,UE IBE1UAo
893
THE
IBERIA.1
THE UMBRIA. FABRE t1. CUNARD S. S. CO., Limited. DOLLAUD". SAME et al. HEMISPHERE INs. CO. V. SAME. NORD-DEUTSCHE INS. Co. t1. THE UMBRIA et al. ARNOLD et 01. 'l1. SAME. CoATES 'l1. SAME. SWITZERLAND MARINE INS. Co. '11. SAME. BRITISH & FOREIGN MARINE INs. Co. ". SAME. TRANSATLANTIC MARINE INs. CO. II. SAME. (Df.8trlct
Court, E. D. New York. January 9, 1890.)
1.
COLLISION-Foa-WHISTLE
AnAD-GoIlm FULL SPEED. It is a fault for the master of a vessel in a fog, on the high sea, who has slowed his vessel on hearing a wbistle ahead, to afterwards ring for full speed ahead, on the sUpposition that the danger is past, and before the position and course of the other vessel are known. A violation of article 18 of the international collision rules, by going full speed in a fog, requires, to excuse it, the existence of a present dang-er, and a necessity to go at full speed to avoid it; and a belief on the part of the master of such vessel that a dang-er may in a certain event arise in the future, to avoid which he gives the full-speed order, is not the excuse permitted by article 28· The steam-ship Umbria had left the port of New York on one of her regular voyages to and had laid ,an easterly course along the Long island shore, and was running at a speed of not less than 16 knots. A dense fog prevailed at the time. She had overtaken the steam·ship Normandie, and had left her astern on her starboard quarter so far as not to the Normandie's whistle. A faint whistle was heard ahead on the starboard bow of the Umbria, and then another whistle on the same bow,"but more ahead than the first. The engine of the Umbria was slowed. Again the whistle was heard"and then the engine of the Umbria was put full speed ahead, her master supposing by the sound that the approaching vessel was clear of his oourse; or, as the official log stated, thinking that the approaching vessel would port for the Normandie he 'ordered fUll speed ahead, to pass her. Shortly afterwards, nearly dead ahe;}, and on a course crossing that of the Umbria, ap" p6ared the steam-ship Iberia. The Umbria's wheel was put hard a-port, and her engines reversed, notwithstanding which she struck the Iberia on her port quarter, cutting her in two. The place of collision was several miles off Long Beach, on the Long Island coast, and some 12 miles east of the entrance to New York harbor. Held,.that the cause of the collision was the erroneous order of the master of the Umbria to put that vessel at full speed in a fog, before the position and course of the vessel whose whistle had been heard were known. The French steam-ship Iberia, bound to the port of New York from the Persian gulf, W88 approaohing- the coast in a fog, steering W. N. W, for the Long Island coast, making about 8311 or 4 knots.an hour, soundinl\: as she went and blowing a fog whistle·. The whistle of the Umbria was heard a httle on the port bow, some min- . utes befote the collision which su bsequently ensued. The course of the Iberia was thereuponohanged to N. W., and she kept on blowing her whistle, in response to the Umbria's whistle, till the Umbria was seen through the fog near at hand, and heading for the Iberia's beam. The latter's engines were at once put full speed ahead, but she. was struck by the Umbria and sunk. Hdd, that the porting of the Iberia was not a fault, and did not contribute to the collision.
9.
BAME-BELIEF OF FuTURB DANGlI:R.
.. BAME-FAOTS IN SUIT.
IS.
BAME-AppROACHING NEW YORKlIARBOR-CROSSING TllACJt OF OUTGOING VESSELS.
There is no rule which forbids a vessel bound for New York harbor to approach,the coast on a course the track of vessels bound eastward from the port of'New York. . The opinion ofejtperts, hOwever llltelligent and trustworthy, does not bind th& conscience at the .
tL
.
SAME-OPINION EVIDENCE.
IReportM by Edward G. Benedict,' Esq., of the New York bar.
In Adnliralty. Action for damage by co1lilliqn. The or Fabre against the Cunard Steam-Ship Company was to recover the value of the Iberia. The other suits were by insurers lost with the Iberia. R. D. Benedict, for Cyprien Fabre and Nord-Deutsche Ins. Co. Irand& l1O'tl'(1leZ/, "I. .John J[q!!onrdd, :(or Dollard. ,Hubba1'4,forSwitzerland Maline Ins. Co., British Butler, &. Foreign Marillelns. Ins. Co., and Transatlantic Marine Ins. Co., et a l l , ' " " . Owen, Gray & Sturges, for Cunard's. S. Co., owner of the Umbria. '.0' , ',.,\.
