'.rilE, THINGVA:LLAo
Of ,course, be
ordered j but the court will l'eserva the right to put the , costs of such refereuce where they shall belong, if, at the conclusion of the reference, as now, it appears that the reference was unnecessary. '
'THE THINGVALLA. 1
THE GEISER.
In re CoLLIllI01l'-BBTWEEN
TIIINGVALLA.
(DIstrict Court, E. D. New York., May 8, 1800.) The steam-ships Thingvalla and Geiser, belonging to the same company, met OIl' the high seas about 4 o'clock ofa dark and rainy morning. The Thingvalla ported, and kepta-port. The Geiserstarboarded, and remained so. Both vessels reversed, but· the 'Ehingvalla struck the starboard side of the Geiser, ainking her almost imm&diately. 'On petition by the owner of the vessels for limitation of its liability, various' claimants alleged that t1;le collision was caused by tbe fault of the Thingvalla. Clai;m. ants' contentions were as follows': (I) That the vessels were on crossing courses liot meetjng, end on, as petitioner alleged; but held that, elt1:ler case, the right the to port was the same. .(2) That, after the Tbingvalla had ported to the Geiser's 'l'ed light, she lost that light, and saw the green; and that thereupon' it h&came her duty to starboard. that under the circumstances, knowing her own, right to port and the Geiser's errol' in starboarding, and not knOWing but what the, Geisar would attempt to correct her errol' by porting, there was no fault in the Thingvalla's omitting to starboard during the oqmparatively short period from ner ' losing theHelsar's red light to the collision. (3) That either the Thingvalla was, running full speed in a fog, 01' had an insuftlcient lookout. that the evidenoe' did not show fog, and .did show that the Geiser was seen in time for the Thing- , valla to have avoided her if the Geiser had maintained her course. (4) It was charged that the 'l'hingvalla showed no mast-head light, but held, that the evidence ' did not sustain the charge. that thecolH!\ion was not.due to fault· on the part of the Thlngvalla, and the petitioner was entitled to a limitation of itlt liability. ' . , COURSES-LIMITING LIABILITY.
at.
In Admiralty. On hearing of petition for limitation of liability. Wing, SJtOudy Putnam', for petitioner. Sidney Chu"b, R. Doc Benedict, E. B. Oonvers, J. Edward Swa1l8trom, I AUguBt J1,eyrnert,and Herbert Kettell, for various claimants.
«
BENEDICT, J. The petition in this case is filed by a corporation' owning the Danish steam-ships ThingvallaandGeiser, to obtain a ·lim·! itatiou of its liability for damages occasioned by a collision which 00-· curred between those two vessels On the high seas, .not far from' Sable . island,onthe 14th day of August, 1888. At the time of the collision, c, the Geiser was outward bound from New York with passengers and ca.rgo, and the steamer Thingvalla was bound to New York, also laden I With cargo and passengers. These tWQ steanlers came in collisioil about, 4 o'clock of adark and rainy morning, the Thingvalla striking the Gei;' j ser:ori her starboard side, almost at, 'angles, . . right : and'cuttirigher heady:i ' ., 1
ReportM',by
"
G. Benedlct,ll:sq., of the New.York bar.
382:
FEDERAL REPORTER J
vol. 42.
in two, SO that she sunk in deep water almost immediately; the steamer and her cargo being totally lost, and some 50 persons on board of her beingflrowned. The bow of the Thingvalla was smashed in by the cullision, and she reduced to a sinking condition, but her master, by the exercise of a care and skill which deserves mention, succeeded, by running her stern foremost for the whole distance, in reaching Halifax, some 180 miles distant. The name of this master is Soren J. Laub. The Geiser and her cargo being ·. of course nothing has been brought into this court to represent her. The 'petitioners' interest in the Thingvalla and her pending freight is represented by upwards of $60,000, which has been brought in by them, and is now in the registry. The petition sets forth that the collision occurred through no negligence upon the part of the persons having charge of the navigation of the rrhingvalla, and prays that, if it so appearS upon hearing of the cause, the' petitioner may be decreed to be free from responsibility for the loss and damage caused qy ·. Several insurance companies and others interested in the cargoes'Jaden on board these steamers appear, and deny the allegaassert that the collision was caused by fault on the partOfthe1'hingvalla. ,,' happened about 4 o'clock in the morning of a rainy day,' there W;ould be,iQ, the ordinary course of events, no one on the vessel except those whose duty required them to be there. '1'he first and third officer of the Thingvalla were on the bridge. They c@IEld and examined by the petitioner. The lookout is not caJled. ,Oithe Geiser's survivors, the ,third officer and a young man w,ere On the. d¢ck at the time of the collision. The former has been callAd asa witness, the latter not. Her second officer, who was below deck and. aSleep, and her master, who came on the bridge a moment beforethecollisron, have also been examined. Two master mariners of tlxpetience testify, as experts, at the call of the claimants, and also a single passenger from the Geiser. given by these witnesses, tbe claimants of the fund UPon: in court contend, first, that the steamers were upon crossing courses, and n,ot, as. ,tile petitioner asserts, meeting end on, within the meaning of article 15. But; assuming the testimony to support this contention, it does not follow that tbe navigation of the Thingvalla was faulty. What tbe roa vigation,of the' respective vessels was, is not in The Thingva,ll\t, upon discerning tbe Geiser, ported her helm, and kept under her p,oit 'hehuuntiltbe two vessels were in contact, meanwhile stopping and The Geiser, upon discovering the Thingvalla, pelm, and kept under her starboardbelrn until,the vess@lswere in meanwhill:l stopping and reversing her engines.' The were either meeting end on or upon crossing courses. In either, right of tbe. Thingvalla to port was the same. So, in either' of caf!es, it 'W:lls wrong navigation for the Geiser to starboard, as she the part, of the claimants is that if it be' th'at the 1'hingvalla had the rigbt to port in the first instance, and if it _be that the Geiser wile wrong in starboarding as she did, nevertheless it
. "THIl; . THINGVALLA.
