956 ,
49.
THE
OrrvoFNEW YORE.
TH:E1 JOHN
E. AMERICA: ;
:1 , "
..
,:¥oOUtI.
Tm:CITY'OF
.
:.'
NlllW YORK ANp 14, 1891.)
'"
01 Awea18, BeooncJ mrauo£t.
The .steamer City of New York, going river"ran into a fog before rojlndl;ng :tqe Battery. A 1iOwsome 1,000 feet lOng, 1D charge of two tugs, was prooeedingfrom Alnpoy to jersey CitY,'and was at the time of 'collision at the interseotion oUhe North andEQ.st rivers, below the Battery. 'j;p.e togs were sounding fog SigIlQIs.. No llignals,wer\lgiven from the tow, exoept that a woman in a rear boat of t)1e tow blew a 'horn when she disCovered the The latter, when she tirst;saw the tow, was::i:lloving at the ,ate of; six miles an hour; and, though shc at Ol1oe ,reversed, she stl,'uck.and sank one of. the canal-boats. Held, that the stealJ1er's speed was not'moderate, as required by rule, and that she should have ')l9al'd and aoted upon the signals of the tow, and was in faJllt for not doIng so. ,B.:ld,IlZ8Q,that, as the tugs were performil1gall their statutory duties, they were Dot guUtY of negligence because no signals were given from the tow. 44 Fed. Rep. 693, rever$ed. '
OF Tow TO SOUND FOG SIGNALS.
Appeal from'the Circuit C<1Urt of the .United States for the Southern District of New York., . " , In Admiralty. Suit by Moore to recover for the loss .of a canal-boat incollision·with the City of New York while the canal-boat was in tow oLthe tugs Young America and John E. Berwind. The districtcourt .held,all the steamers in fault, (44 Fed. 693,) and their owners each appealed. Reyersed. . . Wing, ShC)'/,ldy &:Putnam; (Charles O. Burlingham, Qf counsel,) for the City ofNew,Yotk. ',., . RobinsO'n, Brigh,t; ,Biddle&: Ward, (Hen.ry Galbraith, Ward, of counsel,) for the _, Mc(J(J8'f1lJy &:Berier, (Edwin D. McOarfh,y, of for Moore and Daily. ', Before WALJ;ACE and LACOMBE, Circllit Judges. Judge. The libel in this cause "as filed by the W owner of the canal-boat Western Star against the steam-boat and the two steam-tugs to recover the damages occasioned by a collision between his canal-boat, ,while she was in tow of the, two tugs, with the steam-boat. The districtcClurt adjudged the steam-boatand the two tugs jointly in fault for the collision, and condemned them for the damages sustained by the libelant. The- owner of the steam-boat and the owner of the two tugs both appealed ,from that decree. The question now to be determined is whether the'stea.m-boat was solely in fault, or the tugs were solely in fault, or whether both wete in fault. The collisiop, took place between Governor's island and the Battery, at the intersection of the East river with the North river, a few minutes after 7 o'clock in the morning of
":938
nD1tBAL
$tathtorr. dHttei. mWMt,' or ;llfhe orlewoq!tt'huve iiltI1114ted the andtbe Ibthel"lBt . 6f· . . y ,could ,i,yet . thereby. WbqHvbat ',gi.te1f?·' 'that ...:'bota.,n. of' any
boats of a '/'ial1ulgvessA1 hbt1und"fl ;Iiy
b#1?
l,plac9,,' ',lt .t1?;e. ffiQO.,a.t;.wa.s .m., .. the'slghals" ha.ve been . ,n.;
fP..P slgruilsJftom the ... ....
