TBE ST. JOBNS.
by an officer of the coast survey, accompanied by a diagram. From these it appears that the four-fathom 'curve is not correctly shown upon the chart which was in evidence on the trials both in the districtc<;>urt and here. It further appears therefrom that-even if there are no rocks' in the locality referred to-there is off the Battery wall a projection of mud or silt which pushes the four-fathom curve further out into the;' river, and leaves less margin for a v(:Jssel, situated as was the Beaconsfield, to maneuver in than the chart shows. Accepting the evidence furnished by the moving papers,-and even without considering the af:' fidavits which were read in opposition,-I am still satisfied that "at the time the Beaconsfield reversed she had approached so near the New York shore that, in view of her draught of water and the condition of the bottom in that locality, there was some risk of her running aground should, she continue her headway much longer under her port helm." There is no cause shown, therefore, for reopening the case. The finding, how·· ever, now expresses a conclusion (of fact) reached after a consideration, not only of the record in the district court and the additional proofs. taken here, but also of the deposition!! submitted by both parties on this motion. Should there be an exception taken to the eleventh finding, therefore, these depositions will be considered as before the court when. the bill of exceptions is certified. The following additional finding of fact may be made: Twenty. ninth. That the line of 24.loot depth of water off the Battery is as laid downon the chart used Oll the trial, except that aboutS. S. W. from the Battery' flag-staff there IS a projection of mud or silt which pushes the 24-100t line out into the river, as laid down on the tracing attached to the affidavit of Lieut. W. P. Elliott, the extreme outer end of which is less than 80 yards northerly from a line drawn W. N. W. through the place Qf collision, as found in the twentieth finding.
THE
ST.
JOHNS.
THE GEN. RoSECRANS. HEATH
et ale
11. THE
JOHNS
et al.
COUrt,B. D. New York. April4,l890.) OoLLlSJON-EVlI))rlNOB.
The steam-tug Gen. Rosecrans and the' steatP.-tug DelaWlj,re were crossing East' river in the same direction; in parallel' cOllrses, abont 300 feet apart. The steamboat St. Johns, coming up the river on their starboard, agll3ed 'by signals to cross the bow of the Delaware, and pass nnder the stern of the J.{osecrans. As soon 8S the St. Johnscrollsed the bow of the Delaware, she, cllanged her course so as to pass nnder thester!! of the Rosecrans·; but the Rosecrans, thinking the maneuverim· possibleJreversed her engine. The St. Johns immediately reversed her engine, and·, hailed, tae to go ahead. The Rosecrans. thell started ahead, but was strU(l1{ anq}njured by the St. Johns. But for stogpal!"s of the Rosecrans, the 6t. " 'Johns 'wo\ud ha:ve passed 75 or 100 feet under her stern. ' BeZd, th8t the St. J ohna was not in fault. ' _ J
, In
Appeal from district court. "
'16
FEDERAL REPORTER.
vol. 42.
FINDINGS OF FACT.
, P) At all the times hereinafter mentioDl'd, the libelant Ira Heath was the owner pf the canal-boat Stephen A. Pyatt, her tackle, etc. 'fhe libelants F.rederick G. Van Vliet and Isaac N. Van Vliet at the same time composed the linn of F. G. & 1. N. Van Vliet. and were the owners of a cargo of about 10,000 bushels of barley aboard said canal-boat. (2) On ,January 4, lES7, about 10 A. M., the canal-boat Stephen A. Pyatt, having said cargo of barley aboard. was taken in tow by the steam-tug Gen. foot of Morgan street, Jersey City. to be towed to TwentyRosecl'ans, at FOUl"tb street, East river, New York. The Gen. Hosecrans took the canal· boat along-side, on the starboard side of the tug, and proceeded across the :&'orth riVer. At the time, the tide was running ebb in the North river, the 'rind Was light, and the weather fair. The canal-boat was about 100 feet , '(3) A little after the Gen. Rosecrans left .Jersey City with the canal-boat, th.e<steam-tug Delaware left pier F, which is the next pier south of Morgan City. She had in tow on her starboard side acarcfloat, carrying W,lQaded ,railroad cars, bound for pier 3, E,Rst river. 'fhe car-float was about ' 200 teet in length., '(4')' The Delawanl, witti the car-float, foilowed a course paral. lei, to the course of the Gen. Rosecrans and the canal-boat, and not more than 300 feet to the southward of the latter. 