500
DDERALBEPORTEB ,
'vol.
under the circumstances. The sudden changes of the tug were enlbarrassingJ The charge against the Shubert is not sustained. The only contributory negligence alleged is that she did not follow her tug, an'd this is I think fully disproved. The Ivanhoe and the Einar must therefore bear the Shubert's loss in equal proportions,-first deductirigfrom the loss such sum asthe Brown may be adjudged responsible for and compelled to contribute if the Shubert's libel in Delaware is sustained. The Ernar's libel against the Shubert must be dismissed, for the reasons already stated. Her libel against the Ivanhoe is sUl;ltained to ,the extent of one-half her damages, arising from the'joint fault of the Ivanhoe and herself: Satisfaction ofthe 'decree:jn her favor m-qst, however, be postponed until the decree against her and the Ivanhoe 'in <)f the Shubert is sa.tisfied. ," , The decree in favor of "'the Shu'bert'will be drawn in conformity with the rule established in The Alabama, 92 U.S. 695, so llS to secure a recovery from the' other respondent of such part ofone'spropdriion of the damages as he may fail to pay. ' , '" '
TIm SHUBERT
'0. THE
THE EINAR
v.
SAME. February 14, 1891.) ,
(District Oourt, D. Delaware.
1.
COLLISION-TuGS AND To'Ws-LIABILlTY 01/ TUG.
Th,e tug Brown, towing the ShlJ.bert astern" up the tug Ivanhoe, towing astern the Einar, passing down. m a calm night, a mist hanging over the water to the height of 10 or 15 feet. The side lights of the vessels were hidden, but the Brown had been steering by the high lights of the Ivanhoe, believing them those at Finn's point, and did not disoover her mistake until, when rounding to; to anchor. she found herself close to the Ivanhoe. She then went ahead full speed hard a-vort, blpwing Olle blast. which was, answered by a tug further down the river; Doth tbgether. being mistaken by the IvanhOe for a two-blast from the Brown. 'The Ivanhoe 'starboarded, but immediately changed her' helln to avoid a oollisiQn between herself and the Brown, the tows colliding. ' Bela, a8 the Brown was in t)J.e high lights of the Ivanhoe, in porting- bef\lrl! sl1e received an answer from' ,her, and in not sounding her fog signals, she was resl/onsible for the damage& to thE! Shubert. . " ..
9.
SUI:E-Foa-MrsTAXING SIGNALS.
The tug Ivanhoe, passing down the Delaware at least six miles an hour, in Ii thickening fog, through a cllannel mile wide,' and, straighttwotiiiles below and four miles above. and sounding no fog signal, was towinl$" the Einar, which had a PH,ot ,on board.. She met, near,lY head on the tug Brown .· ut> with a tow. When 010s6 tojreth!lr the Brown sounded a: blast, Which"being answered by a tug below, was believed by the Ivanhoe to, be. a tWO-blast from the Brown. ,The Ivanhoe starboarded without answering, and, seeing that a collision was immillent. ported, the tows colllding. ,Held, as the Iva/:lhoe wall in fsultin not giving fog' signals, in nof keeping olf. from the Brown,a/:ld changing course without answering the s,ignals, and by her negligence had contributed to the cbllision, and as the.duty of the pilot was to control ,both tow and tug, the Einar could not reoover from the Brown.
