THE CHARLES MORGAN.
913
THE CHARLES MORGAN. (Di8fJrict Oourt, D. Kentucky. Mav 3. 1881.)
1,
CoLLIBION-PASSING BOAT.
An and pasSing boat takes upon herself the peril 01 determining what is a safe distance in passing another boat going in the same direction, and must bear the consequences of a misjudgment in that respect. 2. SAME-SAME.
In determining the question of distance, howeveT, the passing boat has a right to assume that the other boat is well equipped, and is being managed and run with ordinary care and skill. SAME-SAME.
After the boat which is being passed has replied to the passing boat's signal in the affirmative, she is bound to continue in her then course, if it can be done without immediate danger to herself or other boats that may be in or along the river.-[ED.
In Admiralty. J. K. Goodloe, L. H. Noble, and Bentinck Egan, for libellant.
Hamilton Pope, James Speed, and W. A. BuUitt, for claimant. BARR, D. J. The steamer Charles Morgan, running between New Orleans, Lonisiana, and Cincinnati, Ohio, left her landing at the former place a few minutes after 5 o'clock A. M. April 24, 1880. The steamer John W. Cannon, then running between NewOrleans and Bayou Sara, Louisiana, left her landing a few hundred yards below, shortly after the Morgan, and both boats proceeded up the river. The Cannon, being the fastest boat, soon overtook the Morgan, and in passing in front of a place called the Bull's Head, in the city of New Orleans, the boats collided. The Cannon was disabled by this collision, and her owner, John W. Cannon, has filed this libel against the Morgan, alleging that she ran into the Cannon, and that this occurred by reason of a want of Care and skill on the part of the officers and crew of the. Morgan, and without the fault of the officers and crew of the Cannon. The claimant, Thompson, owner of the Morgan, denies in his answer that the Morgan ran into the Cannon, and denies all negligence and want of skill upon the part Qf the officers v.6,no.9-58
1H4
FEDERAL REPORTER.
and crew of his boat, and states affirmatively that the collision was caused by the negligence, want of skill, and the improper conduct of the officers and crew having charge of the Cannon. Many depositions have been taken by each party, and, as is usual in such cases, there is much conflict in the statements of the witnesses. The Cannon was the fastest and passing boat; it was, therefore, her duty to pass the :Morgan at a safe distance.· In considering whether or not it was a. safe distance to pass, the officers of the Canuon had a right to assume that the Morgan was well equipped, and was being managed and run with ordinary care and skill. This being assumed, the rule is that the approaching and passing boat takes upon herself the peril of determining what is a safe distance in passing another boat going in the same direction, and must bear the consequences of a misjudgment in that respect. Judge Betts, in considering the duty of an approaching vessel in the case of the Steamer Rhode Island, Olcott, 515, says: "The approaching vessel, when she has command. of her movement, takes upon herself the peril of determining whether a safe passage remains for her beside the one preceding her, and must bear the consequences of misjudgment in that respect." See, also, Oceanus, 12 Blatchf. 430; Whitridge v. Dill, 23 Howard, 454. There is another rule which is material in this connection, and that is: after the boat which is being passed has replied to the passing boat's signal in the affirmative, she is bound to continue in her then course, if it Cl1n be done without iill" mediate danger to herself or other boats that may be in or albng the river. See Rules 22, 23, 24, and section 4233, Rev. St., and Pilot Rules for Western Rivers, No.8; The Grace Girdler, ,7 Wall. 202. In this case there was a collision, and I should therefore assume the officers of the Cannon had misjudged the proper distance in passing the Morgan, unless they show by the evi· dEmce a want of reasonable care or skill upon the part of those in charge of the Morgan. The burden of proving thiIJ is upon the libellant. .If, however, he proves that the Morgan, after
THE CHARLES HORGAN.
