890 . ,.."
FEDElUL"REPORTER,
vol. 52.
} i .i.: ..
, THe' Nil , " I
<'f"j
I,
:l n!
,':'
THE! CRAllM.
r -"',' ,
C01i'l't qf ,'I:
jj')':':<d":,
Se'ccnid Circuit. Ootober t; . '
1892.)
N08. 88. 89. J
9,. "
"(t';'
. '1'01' collision <scbuiTihg.1Jl New a and' a ..t.he 'latter three at no tune movinp; more than two lII'teamshilllJ1 charA'e'oft«rl) bqur, that the ste",mer might havll so shaped' bet' course whelih4lfa mile away uto easily avoid danger of collision', but the district court found that the vesselsW,ould have safely passed starboard·W starboard had not one of the tugs, owing to inattention to the steamer's movestarboard and been followed by the ship; that there .ments, hauled off IOOkoutlUUlitllE!r of the 'or the ship j and' that those in charge were inattentiveti'lthe tllfD41lldf tbesteamer. ' Held, tnat on the facts found the steame!' mUstbll' aequitte.diof 'fauli,f\li',if negligent iD the beginning, her naRli. ,',,geDce a eaWle of thecollisioD. ', · TUG'S Fit1LT:
BJJ.tp, AND
TUGs--l"ROXDtATB
" .·.. - A tow by two tugs under ,al1agreement that the, tugs .,' shOUld 'hliivepraetlcal hElt, and tlie masterpf ODe tug stoOd upon the , ,and de1lveredorderll; which were 'oatedbY tbelattel"to'the ShiP'li crew. ,. ;AfaUltwasoommittl'ld by the other tug, whereiD it was followed by the ship through orders thus delivered, resulting in a collisioD with a steamer. Held, that while the tug was not the mere agent of the ship so as to render the latter liable under the rule of re8pondeat superior, yet the ship was a participant in the fault, and on that ground was liable with the tugs. The Doris Eckhoff, 1 C. C. A. 494, 50 Fed. Rep. 134, 1 U. B. App. 129, distinguished. I. SAME.
Both tugs were liabl,! because they were engaged in a joint undertaking and belonged to the same person, and the collisioD was caused" by the concurring negligence of the masters of both. DAKAGBS. '
'" 8.urS-ApPORTIONKBNT 011'
Under these circumstancest the decree properly apportioned the damages of the steamer between the ship ana the two tugs, and divided the damages received by the ship between herself and the tugs.
Go
BAl\fB-APPEAI.--RllIVIEW-CONOLUSIONS 011' F.leT.
In a collision case the district court's coIJcluslons of fact will not be disturbed when they involve doubtful questions of fact depending upon testimony which is quite conflicting, and upon tne credibillty of the witnesses examined in the pres· eDce of the court.
Appeals from the District Court of the United States for the Southern District of New York. Affirmed. For opinions delivered by the court below, see 44 Fed. Rep. 392, and 46 Fed. Rep. 860, where the facts are fully stated. . F. Bronson Winthrop and Lewis Ca88 Ledyard, for the Niagara.
· Tij:E: EXiPRESS.· .
: .'
8.91
Harrington Putnarq" for the Express. " . Franklin A. Wiltm,. for the Charm.
Edward .L., Owen, for the Starbuck. Before WALLACE Circuit Judges.
W AL:r.ACE, Oircuit. Judge. These caul\es· arise out of a coIlisio:n wbfctt took place December 2, 1889, in the ,East rive.r, just above Corlear'a Hook, between the steamer Express and the stoonlsh;p Niu,gara, the latter being at the time in tow of two steam tugs, the Charm and StaJ;buck. A libel was filed by the owners of the Niagara against the Express,ltnd on the petition of the owner of the lllxpress the two tugs brought in as respondent!. A .libel was also filed, by the owner. of the Express against the Niagara and the two tugs. The district court dismissed the libel against the Express, and decreed infayor of her owner against the Niagara and the two tugs, and in favor of the owner of the NiaglJ,raJor half her damages against the two tugs, adjudgingtbat the Niagara and both tugs were in fll.ult for the collision, and that the press was not in fault. The owner of the Niagara and the owners of the tugs have appealed. There is much in the record to suggest that the Express was culpable, as well aa the other vessels, for the collision, and we have reached a contrary conclusion with considerable hesitation. During the operation of turning the Niagara areund, she and the two tugs were practically a stationary object, and from that time until the collision their speed was not more than two knots an hour, exclusive of the eurrent, which was about a mile an hour. The Express was a fast and powerful l;lteamer, equipped with twin screws to facilitate her movements; she: was unincumbered, being on an excursion trip merely. to test her speed and qualities; the weather was clear; she saw the other vessels half a mile. away, and there was ample sea room ou either side of them to .avoid them, and. no intervening obstacle; and although they did not answer ber signals, and were inattentive to her movements,and supinely acted on the assumption that she would keep out of their way, she could have shaped her course sufficiently far on ei.ther side of them, when sufficiently far away, to obviate any risk of collision, and perhaps ought to have done. so when she slowed her speed after her .last signals were not answered. Nevertheless, the learned district judge before whom the cause was tried in the court below found in substance, as appears by his opinion, that the collision would not have taken place, and the vessels would have safely passed each other to l?tarboard, had not the Starbuck t owing to inattention to the movements of the Exprees, hauled off strongly to the starboltrd, and been followed in that movtlment by the Niagara, when the vessels were so near together that the ,Express cou;ld not Ilovoid collision, notwitbstanding she immediately reversed ber engines. The proofs fully sustain the findings, stated in his opinion, thatthere was nolookout proper 'on either of thetugll or On the Niagara. and thatJhQse in charge of the Charm and the Niagara were inattentive to the signllis and movements of the Expres8. in these
FEDERAL'kEl'OBTER ,vol.