'Reported by Mark Wilkie Collet, Esq., of the Phila.delphiabar;
T:J;n: SHUB;ERT V. THE
501
In Admiralty. , Libel for damages for collision by the bark Einar against the tug Brown, and libel for collision by the schooner Shubert against the same. The Einar was in control of William S. Schallenger, a Delaware pilot. John Q. Lane, for the Einar. Henry R. Edmunda, for the Shubert. Bradford & Vandegrift, for the Brown. WALES, J. These cases were heard together. They grew out of a collision between the schooner William H. Shubert and the bark Einar, off Reedy island, in the Delaware river, at about 9:30 P. M., on March 21, 1890. The material facts are these:, ,The bark, towed by the tug lvanhoe, was going down,. and the schooner, towed by the tug Brown" was coming up, the river.' About a mne astern of the Brown and her' tow, the tug Argus, with It vessel in tow" was also coming up the river. Each tow was astern of and attached to.its tug by a hawser. The weather·, was calm, the wind being light from the Bouth-east, and the tide young flood. A mist or lightfog hung above the water to the height of 1.0 or 15 feet, but it was, clear oYerhead. The speed of the Ivanhoe was seven' miles, and that of the Brown at the rate of four to four and a ,half miles, ' an hour. The tugs, with their tows, were in mid,chaunel, and were" practically strung> out in a straight line. The lights on each ,were properly set and burning brightly· The bark was in charge Of It licensed Delaware pilot. The schooner was in charge of her own master. ,For 11 few minutes before the collision the top lights of the tugs had been ible to each other. Theirsidelightswete moreorlessobscnredby the fog. By an unfortunate mistake of the captain of the Brown, he had' been for some time steering for the top lights of the Ivanhoe, under the belief that they were the, range lights at Finn's point, on the eastern shore of the river, and he did not discover this mistake until ,he was rounding to for the purpose of coming to an anchor, when he Jound himself in dose, proximity to the Ivanhoe, and, as some of witneases say, .crossing the bow of the latter, In this emergency, having previously slowed down, he now gave orders to go ahead lI.t full speed, blew one whistle, and put his helm hard a-port. The Argus answered the Brown's signal with a single whistle, and the Ivanhoe, mistaking these signals as both coming from the Brown, replied with two whistles,and put her helm to the starboard. The captain of the, IV!lnhoe, seeing that by pur,suing this COUrse he would run down and sink the immediately changed his helm, and went to the westward. The result of tl)ese sudden changes in the movements of the Brown and of the Ivanhoe was that the fOJ;"Dler broke square oft' to the east, and the latter to the west, thus leaving their tows totheir fate. In a few seconds the schooner and ' the bark came together, bearly head on, and with serious datnage to each. schooner has filed 'libels against the bark and the IVAnhoe, and the bark :pasfiled the schooner and thelvanhoe,.in t11e easterndililtl:ict,of Pt'nnsylvania·. The IiIchoonerand the barkbave sued. the :arown int11is district.
rEDEltALgEl'ORTER 1'vol.
45.
Was the Brown in fault or in any way negligently conttibutory to the dt>utsitlrt? In view'ofttle undisputed'facfil, this question must be answered in the 'Her first error was in mistaking the lights of tbe'Ivanhoe for the ,stationary lights at Finn's point, which latter were some four miles above the place of collision,ahd His no excuse to 'by those on board of the Argus, say that the same mistake was which was astern of the Brown, fot' the mistake could and would have been prevented had the Brown sounded a fog signal, as required by the saillng!ttiles, (Rev. Sf. p.817.) The Brown committed l\ further error by porting het belm before receiving the 'proper answering signal from the Ivatl116e,' The Johnsrm,;tj) Wall. 155. That the been growing denser1ustbefore the collision is evident from the:adrnission and acts of the captain of the Browtl', and also from the fact that the Argus on that accouUllfWAScompelled to anchor shortly after. The prime and inexcus-' able {auHof the Browuwas in her failure to sound It fog signal at proper interv818of time while, under way: Such signals would have made known her position to vessels cothing from the opposite' direction, and by neglecting to make them she wlis brought into the danger of a collision, from which she baa' barely time to save herself at the expense of her tow, The mistake of the lights and the steering signals, when ihvas: too late toicorrect them, followed as natural consequences from, the'bmissiol1 to ,blow,the fog· whistles. As tne schooner appears to· have fault, to have followed in the wake of a.nd depended entirely':Oil the Brow'n for (JourSej she is entitled to a decree for her dainagell.: '" Is the also: liable to the Einar for the irij ury received by the latter? .' The' consideration of this question requires all inquiry into the relationship between the bark and her: tug, the Ivanhoe, for it iscIear that; if the 'bark ,and the tug were under the command and direction of thesameofficer,they may be jointly responsible for the torts of the tel'; Th& law is well settled' that "where the officers and crew of the tow. as well as·the officerssnd crew of the tug,participate in the navigation orthe.vessel, thetng alone, or the tow alone, or both jointly, may be liable 'foithe'consequenbes, (of a' collision,)' according· to the' circum- ;. stances, as the oneot the other; or both jointly, were either deficient in skill, or were oulpably inattentive in theperforOlance of their duties." The Clarita,: 23 Wall. 11. 1 As already -stated, the hark was in charge of a pilot, Rod' ifbe was also 1I:t' the saDle time in command of the' tug, and was invested'with the right to control her movemenls':allwell as thosa:of the bark; it follows that thidattermust berespousible for the torts of the, Cormer,if they were the results of the pilot's negligence. This is not .a DeW rule. Thesubject .caIiIe before' the supreme· callrt of the U oited Strites,' for' thf1dir13t titne, in the case of, TheChintJ" 'fWnll. 53. in which it:}MlS·h'eld thll.t,though therna:steriofavt'ssel was·compE'lled to take a pilot" it did' h()texonerat6;tha vessel :frornliability to ret'pond for torts dona,byitlib()ugb the resultB whollyofthe pilot's'negligence. The dis-senting opinioli oftwoof the judges.,: while'concurring in the judgment rendered by the court, differed as to the proper oonstruction to be given to
THE SHUBER'f V. THE BROW;>,.