915
the Cannon's signal affirmatively, cha.nged her course without immediate necessity, and the collision thereby occurred, he has sustained this burden and his cause, unless the claimant proves this change was the result of causes which reasonable care and skill could not have avoided. It may be assumed as undisputed in this record that the river at the place of collision was very deep from bank to bank. It was from 1,700 to 1,800 yards in width, and the Orleans sbore was lined with shipping. The boats were running at their usual speed-the Cannon at the rate of 12 or 15 miles an hour, and the Morgan at the rate of 10 or 12. miles an hour. The Cannon was 285 feet in length and the Morgan 815. The Cannon had the most power and the 'Morgan the largest tonnage. The Cannon came up on the larboard side of the Morgan and blew two whistles, whiohwere promptly answered by the Morgan. The Cannon then attempted to pass, and, doing so, the boats collided. The Cannon was injured by having the forepart of her wheel-house broken in, the gallows-frame of her starboard wheel knocked down, and this oaused that wheel to drop into the river after she had. run a few hundred feet. The Morgan was injured slightly, only about two feet of the house on her larboard side being knocked off. This was some 53 feet back of the flagstaff, and immediately behind the curve which makes the bow of the boat. The testimony is much too voluminous for me to attempt to review it. I shall content myself with indicating my conelusions upon disputed facts, and briefly the reasons to those conclusions. I think the decided weight of the testimony is that the Morgan changed her course after she replied to the Cannon's signal, and that she ran into the Cannon, and not the Cannon into her. This conclusion is sustained by all of the officers and passengers of the Cannon who have testified, and by others who were not 01;1 the Cannon. I think it is sustained by both of the pilots. who were on the Morgan. Mr. Jamison, who was at the wheel of the Morgan, states distinctly he changed the course of the Morgan, and says this was.done because of
916
a high wind blowing towards the Orleans shore. In another place he says this was necessary to avoid fit tug and barges which were in front of the Morgan. It is trae that he says in his redirect examination that this change was befol'e the signal, but this is unsustained by any other testimony, and there was not the slightest reason for such a change at that time. Mr. Phillips, the other pilot, who was in the wheelhouse of the Morgan, says "the Morgan started to go from the shipping-to run from it," when the Cannon was about abreast of the Morgan's pilot-house. The other evidence distinctly shows there was not a high wind blowing to the shore, nor were the tug and barge in the way of the Morgan. This tug was the Mahomet. With a barge in'tow she was going up the river, and the decided weight of thetestimoriyis' that she Wfltstwo and a half or three squares above the Morgan, and ip.side of her course. There was much conflict in the testimony astothe distance the Morgan wasrullning from the shipping81t the time the Cannon came up. Oaptain Albert Stine "thinks ·his boat, the Morgan, was rttnning ftom the shipping fit distance of 125 feet. Other of neS:S8S put the 'distance less, and some of thelibellanysmore. 1 should think, from all of the evidence, the ,distance was from 100 to 120 feet. It seems, however, to be the universal testi. mony that she was sufficiently far froID the :shipping to be safe if she were not crowded in. Whether she would have been safe, had she been crowded in is not material to the present inquiry, because I do not find from the testimony that she was crowded in. The material inquiry is, did the safety of the shipping require that she should turn out from the shore ?and I think the evidence proves that it did not. It is quite probable to those on the Morgan,who did not have the opportunity of observing accurately the courses of the boats, it looked· as if the Cannon was running across the bow of the Morgan. This would be the appearance from the Morgan, though in fact she might be rnnning towards and into the Cannon; nor is the character of the blows which these boats received inconsistent with the conclusion that the Morgan ran into the Cannon.
917
It is most probable that the Morgan did not strike the Cannon at the angle which most of the libellant's witnesses say she did. It is probable that the Morgan sheered towards the Cannon at a sharper angle than that at which she struok her. The testimony shows that the Morgan's guards were three feet higher than the Cannon's. It is probable that the Morgan's pilots, both of whom were then at the wheel and using all of their strength, had succeeded in changing her course somewhat, though the change was not sufficient to prevent the higher guards of the Morgan going in and giving the (Jan" non a sideling blow. The learned counsel for the claimant, however, insists that even if it be true the Morgan sheered and ran into the 'Cannon, it was caused by the current or suction produoed by the running of the boats in such proximity, and tha1lthe Oannon took the risk ·of this when she selected her dists.nceto'pa,88{ and for that reason cannot complain. ,iI'," ,;T There is some evidence tending to sustain this it has been presented with much ability and ingenuity by the counsel, but my mind does not assent to it. There is much contrariety of testimony as to how far the Cannon was outside of the Morgan as she came up to pass her. The libellant has taken the testimony of some 17 witnesses upon this ppint,anq the average of these witnesses is 154 feet. The claimant's witnesses put the distance from 25 feet to 200 feet. The average of all the 'witnesses in the is about 128 feet. It is probable that the Cannon was running from 300 to 350 feet from the shipping along the shore, and about 150 feet outside of the course of the Morgan. It is quite clearly proven by many other pilots, whose depositions are taken as experts, that large can and do safely pass within, say from 15 to 100 feet. There is evidence that boats running very close sometimes become locked, but this would indicate that the tendency was to go together broa.dside, and not across or into each other. These boats were, say, 150 feet apart. The Morgan is the larger boat, though the Cannon is the faster and the more
918
powerful. The suction caused by the wheels of each boatwould not materially differ. I do not see why they would not about neutralize each other; and, if this were not so, why the suction would not be greatest about and immediately behind the wheels of the respective boats. If this be true, this suction would have a tendency to bring the wheels and of the boats together, and thus throw the bows out, and the power in the boats, if applied, would cause the bows to go from each other. If any collision was caused it would be by tbl;l back part of the boats swinging together. Whatever may be the truth upon this subject, the theory advanced is too shadowy to base a judgment upon. I think the Morgan, after she signaled the Cannon, chanKed her course without any necessity for so doing. In doing this she l;iolated a well-known and long-established rule of navigation, and is therefore liable for the damage done the Cannon. The case should go to a commission sworn to ascertain and report this daiDage.