52.
particulars cannot safely be disturbed by this court, as they doubtful questions of fact, upon which the testimony is quite conflict. ing, and depending upon the credibility;oNhe witnesses' who Were examined in his presence. . (!;bbper v. The Sara.toga; 40 'Fed'. Rep. 509; The .Thomas Melville, 37 Fed. Rep. 271 j The Francis T. Nicholls, 44 Fed. .302; . Atlcepting tbeifEfoonclusions of fact itS correct; the Express must beaequitted of afi'yrfaultcontributing to the collision. If she was cullJable in:any other her fault was innocuous, because not a proximate cauae. The Niagara in tne court below for several faults, among them for followiag.the, Starbuck, when the lattermnde the fatal movement to starboard,which brought about· the collision. ". The proofs indicate' that the for the performance of the towage service oontemplated that'the officers and men of the Niagara should participate with the tugs in hel'lt&vigation; and that the master of the Niagara should allow the tugs tb 1havepractically command of her. From the timb the tugs took thecNiagara in'tow, of the Charm stood upon the' Niagara!s bridge by the 'side of the master ,of the Niagara, and gave such instructions as he thought proper to the mas Jl' of the Nillgara, and the latter coinmtinicatedthe instrtlctions to the officers 'and wassufrboarded, to follow the final men. . conmi'tmicated by the nlaster of the Niagara ur:hel'quartermaster,wlio was at the wheel Ilrtd exetmted· the order. ' , . J.t law'in: this coui1try that 'a tug, under the ordinary towage oootracty ii:Jrtotntheagentiott servant orthe!tow in performing the service, that the tow is not the 'l'O'lereapottdeat $uperior, for any loss occasioned by th& fanl:tyJna-qigaiioD" tug>. But none of the adjudged caseS decide tbat 'ft,itow,:isnot 'respongible for the consequenceS of It' collisIon between and ltrlotbElf 'vessell when, by the: conduct of her own· agents or' aelvantl'i, she'hasbeenguiltyherself, whether alone orliy participation with ofthiHvTong'ol-.'negligence causing the collision. She is for the misconduct of the tug, but is for her own misconduot.. The circumstanoe that her officers and crew are aboard of her at thetime,andassistil1g inJ'her navigation, does not make her liable for the consequences ofacollislon. But if through their fault, either of ornission or commission, she collides with another vessel, she is answerable, and cannot escape liability because at the time she was in tow of/dug. This is so, because all those who participate in a wrongful act',Lierther of malfeasance brmisfeasance, whether they are principals or are merely agen.tsorservants, are jointly and severally liable for the cOn'sequences. . .,The earliest reported decision in thisconntry in which these questions were: considered is Sprotd v. Hemming'Way, 14 Pick. 1. In that case, a brigtowedastembyllisteamboat upon the Mississippi river was brought in collision with a schooner lYing at anchor. There was evidence tending to shQW that,in consequence of the negligence and bad management of
· "'RE EXPREl'lS.
893
those who had the care and conduct of the steamboat, the vessel in tow, without any culpable negligence or unskillfulness of those who had charge of her,. was. thrown outar the track of the steamboat, and so caused'the collision. .The jury were instructed in theoourt below that if the collision took place through the negligence, unskillfulness, or conQuct of those who had charge of the steamboat, the owner of the brig was not liable. The appellate court, Chief Justice SHAW delivering the opinion, applying the rule of retrpondeat BUperior, sustained the correctness of these instructions. In the course of the opinion he pointed out 80me differences between the case of a vessel towed astern and one lashed to the tug, using the following language: 1I:0n'bollFd the ship towed' allternby means of a cable,'something and ought to be done by the master and crew in steering, keeping watch, 01).. serving. ·\be obeying orde.rs and !ligns, and if there be any want of care and ill the performance of those uuties, and damag.e ensue, then the case we have been does not eXIst; the damage isattributable to the master and crew of the towed ship, and they and their ownel'S must sustain it. · .· · Then,supposing all duties faithfully performed on board the towed vessel, and the damage to be caused by the negligence or miseonduct,of the master and crew of the steamboat, there:is!Do difference between .sl}ip. Wbich is and the ship astern, whicb thecaS8 oUhe is partially so." ,.
