by for the passage of the Servia, and the witnp,sses from the tug abreast of and· to the eastward of the Servia at the collision; seem to me to leaVft no doubt on this point. The Servia, having first obtained her southerly course near the New York shore, continued to shape her course as near to the shore as I cal) find was safe or j ustifiahle for a vessel of 7,000 tons. At the collision, when she had almost stopped by reversing, she was estimated at not over 100 yards from a tug and other'Ves· sels to the eastward of her From this it appears that the course designed and taken by the Servia lay about a quarter of a mile to. the eastward of the position of the Noordland when her propeller was stopped reversing, preparatory to going ahead and turning to the southward. !This distance was observed by the officers of the Servia, and the Noordland's intention to stop and go ahead was observed, and was understood by the Servia's officers, as clearly as if they had heard the two blasts given at about the same time by the'Noordland, an<td.esigned as an assurancebf that intention. In· that situation, the Servia had the right to assume that she was safe ingoingoD asshedid. There was no apparent danger. There was no apparent crossing of courses designed ,-no apparent ppssibility that the Noordland would interfere with the Servia's course so far to the eastward. Aside from the blasts of the whistle not heard, the practice testi· fied to, and the stopping of the Noordland's reversed propeller in mid· river, were a prootical assurance to theServia that the Noordland would no.t crowd upon her course. The Servia shaped her course so as to give the, Noordlanda· wide marKin, and more than she needed. The Noordland had abundant space and means for going ahead, as her movements and her signalshowedshe.intended, and there was nothing to prevent her accomplishing her apparentintention. It was her evident duty to do so. In the case of The Ul8ter, 1 Marit.Law Cas. 234, Lord CHELMSFORD in the privy council says of the Tagus, which, though crossing the Mer-. sey, was intending to turn down the stream, that the Ulster."was entitled to take for granted that the Tagus,intending to tum her head down the :river, would resort to all the means proper for the purpose, and would have no difficulty in succeeding inber object. The Ulster pursued the safe and proper course of noL shifting her helm, under the reasonable. expectation that the Tagus would do what she evidently proposed to do, and which she had the means at command of accomplishing." And on that ground the latter was held wholly in fault. In the case of The Baltic, 2 Ben. 98, where the steam-boat Flora was backing out of the slip at No'., 1, East river, and collided with the ferry-boat Baltic, BLATCHFORD, J., says: i
.. The Baltic did everything she ,wae bound to do, by slowing to half speed, and then stopping, and then avoid the collision. That she did n,ot do more-as, for in$tance, :in!lti;!ii!i of stopping at once the· moment she saw the Flora backing at a distance off which then was perhaps half a mile, she slowed to half speed-was no fault on her patt. She could have had no reason to suppose that tMFlora would keep ,on backing so as to
...
THE SERVIA.
507
make a collision probable. She slowed to half speed the moment she saw the movement of the Flora, and she stopped and backed as soon as she had any reasonable grotmd for apprehending that a collision was imminent. There was nothing in view from the Baltic as a cause for the backing of the Flora. and nothing to indicate that there was or would be a-neeessity for the Flora to back to the extent .she did. "
See, also, The W. O. Redfield, 4 Ben. 227, 233, 234. The observations quoted in each of the above cases seem to me precisely here·. When the Noordland stopped her propeller in mid-rlver"aquarter of a mile to the westward of the course that the Servia had shaped for herself, and four minutes before the collision, the Servia ha4. the slightest reason to supposethat the Noordland would backso far, nor was there the slightest necessity for it. The Servia was already going at the rate of from four to six knots. Shortly afterwards her engines were stopped,-a prOper measure of pre-: as was observed in the case of the Baltio.A little after, seeing the Noordland still going astern, her engines were reversedfull speed; and at theCQllision it is evident that her headway must have been very nearly stopped, or so heavy a vessel would have pcnetrllted the Noordland even more than she did. In the case of The Ada, 28 Law T. (N. S.) 825, referred to by the oounsel for the Nool'dland, the vessels were properly held. to be crossing, because both had to reach the pilot-boatas a common point, .which both could not occupy at once, and from whioh each was to go abead upon the same oourse. The true cause of the collision was the unnecessary and unjustifiable delay of the Noordland in putting her engines ahead after she had stopped reversal in mid-river. I think the Servia's witnesses are probably mistaken in supposing thatthe Noordland's engines again backed afterwards. But the log shows, as I have said, that, after stopping in mid-river, it was two minutes before they were put ahead at half speed, and two minutes more before they were put full speed ahead,-the latter probably not So minute before collision. From the statement of the pilot that the Noordland's speed, when sbe stopped backing in mid-river, was only about two and one-half knots, it is possible that this great mistake as to her speed backwards may have induced the fatal delay. The evidence'leaves no question in my mind that at that time she was going at the rate of five or six knots. The Noordland was but nine minutes in passing from the mud bank just outside of her wharf,' at the start, to the middle of the river;-a. distance of some 2,000 feet. For three minutes during the last partoHhis interval her:engines were going full speed astern. Two ferry-boats also left their docks at Jersey City a short distance only behind the Noordland, and, according to the testimony of the witnesses, they did not materially approach her in reaching the middle of the river j and the distance from mid-river to the place of collision, some 1,200 or at least, was passed over in folir or five minutes, though her engine was going half speed ahead from two to three minutes. These .circnllistancesaltogether leave no.doubt that the Noordland in mid-river must have been going at the rate of five or six knots. In proportion,
FEDERAL BEPORTEn.