'fhe Delaware moved faster than the Gen. Rosecrans, which was going at the rate of 4 or 5 knots, and gained upon her;, : (5), While the Delaware and the, Gen. Rosecrans were crossing the North riyer as above the, steam-boat St. Johns was coming up from Sandy Hook to her usual landing place at pier 8, North river. The St. Johns is a' side-wheel steamer, 260 feet long over all, and about 70' feet extreme width. She was in all respects well and competently manned and provided, and kept agooU lookout. 8he passed up the river about a quarter of amile from Castle llQ and was then heading straight, up the river, on a course passing within about 100, yards of pier 1, North river, 'and was, moving at a speed of about 13 knots an hour. When about abre'ast of Castle William, bel' master observed the two tngs on his port bow; the. Rosecrans being then considerably in advance of the Delaware. (6) When the St. Johns was a little above Castle William. whistles began to be exchanged by the Gen. Rosecrar;ts and the Delaware with the st. Johns. First, the Rosecrans blew two·whistle8,'indlcating her intention to crosS the bows of the St.·Johns. Next, the Delaware blew two whistles, indicating the same intention. 'rhen the St. Johns IJlewone 'whistle, intending to indicate steamcboat did not assent to the proposed course of to the Delaware the tug and float, but w()uld herself cross tM bows of tile latter. To this the Delaware answered with an assenting signal of one whistle. The St. Johns then blew two bhists·of'her,s'team.-whistle, intending, to indicate to the Rose. crans that the latter might oross the bows of the steam-boat, and. the Rose-I w)th, two., the c()urse agreed upon by the r:ite;im-boat aQ<Uhet:Qgs was ,that the $t. Johns, should pass between the tugs, ahead, of the' Delaware and the and astern of the Rosecrans and the, can·al. "::':"', , en :l'hIlSt··Iohns Delaware answered her. onefull speedwithaboutassenting contin,ue!l advancing ather of. 13 knptlJ an whistle an ".,'j_ _' ' , " " ,,'
engines of the steam-boat. were slowed, and 5 or 6' knQts. At the tune she s'()slowed, the Rosecrans bore a little on her port bow. " ,', (8) When the Delaware gave her assenting signal of one whistle, her car· tIoat was nearly abreast of the,stern 01 theoanal,lJoat of,the, Gen.l'lDlie-
one
THE ST. JOENS.
77
crans, and was not more than 300 feet to the southward. At the same time the St. Johns was about 200 yards from the Delaware or her float. , (9) As soon as the Delaware gave her assenting signal of one whistle, she reversed her engines. In consequence, her head swung around somewhat to the northward. (10) The St. Johns kept on, with no change of helm, pointing about for t\ie bqw of the Pyatt. until just as she was passing the Delaware, and not more than 300 feet below the Rosecrans. (11) As soon as the bow of the St. Johns reached the lower corner of float which the Delaware had in tow, her wheel was starboarded, changing ber heading three or four points to the westward, so as to pass under the stern. of the Hosecrans. (12) As the St. Johns was drawing clear of the Delaware, the pilot of the Rosecrans, thinking that the St. Johns would not be able to get under his stern, and believing collision inevitable, reversed his engines" and blew dan, ger signals. (13) As soon as the stoppage of the tug was or could be seen from the St. Johns, her helm was put hard a-starboard, her engine was stopped and backe,d full speed, and the tug was hailed to go ahead. ' (14) Thereupon the tug's engines were started ahead 'again. Their pre:'Vious reversal, however, had somewhat checked her headway. (15) The St. Johns was checked, but not stopped, by her r,eversal,and She the canal-boat Pyatt with her stem about 10 feet from the stern, on .the starboard side, causing her to leak badly, and tqe cargo and boat thereby sustained serious ' , (16) If the engines of the Rosecrans had not been stopped and backed, she the camB-boat would have the St. Johns by about from 75 to 100 feet. (17) When the proposition of the Rosecrans to cross the St. Johns' bowfl was made and accepted, the vessels were sulliciently far apart fOr the propo,sition to bl! successfully carried out, if both vessels had thereafter navigateq. in accordance with their agreement. ,,' , and backing of the (18) The cause of the collision was the Hosecl"ans,-a maneuver which was the converse of what her signals had promised, and in consequence of which she was encountered by the St. Johris within water which she would have vacated had she navigated according to ber signal. ' , 1 CONCLUSIONS OF LAW.