838
was the duty of the when she saw the redJight ofthe Geiser disappear, to starboard her helm, because by so doing she would have avoided collision. In the light of the facts disclosed by the testimony, I am inclined to believe that if the Thingvalla had swung sharply to port under her starboard helm, as soon as the Geiser shut out her red light and displayed only her green, collision would have been avoided. But .it by no means fqllows that the Thingvalla can be adjudged to be in fault for not swinging under her starboard helm when the Geiser's red light was shut out. The facts then known to the officer in charge of the Thingvalla were these, and these only! namely, that he had the right to avoid the Geiser by porting; that the Geiser, under a starboard helm, was in t.he wrong; and that, as the vessels were then approaching, risk of collision was manifest to those in charge. of both vessels. What had induced the Geiser to starboard, the officer in charge .of the Thingvalla' did not know; nor did he know what is now known,that no effort to return to her true course would be made by the Geiser. On the facts known: to him, he was entitled to presume that the Geiser, upon discovering the Thingvalla under her port helm, would be conscious of error, and would at once endeavor to correct it by shining the Geiser's helm from starboard to port. Knowing what he did, and nothing more, no obligation to starbolj.rd his helm attached to the officer in command of the valla. Capt. Thompson,testifying as an a belief that, under the circumstances narrated, he would have taken the chances, and starboarded, as soon as the Geiser's red light was shut out. ,But it is easy to arrive at such a belief after the event. Whether this experienced and skillfuillavigator, if he had been in comn1and of the Thingvalla at the time, charged with the responsibility or the lives arid property on board, would have "chanced it," and put his vessel at full speed under a starboard helm, cannot now be known. . What is known is thatH he had done so it would have been in violation of law. Capt. Milbank, also testifying as an expert, is likewise of the opinion that if he had commanded the Thingvalla under the circumstances, with 50 'seconds of time, he would have taken the chances of assuming the green, light of the Geiser to be a persistent green light; and witba green light ahead he would starboard his helm,and go on at full speed. But the law does not compel the taking of such chances. The officer in command of did not and could not know that the Geiser's green light was a persistent greenlight. The presumption was the other way. In the absence of that knowledge, it seernsto me clear that it cannot be held to have been the duty of :the to starboard, and go at full ",peed; especially when, there being then risk of collision, the law made jt obligatory to stop and reverse; and to stop and reverse would be inconsistent ,with a starboarding of the wheel, for the power of the helm to swing the ,Oll the forward movement Of the screw. The question is not what bold and, daring men would do, but what the law made it the duty of the officer in command of the Thingvalla to do. After a careful study of the case, aided, as I have been, by elaborate arguments on both sides, I am unable to hold the officer in
334
FEDERAIi 'REPORTER,
charge oftne fault for his helm upon losing the- Geiser's re'd! Hght. Another eorttention on the :part of the claimant of the fund is' that the Thingvallawas .infault either for;not-seeing the Geiser sooner than she did, !or,'ifltbat :was impossible by reason of the weather, in keeping up ber. speed! M"li1knots an hour i11 thick weather. But there is no evidence ohny I{c}g;The testimony, from those on deck is ppsitive that lights· could be; seen:ata suffidentdistRnce, although the night 'Was dark and rainy:' ,None of ,the numerous passengers who were on the deck of the ThingvalllJ.,immetliately after the collision are' called to show that the weather. was thick, and it is impoE'sible to conclude from the evidence that the weather was such as to the steamer to reduce her speed. As to the failure to keep a proper lookout on board the Thingvalla, the prClofshOcwsthaUhere was a stationed lookout, and that the Geiser was seen' at a,: sufficient distance to have enabled the Thingvalla to avoid her if she ;had-maintained her course. Indeed, the main argument made on the pait of the claimants is based' upon the assumption that there was time enoughJor the