,
however,'asber speed was cotlsiderable, was her duty to be diligent in starting ah¢ad l,l.fter she had stoPP(l;ld her engines backing, .when likely to interfere with the passage of the New York side, I can find no excuse fOr-.F¥r8t, thedelayoftwominutes in putting her engines at half speed ahead; and, 8econd, for the delay of two minutes more before putting them full speed ahead. A steamer backing, as in this case, for the purpose of reaching a point from which 'she may go ahead;, and swing around upon her desired course, when she has nearly teached the point desired, and the< usual position for changing, and when 'she indicates her purpbse 'by stopping the propeller's backward motion, ,is in a position substantially analogous to that Of a sailing vessel in beating, that indicates, place of to taokand come about. The' obligation of a tacking, that she is sailing vessel in that situation is to use reasonable1dispatch incoming ,about iIi order not to obstruct!nor to 'mislead other vessels obliged to navigate in reference ·to' her. l 'Pars. Shipp. & Adm. 578,' 579; The Empire Stat8j 1 Ben. 57, 60.'11here can be no doubt, I think, that a similar duty,llnd for the same ,reason, rests upon a steamer backing acroSs a river, 'snd designing to'change her couTse. Otherwise vessels in her neighborhood could not know upon what they must count, nor whether to attempt to go upon one side of her or to' the other. The Noordland;frdm the time she reached mid-river, and had indicated her intention' of going ahead, instead· of nsing reasonable diligence iodoing so, was, as it seems to me, dilatory to the last degree. This made all the just calculations·of the Servia. futile, and, as I think, was the sole respon_, sible caUf/e of the collision. The Servia reversed, as required:by the approaching rule, (article 18, ,old rule 21,}as soon as she had Iiny'reason to apprehend danger, and, as I have said, was very nearly stopped at the time of the collision; while the fact that the wound in the'Noordland's hull shows that its after edge is much more inclined towards the horizontal ,than the forward edge .is, and the furtber fact that the rUbbish inside the Noordland is all piled along the· forward line of contact,and 'none along ,the after line, as well 'as thE;linjuryto the Servia's starboard bow only, 'pro"e pretty concIusively that the Noordland must have had some sterowayeven at the mobows were probably panted a point to :ment of colIisi<;m. The the westward through the influence ·of her propeller while reversing. But I do not think this had any material effect in producing the collision, or that the vessels would have cleared but for this, slight change of ,hellding. The canting was in fact caused by the swinging of the stern, 'arid the rotating point is always much nearer the stem than the stern. Her forward movement, while she was backing, was but slight,-not :enoughto'mabany material difference in the position oiher stem on a line east and west. Finding that the SerVia did:a1I.tbat the law required of her, and was without fault, and that the collision arose through the unjustifiable delay of the Noordland in going ahead, I must dismiss the Noordland'slibel) and allows decree in favor of the Servia. with costs.
THE STELVIO.
50l}
TIm
STELV10.1
PHELPS and others v. THE STELVIO. (Di8fJrict Oowrt. E. D. New York.
March 24, 1887.)
CHARGES-CU1mENT RATEs-AGREEMENTA.8 TO RATES-BREACH OF CHARTER.
. Where a charter'party provided that the cargo of green fruit, should be discharged bya steved<lre named by the charterer at current rates, and the charhad guarantied that the stevedore would charge no more than current rates, and the stevedore had set up his tackle. held, that it was too late for the masil:lr to insist upon an agreement as to what rates were current. and the VeSselwas liable to the charterer for his damage sustained by the master's refusal to proceed with the discharge. . . MexQrbitant demand of damages in a libel will be relieved againllt: 011 summary application to. the court therefor, and a claimant who has given bonds for the full amoutit of such claim is therefore' not entitled to set {}ff agairrst libelants' damages the amount paid to the stipulators as compensation for signing his stipulation for value.
AJ:>MIRAtTY"':"STIPULATION FOR VALUE-ExORBITANT DEMAND QF .' --{J(jMPENi!ATION PAID: STIPULATORS-BET-OFF. ' .
In Admiralty. Ullo, Ruebsamen Hubbe, for libelants. E. B. Oonvers, for claimants. BENEDICT, J. I a.m under the impression that the clause in the charter-partyproviding that cargo should be discharged by a stevedore uamedpy the charter, at current rates, did. not authorize the ship, because not informed of the rates which the' stevedore named by the chartererintended to claim to be the rates current, to refuse to discharge the cargo at the appointed time. The cargo WaS. green fruit, as to the discharge and sale of which the custom is peculiar; aud when a competent had been duly named by the chaI1erer, and the time for the of fruit had been fixed, and the trade was in attendarlee to examine the fruit according to custom, the refusal of the ship to proceed 'with the. discharge of the' cargo because the stevedore declined to assent to certa,inrates as .current was a breach of the charter, and rendered. the ship liable for the damages caused to the libelant by such refusal. But, if I am,Wl'ong in this, it is plain that after the master ,of the ship had accepted the charterer's guaranty that the stevedore would charge no more than current rates, and had permitted the stevedore to set up his tackle in order that the discharge might be made at the appointed time, it was then too late for him to insist upon an agreement as towhat-:rates were current, and refuse to discharge because an agreement as to the rates was not made. The libelant is therefore entitled to recover the damages sustained by him by reason of the' refusal of thesl:ip to discharge the fruit at the time appointed. 1 Reported
by
Benedict. lllsq., of the New York bar.