't
'(I) The Gen. Rosecrans was iufallit for stoppiIigand backing '(2}TherewRsnofanlti'ntheSt.Johns. ' '" ,;';;d (3) The decree as to the St. Johns must alid t1l,e:libel ,to hel' dismissed. J, Carpenter &: Mosher, for the Pyatt. R. D. Benedict, for the St,. Johns. Owen &: Gray, for the Gen. Rosecrans. > " ", ,'; ' ( , ; ; " , : ) )
LACO liBE, JtHfge.The iIi with the .opinion of the judge, (34, 763,) sl,lfllcjently indicate the grounds of affirmance. ' Hadthe'mi:viga'tio'u of both vellsels bee.l'l in accord. 1'lDOO with their agreem.ent,' there would ·have been no collision. What', then, was the, agreement, Rrtd, it? The Rosecrans and the Deltlwartl'being: eaehin the" fifth situation" relatively to the i St. Johns, which was on their starboard ,required, by w port, and pass astern of the St. Johns; the latter coiitiriuing on'Het 'fJ@urB8, and passing ahead. For some reason or other,
FEDERaL
,Rosecrans -disliKed to take thiscourse,........probably becauS he was crossing ap. epb-tide' incumbered with a tow,"'-and undertook to agree with 'the 'St.Jobns upon some other course. What thereupon occurred, as by the signals, was ihis:" I want to cross your bow," says ,theR,o$ecrans.; .. " lam going to cross the Delaware's bow," is the reply j ,Ubut,..if you ,wish to cross mine, you may." "I do wish to do so," responded the Rosecrans, "and will act on your permission." By this 'agreement, it became the duty of the Rosecrans to keep her course without u1;lllecessarydelay, and of the St. Johns not to thwart her, nor to intrude int!o the water through which the maneuver which the Rosecrans was to unqertakewould in ordinary cirCUmStances be carried out. Thereafter the. St. Johns slows. She crosses the bow of the Delaware according programme, and by as narrow a margin as she safely can. She co-operates by starboarding. She does not intrude into the water vVliich would have been required for the tug's maneuver, if executed as promised. She does, in fact, collide with the Rosecrans, but solely of the latter's stoppiog·. If what was ordinarily to be expected had ha.ppened, the water into which the St. Johns came would not have heen at that time required for the maneuver the Rosecrans was making; . Nor was the Inaater of the Rosecrans justified in stopping by any' fear as to the St. J 6lIns'course. Nothing in the situation or in the agreement wasdenlanding an alterati<m of her course up to the time wh@the Rosecrans Ip particular the case differs from that of The Britannia, ante, 67, which', both by the rule governinghell[situation, and by the promise of her signal, was required to alterhei" heading several points. This case is also to be distinguished from 37 Fed. Rep. 907 · There the failure of the Burke to JIlter her navigation so as to co-operate with the Sammie was persisted in, withoutaQY apparent cauae, for so longatime that the pilot of the Sammie ,was'held:8iXcusaple in reversing, contrary to his agreement, such maneuver being made in ext1'emis. Here the St. Johns did alter her navigation to co-operate with the Rosecrans as 800nas ahe could. It is true quite near the Rosecrans; but master of the latter knew, when he made hil:! agreement withherl' that he must expect no stoppilg9or swinging :to port from her until she had reached the Delaware's bow. Decision of district court affirmed.
to
'.
-'!'HE S,
9.BiEGON, (JOHN C6u'l't, D.
Libelant.) 22, 1890.) INTERVENTION
ADJUltALTY l'ROOBEDINGIlIN 01' A,DltfINI8TRATOB. . . '
null -COLLI8ION-l>BATB 01' SB.UUN . ' .
. ':A!i adril'inl'atrator in a BuJtl£n rem to recover the damages allowed .. bya lalwol the state' ot. his. caused by wrongful aot or omission of the person,!n "harge of the rei·. CBtIllabus bI/ the Co!urt.) . ". . . . J:' I. ,'" j ., ,.
'In Admiralty. ,
... , ., i. '
m·E s: II. OREGON.
79
Mr. C. E. S. Wood, for libelant. Mr.Zera Snow, for claimant.