.503
the state statutes, which, requiredthertnilster to pay pilotage fees, whether he employed a, pilot or not. The minority opinion contended that the statutes did not compel a master to surrender the navigation of his ship to the licensed> pilot or prevent him from continuing in command of hisship. The Oh-iM was affirmed by The .Merrimac, 14 WalL 202, tMsyllabus of which:is as follows: "The tact that a is in charge and under control()f a pilot. taken on board conformably to the laws of the state, is not a defense to a proceeding in Tf3'fn aglliust her. for a tortious collisJon,. the ,laws of the state providing only that. if a ship. co.ming into her waters, refuse to receivl;l on board and pay a pilot, the master shall pay the refused pilot half pilotage." .(The aware statutes require the to pay full pilot fees in Buch cases,) .. ,Any. doubts ,that might have remained as to the meaning and extent <>f thedeoisions just cited are set at rest by The OWilta, 103 U. S. in which SOme of the facts are similar to those in the case now beforeU$; In that case the tow was attached to the tug by a, hawser, and followed in, her wake. The ship had on board a pilot"and the tug was subject to his orders. The court. after reviewing the evidence, says: "Both vessels\Vere under the general orders of the pil6t on the ship;butit is also expressly found as 8 fact that the tug actually reeeiv.ed no orders from 4im. · The ship and the tug Wi!rj'l in- laWQnev:essel, anll that a vesselulllier steam. ... .... 11<' Both vessels were responsible ror.thQ. navigation, as ;h/1S already 1>een ship because wasi n'geppr.al charge, andthl;l tug because of the duty which on'hl'lr to acton her qwn responsibility The tug was hi fa'nlt because she dill in the situation in which she was not 'on her own motion change her: course so all to keep both herself and the ship out of the way, and the ship because her pilot, who was in charge of both ship ,and t1JlJ, neglected to. give npcessary to the tug when ,he saw, Of. ought tq ;have seen,th"t no precauiiollswere take,n 1:>Y the tug to tug done its duty avoid the approaclling danger. Had either the ship Qr .' under thecircurrlstallces; there could ha've been no collision.'" 'c·"
' · 1 · , : , ·.:
:
This rule of joint responsibility of tow and tug, when both are in general charge of a pilot, .asestablished by these authorities, was· followed in this circuit in The. Maggie KHart, 38 Fed. Rep. 765, which was decided by JudgeBUTJ.ER:in the eastern distr.ict of Pennsylvania. Speciulreference has ,been made. to these cases itianticipation of the objection that the rule of, joint ,responsibility, 8S declared in all of them, may seem harsh and unjust, because it, depriveB the owners of.a ship of the control of their property, fortha time being; and makes it. answer,. .able for the negligence or misconduct of a pilot" who is put in command ·of it by the law, often without their choice or consent. Theobjedtion may appear robe'more natural and reasonable from the fact that, under the same :circumstances, the English ,law exonerates a ship fromallliability for damages when in command of a.pilot, and the tort ariSes frOlD his negligence or want of skill. . Butit isnow too.lateto discuss thee:x:act justice of the ,rule whifch has; [been uniformly recognized in thelidmi.ralty courts.of the United States. This much, ,however. may.be s&id:in 'Support of the American: law' on the .IIubject, that. the master of.a ship J:etainsthe right to displace thetpilotf@r;mtoxicatioJi,gross incompetency,
504
FEDERAL
vol. 45.