To
MARY SHAW.
(District OOlJ,rt, D. Margland. April 16, 1881.) L CoLLIIlWN- TUG AND Tow.
A tug, with in tow, having given two of her whistl& without hearing any reply, steered in a narrow channel to pass au :: approaching steamer starboard to starboard instead of port to port, and didllot repeat her signal until too late to avoid a collision, whicb took place between the steamer and the tow on tbe extreme edge of the channel. lIeld, tllat the tug was solely to blame. 2. SAME-NAVIGATfON-LoCAL CUSTOM·.
Held, that there is no local custom iIi the channels in the Patapseo· river, and in the Chesapeake bay, at its mouth, for large vessel" descending the ehl\nnels to take the easterly side, and that the establishment of such a custom, not being called for by any necessity, is tl) be deprecated as a dangerotis departure from the settled rules of navigation. Tn Admiralty.
Crosfl-1i!lels.
THE MARY SHAW.
919
John H. Thomas and A. Sterling, Jr., for libellants. Charles Marshall and Sebastian Brown, for respondents. MORRIS, D. J. These are cross-libels growing out of a collision between the British steam-ship Gulnare, 250 tons, and the schooner Charles Morford, 360 tons, in the Chesapeake bay, near the mouth of the Patapsco river, on March 5, 1881. The Gulnare left Baltimore, bound for the West Indies, on the aftern@on of March 5, 1881, and at 7 :80 P. M. was about two-thirds the way down the Craighill channel, when she met the steam-tug Mary Shaw coming up the channel with the schooner Charles Morford in tow. The case stated by the libel filed by the owners of the Gulnare is that those in charge of her first saw the lights of the tug and tow at the distance of about two miles, and continued to see both their side lights until they had approached to within about three-fourths of a mile, when they heard one whistle from the tug, indicating that she proposed that the vessels !'lhould pass each other on the port side; that the Gulnare at once responded with one whistle, and ported ;mfficiently to shut out the green lights ot the tug and schooner, and proceeded, keeping their red lights half a point :>r more over the steamer's port bow; that when the tug got within about three lengths of the steamer she blew two whistles and suddenly starboarded her helm, shut out her red light, showed her green light, and crossed the steamer's bow; that the steamer immediately stopped, reversed her .engines, and succeeded in clearing the tug, and, while going :tstem, endeavored, by starboarding her helm, to tum her head to starboard so as to avoid the schooner, but that the schooner porteti her helm when nearly abreast of· the steamer, and, being under the preSH of all her lower sails, struck the 8teamer near her port cat-head, and so injured her that it was found necessary to have her towed back to Baltimore for repairs. The Case stated by the answer of the owners of the tug is that she was comin(;{ up the CraighiH channel, having the schooner in tow attached to her by a sixty-fatho,m ha:wser, and was near the western side of the channel; proceeding
920
about five miles an hour, when she first saw the lights of the steamer. They aver that it is customary for lighter craft approaching the port of Baltimore to give the eastern side of the channel to larger vessels, and especially to large steamers, as they can be more safely navigated on that side; that when the lights of the steamer were first seen, all her lights were visible, and that when she was between a mile and three-quarters of a mile off the tug gave two distinct and clear blasts of her whistle, indicating that the steamer should pass on the tug's starboard side; that no response was given by the steamer, but she continued to approach, showing both her side lights, when the tug again gave two blasts of her whistle, to which the steamer responded with two very faint whistles, but continued to show her port light, as if going across the course of the tug, when, perceiving that the steamer had not heeded her' signals, the tug starboarded her helm, and the steamer passed her about tlie steamer's breadth off on the tug's starboard side, and came into collision with the schooner, the collision taking place outside of the western edge of the ·channel. The Brewerton and Craighill channels form a continuous water-way from the Chesapeake bay to the port of Baltimore, the first being in the Patapsco river proper, and the latter in the Chesapeake bay at the mouth of the river, and nearly at a right angle with the first. They are from 250 to 400 feet wide, and were made by dredging out the natural channel. The navigation of these channels requires careful seamanship and an exact observance of every rule intended to prevent collisions. Appleby v. Kate Irving, 2 FED. REP. 924. The rule governing steamers, and the signals they shall give when about to pass each other in these channels, is expressed in the eighteenth rule of the act of congress: "If two vessels under steam are meeting end on or nearly end on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other;" and also by the pilot rules for lake and seaboard navigation: , "Rule 1. When steamers are approaching each other' head and head,' or nearly so, it shall be the duty of each steamer
THE MARY SHA.W.