BENEDICT, J. These actions arose from a collision that occurred on the 10th day betw'eenthe.steam-shipUmbria and the steam-sbip;.Ibetia, on the high seas, and present for determination the question whether that collision was caused by the fault of the Umbria or the fault of the Iberia, or by fault, of bqth those vessels. The collision took place a little after 1 o'clock P. M., in a dense fog. The steam,ship 9r2,450 tons net register, and capable Umbria, of making an: average speed of 19i knots an hour from New York to Liverpool, at half past 12 of the day !in question, discharged her pilot at the outer buoy" and tookan eaater.ly course on her homeward trip from New York. The fog was at intervals. While the Umbria was proceeding in this fog at a nw'of speed certainly not less than 16 knots an hour,a whistle Was heard on her starboard bow. Then another whistle was heard on the bow, hut more ahead .than the first. Then herenginewas:put ,slow. Agarn the whistle was heard, and then the engine was put full, 'speed ahead. Shortly afterwards the Iberia appeared, crossing the cqurseof the Umbria, nearly dead ahead of her, and but 800 or 900 feet away. The engines of the Umbria were at once reversed, but it wasimpbssible to stop her in time, and she struck the Iberia on the port quarter, cutting her in two pieces, and causing h,er total loss. The Iberia was a steam-ship of 1,059 tons burden, bound from the Mediterranean to the port of New York. She had been in a dense fog since 8 o'clock in the morning, and was running with her enginesat "easy," the lowest ordet short of stopping, having a speed of from 31 to 4 knots an hour,ona W. N. W. course, sounding with the , lead as she went. While so proceeding, the whistle of the Umbria was heard by heron her port bow. Her course was then altered two points to the her engineslitill kept at "easy," and the fog signal blown from time to time, together with a short blast to indicate porting. ';rhe Umbria, when she fog, was close to the Iberia, and heading directly for her port· side·..The engine of the Iberia was at once, put full speed 'shead, but, as lilreadysaid, it was too late to avoid collision. I think it may be fairly concluded that this collision would not have occurred had not the engines of the Umbria been put at fullilpeed ahead after the whistle of the Iberia had been heard, and before alle was Sl*tn.
THE IBERiA.'
No doubt the rate of speed at which ,the Umbria was running when the order to slow was given increased the momentum of the vessel, and aggravated'the effect of the order "full speed ahead," when it was given, in this way conducing to the collision; bu t I think it may be taken for true that, if the engines of the Umbria had not been put at full speed just before the Iberia was seen, collision would have been avoided. I make my decision, therefore, to tum upon the question whether the order "full speed ahead" was a lawfll10rder. In regard to the which this order was given, two different statements have been made by in behalf of the On the main bridge of the Umbriaa.tthe time were the'master, directing the navigation of his vessel,the second officer, and the extra third officer. The chief officer also C8Jlle on tbe reported. Tne testimony oBhe chief officer is'that the whistle was reported as he came 011 the bridge" whenth'e'rna.ilterordered the engines put "slow;" that in about a miIlute he t.bat the captain then ordered the engines put full Speed aheM, saying, atthe time, "She is well off, and we can go :past her." The second officer says that the whistle ms heard by him two 'piJints or more on lltarboard bowj that the Ihaster then gaNe the order'to Slow the enginej that the whistle was' again heard, still more ahead; that the ca1;ltain then said, "She, was well clear of our track, and to let her go full speed past her," and such order was given. The extra third officer was' the telegraph, and tp the :order "slow," and the order "full ',' speed ahead," and to having'heard one whistle. , ,The testimony of these witnesses the Umbria, for, acc()rding to' their evidence, the Uinbria,in defiimce of the navigation rules; (arti:' 13;) which required. her,to go at moderate speed, went at full speed, not iirorder to lessen ouemove danger of collision, but because the JIlll.8oo tersupposed there was no dangei-of collision. The illegality of the '(jrdeds not affected by the fact that When the master of the Umbria, in \tiolation of lll.w, put his vessel at full speed in a dense fog, he was aware that in thefog somewhere ahead there was': a vessel; conjectured by hhn to' be on a 'course opposite his own,'''Those'in charge of a ship,in such li'dlmsefog, , '*' * should never conJecture anything when they hear a 'wiHstle in such close proximity." The Kirby HaU, Div. if itbe'true,as the the Umbria seenlto that the master of the Umbtiaput his vessel full speedll.headitra. fog 'apprOAching vessel, whose whistles at the time were giving his own, the navigation information ,that she wM6n:a course of the Umbria was not only' illegal,btitreckless. ,Anotherac<lount, somewhat different from that given -by the; first and second officers, is in behalf ofthe Utllbria. This account appears in the officiallog 'qf the Ufnbtia" in the following stittet:(i,ett: "Hearing the 'whistle 8Tbout ' three pOfn;fi on the starboard 'bow, ahd thinking hewtJli1d port 'for the French. steamer on our starboard quarter,orderedfuU speedahead,'to log was written by'tliejlurser of the Umbria, whb1tas' , He testifies that the mention not'bn'4ecK' at, the time of t4e ,lhthe' aftlbUd log' of :'themaster's ;thb'Ughts 'at the'time' when hepa't: the
cie
say,
896
FEDERAL REPORTER, Y01.