Thingvalla to clell.rthe Geiser by starboarding the helm after the Geiser was seen to be starboarding. It is plain, therefore, that thecoUision cannot be attributed to the want of a lookout on the part of the 1'nihgva:lla;· nor to improper speed in thick weather. Another contention on the part! of. the claimant is that the starboarding of the Geiser's' helm upon discovering the Thingvalla arose from the· fact: that;· to those in' ehargeof the navigation of the Geiser, the a·green light, but no mast-liead light; and it is urged that ,thec(jllision should- be attributed to the' failure of the Thingvalla to ddsplay1a mast·head light; But While it would seem to be the fact that nC) mast-head light on the Thingvalla was' seen' by the two witnesses who are called from the deck of the Geiser, and while it is not easy to understand how the mate in charge of theGeiser,who is shown to'have been a competent. navigator and who was lost by the collision, could have starboardedhis helm if he had known that the approaching vessel was a steamer; it is in proof that the Thingvalla carried a masthead light;:not:only. from those called from the deck of the Thingvalla, but from tpe,masterof the !Geiser who came on deck, before the vessels struck, and'#bo says that he' then saw the ruast-head light of the Thingvalla. The suggestion is :made -that a 'sail on the Thingvalla's stays might have hid the IDaSt-'head light/but ()f this there is no proof. It might also;perhapsi be'81ilggested that some sudden dash of rain obscured the light,but suggestions ',like tliese.:do not fOfm foundation for a judgment that the Thingvalla is :resl>0nsil:ile, foitb's collision because'of thefidlure toahow light. My conclusion, therefore, isthat the ThingvaJlamustbe adjudged free from any fault conducing to the collision in questiob,sndthe petitioner held 'ail-titled to eX8mptionfrom liability for the dumages occasioned thereby. . ; . . !.-
""A.. CA.RGO B00YE
OJ!' DRY BOARDS.
qF DRY BOA.RDS. l
(DiBtrict "
D. New York. .May 10, 1890.) BY WEA.TlIBlt.
.
tInder acontract of charter, absolute in its terms, to deliver to vessel a certain quantity of cargo per day, the charterer assumes the ris1i ot the wil'llfherbeingo such as to forbid handling cargo.
In Admiralty. Action for demurrage. Owen, Gray « Sturges, for libelant. Bartlett, Wilson « Hayden; .fOl' elahnanf. BENEDICT, J. This is an acti'Oll to recover days' demurrage in loading the libelant1s vesllleLat Atlantic City, Norfolk, Va., and five days' demurrage in discharging the vessel at New York. , Inl'egard to thedetentioll inAtlantic City in loading the vessel, the that th:e was detaine.d three days, andtb8lt the . fact was.nliny,· that .detention arose solely from the fact ,·the bcnttd's, having been cl;>uld,Qot Qu'boardJ1ip 'such, weather without damage,' The provision of wasa,s !ollpws: "It is agreed that the Illy dlschargibg snaIl follows, if not sooner dispatched: From tmrvessel is l\eady to receive or discharge cargo, 3O,OOO:feet'per day, Sundays excepted do for and qnick dispatch and thl1-t for each and 6,very detentiUn of the by defaillt of said patty of the second 'Pilit, or ',,,gent, $25.00 per day, day by day,. shall be paid by said party of the·'1l6oond to the party of. agent. The. cargo or.cargOes. roheli'll: of \fe\lsel's ." , ., , ' , [ " 'i to tb,e fact that the vessel was: ready: for! lo.ad:jng.at¥o.rfp1k a,ppointedtime, and,that;JL30,OOO feetoLboards ibadqew:du,rnished her each day, been.lQaded,tbtee : tht\n was. Nor is any ditlp:ute as to theJacttthat ;Cl1oqse orfailure of the.charterertQ deliverthaboll.rds alongtside .:the xesllela,s,agreed .in the .charter-party .was:. that the w.eather was rliLiny; it apdtlle boards;: which .wer:e kiln-dried··.would be. damaged if rain. Under such a. cQPtJ;'act; absolute in itstem1s,:for to the of30,OOO feetpfboa.rdsper.day,.lamOf :,the the ,qpiI,lioll that the ,:sk .of ,the weather is. aSll1Jmed by the. cbuterer. ,Jt be{ln fiO easy. to have said "weather permitting" tbaUhe .l.Lbllen,ce ,ofWl;)rds of >that indicate an,underlltandingtbll,t"the . at o.i ()harterer. The :words "by default,ofJ$he party 9f the second part" mean the defa;ql t. in furnishing 30,000 ..feet . vessel' lor the loading thereof.. Thii8v. Byer8'oj i l ,Q.B.. ' . the detentiqnof the ill New Yorkinnnioading, . it clear that the delf\Y i :wag by fault of the, ilnaster of the ship in not ,tPe,p111ce,deaiggated fOf.the. disehargI I,
" '!'j'
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