)which are intended.to 'g'iva d{l'fi'ni inforlega'llr'lillowable. Itmayl l)e doubted',whetber' vingof 'fog'sigil8ls PYbbtttB'orvessels in toW'wbijId risk 'Qf ooUiMon, .and: wliether. the ;In,tl1tiplicaUolrof signals,w6ti1d not lead to p.. ..o ':Ofsti,p.erVi. ,ngins.p.Elc.to.l1I. o.f. . .. a.s late'aS 1886, seemed, to have sUPl>Osed that they were atithoriied' under secUoq, 4412 of the' Revised Statutes to· prescrib!, signals for and 'di,ipre,scribe them for such vessels wnU;e'towing; Tows like the, one in case were 'common,':andrlfad'beenfotmany on the greatrivers and in/the harbor Yet the inspectOrs::d,o, not seent' have considered it hlake any other )'egUlktionsappHcnble to Ute navigation 'ohucb to,\\:s than: 'that the should, sound the signal of three blasts successionto.indicate towing. And it is in the act9fc6ngres,s ofAugust19,1890, (26 320, 326,c. 802;' ark 15, subu. 2j,) ''Sddpting, among other things, the code of fog sign$ devised by the international raarine'conference, while vessels'beingtbwea· afe'permitted they required to give anYiand are trbm giving any other than.· that is required to be ·gi\ren' by the' ·. It is possible that if signal bad been. giveniin theprilsent case from some one or Illore ofthe boats ofthe tow, or might have; beard ·it, elld 'sogdverned her movements. lis' 'to .avoid. collision. But the tugs hiLtUittle time in wbichtO adopt any special precautions; as it was, only abb\1tfive riiinutes the collision that the fog became sufficiently dense· to require ;them i and' they are ildt. to be held liable merelybecauS$fin ,the lightofsubsequept' events,it aPPears that thing not·done'fuighthave.bel3rt usefuL' The collision would not have happened if tbe 'liltesm-bolit had exercised the degree of care required of her unller case. She was a'ware of the significance ohuch eignllls a.s were given by the tugil, and knew that they dea towing. ,She knew that similar flotillas of boatll t distance, were If she had constantly belllgtdwed by tn,g! In the. harbor of N'eyv :been reasonably ,'heard fog sounded duty to from, t,he tugs; and lD thatcnse It would have speed to the loweflt rate cOI1sistent with hersteerlige-way, and wait b$fore proceeding fasterilntil she had a right to assume that the 1100 leon. si.
Ina aignahknQt em
... .. lt. . . '.. ....b. tugs? "1t may'\;e' doubted
re..
PENNSYLVANIA R. CO. t1. DAILY'S ADJI:'x.
959
tilla was beyond her path. Her own testimony shows that if she had done this she could have been brought to a stand-still, after seeing a vessel in her path 100 feet away, in season to prevent collision. The rule approved by the international marine conference, that "a steam-vessel hearing, apparently forward of her beam, the fog signal of a vessel, the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over," merely formulates the duty which had previously been recognized by the courts as incumbent upon steam·vessels under such circumstances. Act Aug. 19, 1890, (26 St. pp. 320, 326, c. 802, art 16;) The Kirby Hall, 8 Prob. Div. 71; The Dordogne, 10 Prob. Div.6; The Oity of New York, 35 Fed. Rep. 604. Holding, as we do, that the legal responsibility of the steam-boat is precisely the same, whether she did not hear signals which she ought to have heard and acted upon, or whether she heard them without acting on them, we think the collision is attributable solely to her own misconduct. If the tugs had been in violation of any statutory provision for preventing collisions, it would have to be presumed that the fault was a contributory cause of the disaster. As it is, it is merely a matter of conjecture whether any additional precautions would or would not have prevented the disaster. The decree of the court below is reversed, and the cause remanded, with directions to enter a decree against the steam-boat and her stipUlators, for the libelant, for the full amount of his damages, with interest from the date of the report of the commissioner in the district court, and for his costs in the district court and in this court, and for the owner of the tugs for the costs in this court.
PENNSYLVANIA R. Co. et Gl.
e.
DAILY'S
AD.'x.
(Circuit Cou11 of .Appeats, Second Circuft. December 14, 1891.)
A.ppeal frolU the Circuit Court of the United States for tbe Southern District of New York. In Equity. Libel in per80nam by the administratrix of Patrick Daily against the Pennsylvania Railroad Company as owner of the tugs Young America and John E. Berwind, and against the NOl'wich & New York Transportation Company as owner of the steamer City of New York, to recover for the death of hpr intestate. who was drowned in conspquence of the collision, giVing rise to the libel against these three vessels. 49 Fed. Rep. 956. By stipulation of the parties, decrees of like effect as in that case wl'reentel'ed in this, both in the district court, and upon this appeal. For former report. lee 44 Fed. Rep. 693. Oharlu O. Burlingham, for appellant Norwich & N. Y. Transp. Co. Henry6albraith Ward, for appellant Pennsylvania B. Co. Bawin D. MoUarthllt for appellee.