921
to pass to the right or on the port side of the other; and the pilot of either steamer may be first in determining to pursue this course, and thereupon shall give as a siginal of his intention one short and distinct blast of his steam-whistle, which the pilot of the other steamer shall answer promptly by a similar blast of his steam-whistle, and thereupon such steamers shall pass to the right or on the port side of each other. But if the course of such steamers is.so far on the starboard of each other as not to beconsidered by the pilots as meeting head and head, 'or nearly so,' or if the vess.els are approaching each other in such a manner that passing to the right (as above directed) is deemed unsafe by the pilot of either vessel, the pilot so first deciding shall immedi\Ltely give two short and distinct blasts of his steam-whistle, which the pilot of the other steamer shall answer promptly by two similar blasts of his steam-whistle, and they shal1'pass to the left or on the starboard side of each other." "Rule 3. If, when steamers are approaching leach other, the pilot of either vessel fails to understand the course or intention of the other, whether from the signals being given or answered erroneously, or from other causes, the pilot so in doubt shall immediately signify the same by giving several short and rapid blasts of the steam-whistle; and if the vessels shall have approached within half a mile of each other, both shall be immediately slowed to a speed barely sufficient for steerage-way, until proper signals are given, answered, and understood, or until the vessels shall have passed each other." The answer of the tug and the testimony of her officers attempts to set up a custom by which it is claimed the stat. utory rule is superseded. By this alleged custom they assert the rule to be that large steamers and heavy ships always take the easterly side of the channel, that being .the side marked by buoys, and therefore the safest for them to keep to. There is no current or tide to contend with, and the only reason for such a custom would be that the depth is somewhat more uniform on the easterly side, and the buoys being on that side, furnish a guide for more exact steering by daylight, and that in making the turn from the Brewerton into
922
the Craighill chatinel it is more easily made on the outside of the curve. The most experienced Ohesapeake Bay pilots, in the habit of daily piloting the largest steamers, testify that there is no such custom. The president of the board of pilots expressly denies its existence, and says that they understand that the vessel-desiring to proceed contrary to the statutory rule must get permission of the other vessel, and if the other vessel does not give it the rule must be obeyed. No doubt the fact that heavy vessels do frequently ask for and obtain, by an'interchange of signals, such permission, may have lead to expectation that they will usually ask it, and smallercraft,tna.y, as a habit, hold themselves ready to acco:rd it; 'butthis the extent to which the practice edends. It seems tome that its further extension is to be deprecated. These channels are traversed by vessels of all nations, and any attempt to depart from the well-known rules of maritime law, and t08ubstitute local customs, not founded upon actual necessity, but upon mere convenience, is likely to lead to uncertainty and disaster. The dangers arising from a departure from settled rules of navigation have lead admiralty courts to hold that the local custom which is to justify such departure must be founded upon necessity arising from permanent local peculiarities, such as rocks, strong currents in crooked rivers, and the like, and that the exception should be as distinct and definite as the rule itself. Lowndes on Collisions, c. 3. In the present case those in charge of the tug seem to have mistaken the Gulnare for a large steamer, and to have expected that she would want the eastern side of the channel, and they gave her, at the distance of nearly a mile, two blasts of the whistle as a signal that they proposed to take the western side. They received no reply, f>sthey state, but they steered ,for the western side and proceeded without any further signal until the steamer was within three lengths of them, when they sigualled again. The vessels had then got into such proximity that a collision was imminent if not. unavoidable.
is
THE HARY SHAW.