40.
beqa:use such was the common talk about the ship. Acqording to the PllrSer,the master first .knew of the entry in the log whell shown to. was made up, and then approved it. In the answer this account. does not appear. The allswer gives the reason for the orderfull speed ahead that the sound of the Iberia's whisUe "indicated that she was well dear of the Umbria. upoI;l the stanq as a witness mastergave reason for the order to p:ut the Umbria at full speed as that s.tated in the official log, although. I observe that in some places in his testimony he seems to agree with the other officers on the bridge; as, for instance, when he says; "I.gave the order to slow. Then, thinking the whistle .to be Buch a distance off, I gave the order of full speed to pass c",r, thinking she was goingin the opposite direction." . . . . The fact being that the- French steamer, which was the Normandie, had been passed by the Umbria, and had not been seen nQr heard for :sqxne time when the Iberia's whisUe was heard, and that no one on the Umbria but the master appears to consider the Normandie as a feature in thecpllision,the entry in the official log has given oppqrtunity for the 8rgJIment that the reason there stated for going at full speed was an afterthought. Whether such be the origin of the excuse stated in the official log I find it unnecessary tQ .pecide, for the reason that, in my opinion, the reason stated in the official log for putting the at full speed not a legal excuse. Confessedly, the Ulllbria was put at full speed in a dense fog, in violation of article 13. The burden is 'therefore on the Umbria to show legal excuse for the orderfull speed. What is a legal ex{lUse forsu$an order is stated in article 23, namely, the existence C)f an immediate danger, and anecessity to go at full speed in order to avoid it. But the excu!le put forth., intheqfficial log, apd:. by the master on tl1e .stand,is· not the prese!1ce of an jmmediate danger, but the master's belief that· a danger would arise in the. future in case the Iberia should port to avoid the Normand,ie. This is not the excuse permitted by artide 23. There must be a present danger and an apparent necessity to go at full speed in order to; that danger. The fa,ctsproved in this oCQSe to have been before the master C)f the Umbria at the time when he putbis vessel at full speed do not disclose a present danger, nor justify a belief thllt the Iberia was about to port for the Norma.ndie. nor show that the only course open to avoid the Iperia was to go full speed ahead. The master of the Umbria, when he heard the whisUe of thEllberia, knew that the Umbria was.in advance of the Normandiej that the Normandie had peen neither seen nor heard for some tiI:I1e; and that the Umbria's whistle had been blowing continuously. In these facts there was nothing to justify the belief that the approaching vessel would disregard the Uqlpria, whose presence was marle known by her whistles,and would change Aer course to avoid the Normandie, whose presence, so far as appeared, was unknown. If. then,the assumption ,by the master. of the U.:nbria that the approaahing vessel was bound on a course opposite to his own was justified, it still remains true thllt his excuse for going at full speed is nothing In0re than an !,:uafounded8:pprehension that, in a certain
tTmbpa at full speed was made without suggestion from the
THE IBERIA.