In the Case of TIwJohnFraser, the first adjudged ease in which the questions wereconsidered:by the supreme court, (21 How. 184,) the colIisionwasbetween a vessel ·in tow by·a steam tug·and a vessel at allchor, fu whioh both thetng and the vessel 'were in fault. The court exonel'med the tow, because it appeared th:a.tshe had not been guilty herself of any fault or negligence; but the opinion implies that she would not have been exonerated if she hag. not adopted active measures herself to prevent collision. The court said: "It is indeed said by some of the ,witnesses that if she had put her helm to the larboard, instead of to the smrbi)arti,'as'sobn as she was cast off. she might have passed in safety on the other side of the James CJray, but the weight of the proof is clearlytotbe contrary, and we al'e convinced that she adopted the only chance for safety by putting her helm to starboard, and endeavoring to pass on the same side that the steam tug had passed." .
The case of$turgis v. Boy((T', ·24 How. 110, in which the collision was between a ship in tow of a steam tug to which she was lashed and a lighter, contains a discussion of the general doctrine, and the opinion cites and follows Sproul v. Hemmingway and The John' Fraser. In The Virginia Ehrnw/n,97 U. S. 309, the collision was between a ship in tow ofa tug' and a dredge lying at anchor. Both the tug and ship were held to be ill fault, the tug because she unnecessarily took the ship into too close proximity to the dredge, and the ship· because she ought to have observed the dredge and avoided her by porting her helm. Some expressions in the opinion in the case, of The Doris Eckhoff, recently de. cided by this court, (tH. S. App. 129, 1 C. C. A. 494,50 Fed. Rep. 134,), to imply that the tow is not liable for the conse. quencEls ofa;'cOllision between lierselfand another vessel, when her only
J'EDElLUJ
Bll1iPQBTER','voL 52.
faiult·hall been, thatof:'passive acq\1iEtlcence in followirig tbe:movemenUI' ofthe'tugJ '·· Thege' ex::PI'Qas.iOM ·wereaddressedto the> iw, hand, and ,ti:lisc6h.ooiv-ed:.1 ' Ill: t,ng., "lbbaHaw wmilch·lleqUlrtkl-:vessels. to'ibe aloogiU1e IDlddleof, :taken rthfJ·tow;on' ooe, [aide :oftbe'lch8.pllel,J liThe cause ,of howevtll'.:\waStBirank,sheerj:cu1pablY'\makle :by, :the tug just as! rske 'bro\lghtthe tl},w;neady: !opposite' another jVeSller proceeding in 'a cbl.11irary'dlreotion. ,The ,tow' and tlidall 'in her power t(Jiedurtuir8.ct-tho fault i oftthe'1mgj'butwithout avail;: and in the opinion, thismrcutn&tance is aomtnentedon'as'controlling.,' ' What the judgment really decides is that the tow was notllespgnsibIe, wholly. orlin part; for a falllt, cOO\lIlitted by steering'af'ter the tug outsidElrthe,'midcbannelol: the river. i.';' Of the Niagara were nclne the less, the agents and in the of the CharIll" COl1 sequentIy, of partiQiplltion in the fallH' by which the Expresswasinjuredj,is liable,with the tugs for the: injuries done to tbeExpress. Bothtugs(ue liablej'beeausetheywereengaged in 8. joint undertaking, were tbe'l>ropelty of is'ame owner, alld'the collision was caused by the concurrent negligence of the master of each. ', ' .The :deereesibelo:Wprotier1y.apportiQned, the damages, for the -injudes of the Expr.eSS:Ningara ,andnthe tugs, and divided the ages sustained by ,the Niagata betweenithat :vessel and the two tugs. The decrees are affirmed. witbAbe; oosts of tbis, court to the owner of press. 'As between the other parties,no,lfosts in ,this court are allowed. ,I
Iep) In re TOW.AGk
Co.
CJ)istrtdi
iJ: New
Dece,mbei' 1,
The'steallJ.' tug M<!Caldiii' Brothers, g-otng up the I;IudsQDwithout a' tow, met :nearly head &Iud head tug lee Xing, with a tow'on a hawser, just below N011/3. dinvaB ,flood III tlle cUlltom,for bOll.tll.gl'ing, up ,in to, ,ta,ke, the midWe rl"!er.The , captBIU and pilot of the ,,:McCaldm Brothers were undel" the, infiudb'ceof' liq'uor, andtha:t boat IIheel'edtO,thll'eaBt'side) ()f theriV'>er;i(>u. which "sid«f the Ice' ;lqng, was }lomjng q.P'W"1I,., pf the, 90MB blelW W:hlstieB, in tp, ,half a mIle away. 'The Mc0ailih1' 'Brothers waW 'strack ,ani lhiel' port bow. anti Bunk. Held, 'tor! tb'u'do1lis!ph lay:,dtil )the' :Mc.Caldln &olhers; but tl!at,as. it find, by the Ice Kmg !ll,ghtD.:?t have otuie IDpreventlDg the c.OllJluon; /uld, ,that both vessels W'llrtt liable. ' ",,, " ",'", ',,,', ,'" " < , ' ; '
-.- 8ir.JIU,VfisIlLl MIlBTlNG.,.,.. JNSl'EOTORS' HULDa..,.-: NECESSITY il!'OR SIGl:i;\:{.ING. , " I, , , ' , , , · "", , " , ,, , '" , " ,