DEADY, J. Austin and Reed ;' seamen on Clan Mackenzie, were killed in a collision that occurred between that and the steam-ship Oregon, on the Columbia river, on the night of December 26, 1889. The master of the Mackenzie, John Simpson, has ,brought suitin this .court against the steam-ship to recover damages for the injury sustained by the collision, alleging that it was .caused· by the, Ii",gligemce of the persons in charge of the latter, in which suit the administrator has intervened. . , ,§ pn;) giving a ,tight of Under the Oregon statute (COw,p. the action to the administrator for the Q(;lath o(a, pel,'son, caused t}:le deceased, hll:d he wrongful act or omission of another, in lived, might have maintained an action for an injury caused by the same ,act dr omission, an administtittol'might maintain a suit in. admiralty to "recover damages for the death of his intestate. . The Har:risbtwg, 119 U. 'S. 199, 7, Sup. Ct. Rep. 140; The Alaska, 130 U. S. 201,9 Sup; 461. i' . , . A 'pel'S6D. injuted by a marine tci1't'-1t tort committed on a navigable river oIthe United States-'-has a lien: upon the offending vessel for the ·damages he is eDtitied to recover for 'Such injury. The Rock Island Bridge, 6WlilV 215; : The Avon, 1 Brown, Adm. 170. BY' law'of this state 'the administrator having the same right,to maintllinfari'nction for the death of his intestate as the latter would have 'for an injuty'caused by the'Sameact or' omission H be had lived, iHollows, iIi my judgment; that he has, 8S an incident of such right, a lien upon the ;&ffending vessel for the amount of the damages he may recover in such action. . The administrator has such lien, also, by virtue of the Oregon statute, (Camp; 1887 ,§ 3690,) which gives'a lien on "every boat or vessel used in navigating the waters of this state * * * for damages or 'injuries:to persons or property by such boatbr vessel;" for, the tort being a maritime one, the state may give a lien in favor of the injured within its jurisdiction. The administrator in this party when it case may intervene in any suit brought against the offending vessel for , an injury toperSOIl 'or property caused by the w.rongful act or omission that resulted in the death of his intestate, and may join in his libel claims ·for the deatl!'of both Austin and Reed· . Under the admiralty rule 34; the administrator may file his libel in the clerk's office, and then apply to the court f(jran orderrequiring the claimant to answer the same; and such :may. thereupon · stich defense thereto as, by the course ofad·miraJ.ty he is entitled to.
FEDERAL
voL 42.
THE WYANOKE. 1 BUCK
'V. THE WYANOKE.
(Dtstr£ct Oourt,
s. D. Nw
York.' Maroh 15,1890.)
COW8ION-':'MuTUAL FAULT-LIllEL BY CARGO-OWNER-COSTS.
, ,
l,ng vessel joill,ed in her libel against the steamer, and both vessels were held in 'f$ult tor thecdllision, it was held that the defendantS should be adjudged to pay only one-half of,the oargo owner'S bill of oostjl, and that the latter must look to their co-libelants for indemnity against the other half. '
Where suit ,was brought against a steamer by the owners of a sailing vessel totally lost by collision with the steamer, and the owners of the carg-o lost wfth the saU-
In Admiralty. On appeal from taxation of costs. (hrter & Ledyard, for libelants. Biddle & ,Wa.rd, for claimants. BROWN, J. Since the decision of Mr. Justice BLATCHFORD in the case .oCTILe Warren, 25 Fed. Rep. 782, it hIlS been the settled practice in this .c.ircuit to. f'pportionthecosts1).s, well as the damages when two vessels are held in fault in collision causes. In the present case the libelants inelude the 0,wners of the schooner Ruth Darling, which was totally .lost by the collision, as well as the <>wners of the cargo. Both vessels were found in fault,and the damageawere ordered to be divided between them. The value of the schooner being less, than the value of the cargo, her ownel'S are not entitled toany deoree against the Wyanoke, because one-half of ,her damages is less thanone--half of the value of the, cargo which she ,would be bound to, pay. The result, therefore, is that the owners of the cargo have a decree for their full damages the Wyanoke. They ,now claim, also, a full bi1l of costs against her, on the ground that they should not be placed in a worse' position than if they had filed an inde,pendent libel. Had the cargo owners filed a separate libel against the Wyanoke, the Ruth Darling or her owners, would naturally have been brought in 'as co-defendants, under the fifty-ninth rule. All parties would have,beeiibefore the court, as they are in the present action. Upon the apportionment afthe damages in such an action, the owners of the schooner;;upon any stipulation for costs,would have been bound to pay their share of the costs according to the terms of their stipulation. I see,l1O Teason for any different disposition of' the present case. The cargo owners may tax their ,full bill of costs, but. these costs, as well the claimant's costs, will be appol'tionedbetween the two vessels or their JOwnersjl1Jiatis,one-halfofthe whole costs mus,t, be charged in the de-cree against.the stipulation given by the plaintiff owners of the schoonert the other half paid by the claimants. The total loss of the Ruth Darl.ing.does not absolve her owners and their stipullJ,tors from their shal'6' of the costs imposed on the two vessels in their OWIl action, and the bilities aSRumed by their own stipulators. As respects the Wyanoke t the result is the same as if the owners of the schooner were s.ole libelants. As between the libelants themselves, the cargo owners must lci>ok to their co-libelants for their further indemnity. 1 Reported
by Edward G. Benedict, Esq., of the New York bal'.