897
tingency, danger might arise. No justification for going at full speed in a fog is afforded by such a state of facts. But the assnmption of the master Of the Umbria that the approaching vessel was on a course opposite to his own was unjustifiable. His ground for this assumption he states to be that in the course of his large experience he had never "een a vessel on a nortberly course in this locality, in clear wenther. This qualification, which appears more tban once in his testimony, is suggestive, and points to the inference that the master knew that in this locality a vessel might be sniling northward in a fog. The case contains proof that for a steamer bound for New York, coming upon the coast from the south-east in a fog, the proper course is to steer W. N. W. for the coast, till she gets into 8 or 10 fathoms of water. The master's assumption that the passing vessel was sailing to the west-upon which assumption he confesses to have acted when he put his vessel at full speed-was therefore unfounded, and his excuse for disobeying article 13, of course, falls with it. No doubt the chances were in favor of the approaching vessel being bound west, but article 13 is not to be disobeyed on the chance that no ill will result. Instead of putting his vessel at full speed, wbat the master of tbe Umbria should have done was to stop until he wa.q able to move on something more than the chance that the approaching vessel was sailing on a course opposite to his own. "In a dense' fog, " says the court in The Kirby Hall, already cited, "those on board the Kirby Hall were bound not to speculate, but to bring their vel!sel to a standstill on the water at once." "Under such circumstances, she had no right to act upon conjecture." WALLACE, J., The Oityof New York, 35 Fed. Rep. 604. But two experts of character and intelligence have been called in behalf of the Umbria, who, it is claimed, testify that to put the Umbria at full speed, under the circumstances, was a proper maneuver; and, because no expert has been called to the contrary, it has been earnestly contended in behalf of the Umbria that it is an established fact in the cause that it was proper to put the Umbria at full speed, under the circumstances, and that all there is for the court to do is to say so. This contention seems to render it necessary to repeat here that the opinions . of experts, however intelligent and trustworthy, do not bind the conscience of the court. Moreover, what the ex perts called in behalf of the Umbria say is, first, that the master of the Umbria was justified in assuming that the Iberia was sailing west. Upon this point, however, the case contains other testimony which justifies a different conclusion, and, if it be a question of nautical skill or science, which is doubted, the weight of the tlvidence upon this point is not with the experts called on behalf of the Umbria. Tbe second conclusion of these experts is that, inasmuch as Capt. McMicken assumed that the Iberia was sailing west, his order to go full speed was proper, because he believed that a position of danger to the Umbria might arise in case the Iberia should port for the Normandie. I man'el to hear it contended that the law can be thus sworn away. No; the law still stands that a vessel called to answer for damages shown to have aristJn from her going full speed in a fog must be held liable, unless v AOF. no.15-57
898
FEDERAL REPORTER,
vol. 40.
facts be proved which show to the court the existence of at least an apparent necessity togo at full speed to avoid some immediate danger. Judged by the law, the Umbria must be condemned. Turning, now, tt) the Iberia, it remains to determine whether she also was guilty of fault that conduced to the collision. One fault charged against the Iberia, and strenuously insisted upon, is that she was on a course across the track of vessels leaving New York bound to the eastward. Cases are cited in support of this contention, which, however, are mostly, if not all,cases of river and harbor navigation. It is not proved here, 'and of course cannot be proved, that in the locality of this collision no course is proper except an east or west course. No statute nor rule nor custom proved forbids a vessel to cross the track of vessels leaving New York bound to the eastward. The Iberia was in a fog. She was sailing towards the Long island coast, sounding with her lead, and she had not yet reached 10 fathoms of water. Pilots called in this case declare such a course to be proper for her, under the circumstances, and that is my opinion. Another fault charged on the Iberia is that she ported after hearing the Umbria's whistle, and before the Umbria was seen. Such action, under very similar circumstances, has been approved by courts. The Frankland, 1 Asp. 489; The Lepanto, 21 Fed. Rep. 655; The Haskell, (court of appeal, Eng. July 8, 1889.) As a matter of fact, the porting of the Iberia gave the Umbria more time to avoid her, which was what the Umbria needed, and I am unable to see that it in any way conduced to the collision. Another charge against the Iberia is that she kept no proper lookout. But the Umbria's whistle was heard in due time, and the Umbria herself was !leen as soon as possible. Want of lookout was no cause of this collision. Again, it is charged on the Iberia that her whistle was insufficient. As to this, all thatis necessary to be said is that the proof shows that her whistle was sufficient to warn the Umbria at the distance of a mile, and to indicate to the officers on the Umbria that she was distant a mile on a course crossing the course of the Umbria. These are all the faults charged upon the Iberia that seem to deserve particular attention. So far as I am able to discover from a laborious examination of the testimony, the Iberia was guilty of no fault which conduced to the collision. My conclusion, therefore, is that the Umbria alone is liable for the damages caused by the collision in question. Let decrees to that effect be entered in the several causes.