or obvious'neglect of duty, and to resume the command of his vessel, and it is thus· made incumbent on the master to exercise proper care and vigilance in the navigation of his vessel, notwithstanding the presence of the pilot. Camp v. The MarcellU8, 1 Cliff. 481. The ·effect of adopt. ing the English rule would be that, in every case of collision, through the negligence of the pilot, the injured vessel would have no redress except against the pilot, who rarely, if ever, would be able to make good the loss. Applying the law, as we find'it, to the facts of the present case, we are constrained to dismiss the libel of the Einar 011 the ground that her pilot waS neglectful of his duty, and by his negligence directly contributed to' her collision with the Shubert. The Ivanhoe, which was or should have been under the control of the pilot on board the Einar, was going at the rate of not less than six miles an hour, through a gradually thickening fog, which concealed the hulls of approaching vessels, although their top lights were visible, as well as the range lights at Finn's point. Under these conditions it was the duty of the tug. to sound fog signals as required by law, and to proceed with the utmQst caution in her nl,l.vigation. For the protection of the bark the pilot should have oalled the attention of the tug tathe necessity of making the signals. The channel of the river, at the place of the colliSion, is a quarter of a mile wide, and is for two miles below and four miles above, so that. there Was ample 'rqom for keeping out of the way of other craft. The pilot saw the top lights of the Brown half a mile distant, coming direotly up the channel, nearly head on to the Ivanhoe, and yet gave no orders to the latter, but let her take her own course. The Ivanhoe mistook the sillgle whistle of the Brown and the single whistle of the Argus as both coming from the Brown, though, according to the testimony, they were easily distinguishable; and this blunder led to the additional mistakes of the Ivanhoe in first attempting to go to the east, and then suddenly turning to the west, to save herself, at the sacrifice of the bark, or, as the captain of the Ivanhoe says, to prevent his running down the Brown, which was a much smaller tug than his own. The Ivanhoe was also guilty of the like error as the Brown in changing her helm before getting a response to her signal that she was going to the left. The pilot admits the time the tugs were approaching each other, he gave no that, directions to the Ivanhoe-First, because he thought he had no right to do so; and, 8econdly, because the captain of the Ivanhoe knew the river as well as he did, thus showing that he was ignorant of the extent of his authority, or indifferent and careless in its exercise. He seemed to think that his business was limited to keeping the bark from running aground, whereas it was his duty to see that she avoided all obstructions that might be, in her way, whether in motion or at rest, and for this purpose he had the right to direct the course of the Ivanhoe. Thero can be no doubt that if the Brown and the IvanhOe had made the proper use, of their fog signals, and observed ordinary care and vigilance in di. recting their courses, the collision would not have happened. The lihel of the Einar is dismissed, with costs. The final decree for the amount
THE OOE F. YOUNG.
505
which shall be ascertained to be due to the Shubert for damages will be subject to the deduction of such sums as maybe paid to the Shubert by the Einar and the Ivanhoe, under the decree of the district court of th.eastern district of Pennsylvania.
THE COE !RONs
F. v. v.
YOUNG. I
THE COE
F.
YOUNG.
OSBORN HARVEY (Di8trtct
SAME. SAME.
Court, S. D. New York. January 17, 1891.)
L
COLLISION-STEAM AND SAIIr-DUTY Oll' SAJL.VESSEIr-BEATING OUT TAOK.
A sailing vessel, beating ip. a channel, is not obliged to run out her tacks to her disadvantage in the tide, provided she does not mislead or embarrass other vassels that are bound to keep out of her way.
2.
SAME-STEAM-VESSEL-LoOKOUT.'
The tug C. F. Y. was going up the North river on a clear day. A small sloop was beating up-stream ahead of her. The tug had no lookout except the master at the wheel. The sloop changed her tack when some 1,000 feet from the New York shore, in order to keep in the flood-tide. The river there is about 8,000 feet wide. The tug When the sloop went about was more than 150 feetdistantfrom the sloop. The tug collided with and sank the sloop, and was M14 solely liable for the collision in failing to keep a proper lookout. .
In Admiralty. Suits for damage by collision; the first suit being for loss of the vessel, the second for personal injuries, and the third for loss of personal effects. Hyland & Zabriskie, for libelants. E. G. Benedict, for claimants. BROWN, J. In the forenoon of April 19, 1890, as the steam.ltugCoe F. Young was going up the Hudson river with the last of the flood-tide, when opposite Twenty·Sixth or Twenty-Seventh street she came in collision with the sloop Mary, which was: beating up.river against a north· erly wind, and cut her in two, damaging also the personal effects of two of the libelants, and injuring the libelant Osborn, who was thrown into the waierby the blow. Very shortly before collision the sloop had tacked on the New York side, and had filled away on her starboard tack, heading, as her witnesses allege, about four points above a line straight across the river. There is considerable conflict in the testimony in regard to the direction of the wind; whether the sloop's long tack was her starboard tack or her port tack; as to the distance of the poiht of collision from the New York shore; and whether the sloop, as the defendants allege, came about very suddenly, and almost directly under the bows of the tug, without running out her port tack,so as to render collision unavoidable. The last point is most important, the others being mate-
JReported by Edward G. Benedict, Esq., of the New York bar,