923
The case of The Milwaukee, 1 Brown, Adm. 313, is in many respects similar to the one under consideration, and is very ably discussed by Judge Longyear. He very distinctly states the law applicable to the of a steamer which, in a narrow channel, has gone contrary to the statutory rule, and undertakes to justify herself by an interchange of signals. As he states it, the burden of proof is upon such a vessel to establish by clear and satisfactory proofs-(l) That a propo· sition to depart from the statute was made by her by means of the prescribed signals, and in due season for the other vesselto receive the proposition and act upon it with safety; (2) that the other vessel heard and understood the proposi. tion thus made; (3) that the other vessel accepted the proposition. Taking the case as made by the answer of the tug, and the testimony offered on her behalf, it plainly appears that those in charge of her relied on their expectation that the steamer would desire to take the eastern side of the channel, -that is to say, upon the custom which they allege to exist,and paid no a,ttention to the fact that their signal was not answered. Dr. White, a passenger of the schooner who happened to be in the tug's pilot-howse, testiftes that he saw the steamer's green light when the tug's first signal was given; that they received no answer, and then the steamer's green light was shut out, and they saw her red and continued to see her red light until the steamer was within about the length of the court-room, when the second signal was given; that the steamer then answered with two whistles; that he was getting alarmed, and he said to the mate: "It is all right, now he has answered;" and the mate replied: "Yes, but she is showing her red light all the time; she don't change her course." , Richardson, the mate, who was at the wheel, says, when he gave the first two whistles and starboarded his wheel the steamer was about three-quarters of a mile off, and he expected she would want the east side of the channel, and he steered to bring himself on the western side; that he listened
924
for an answer, and, getting none, blew two more blasts, which were answered with two, and about that time the steamer's green light was shut in, and the steamer seemed about to run over them. He estimates that 'when the second signal was given the steamer was within two or three of her lengths from the tug. The master of the tug, who was also in the pilot-house, tells substantially the same story. It is apparent, therefore, that those in charge of the tug, notwithstanding she received no answer to her first signal, persisted in going to the westward, and attempting to pass on the steamer's starboard'side, until the steamer, continuing to show her red light and obviously also going to starboard, was so close that a collision with either the tug or her tow was almost certain. Whether the two blasts of her whistle, then given by the tug, Were answered by the two blasts, as they claim, or with one, as those on the steamer testify, does not seem to me to be, in itself, a matter of serious importance, for neither vessel then had it in her power to perform any maneuver which would, except by some lucky chance, have averted the disaster. It is clear that the tug was in fault. I have had difficulty in satisfying myself to whether or not the steamer was also to blame. No one, 1 think, could take up the consideration of the steamer's case without a leaning against her, and a predisposition to find her in fault. Her officers, although accustomed to the command of sailing vessels, were almost without experience in steamer navigation, and it was their first voyage in this steamer. They were not familiar with the channel, and they were running out in the night-time,-a very bold thing for them to undertake unassisted, and which rea· sonable prudence would seem to have forbidden. But because her officers were likely to fail in seamanship, I am not to take it for granted that they did, unless the evidence convicts them of it. The steamer was, at the time of the collision, on that side of the channel on which she had a right to be; all her officers were at their posts of duty; they all testify that they heard the first signal of the tug, and that it was but one blast of the
925
whistle, and that they answered it with one blast. The vessels were then nearly a mile apart, and it is quite possible that, without neglect, they did so understand it, more especially as one blast was the signal they naturally expected to get. That their reply was not heard on board the tug may have been because the steamer's whistle appears not to have been a loud one. Supposing,the tug was going to pass them on the port side, they immediately put their helm a little to port. They declare that they saw nothing to undeceive them, as to the tug's intention, until they heard her second signal and saw her green light, and then they were so close that all they could do was to stop and reverse. That the bells to stop were at once rung and obeyed I have no doubt, although I do doubt the alisertion that the steamer was going astern when the schooner struck her. There would not appear to have been time sufficient for a propeller to have stopped her headway and begun to go astern; but that her headway was greatly checked, if not entirely overcome, is, I think, demonstrated by the character of the damage resulting from the collision, as well as byjhe direct testimony of those on board the steamer. The actions of the officers of the steamer are all consistent with their account of the signals as they claim to have heard them and to have answered them, and, unless I were to assume that they were ignorant of the meaning of the signals, I do not find anything which the law recognizes as a fault to convict them of having contributed to bring about this collision. It is not improbable that a pilot familiar with the navigation of the channel, and having some suspicion of the expectation which was in the mind of the master of the tug, might have discovered something in her movements which would have arrested his attention in time to have averted the consequences of the tug's fault; but to undertake to hold the steamer legally blamable because her officers did not have this high degree of local experience would be, I think, unwise, as by a strict adherence to the statutory rules the navigation of the channel should be safe to mariners having. the ordi· nary experience and capacity necessary to navigate vessels.
.926
FEDEnAL REPORTER.
I have not overlooked the question of the steamer's speed. She would appear to have been under three bells, at about three-quarters speed, say from seven to eight miles an hour. She was a very small steamer, easily handled, and drawing only from ten to twelve feet of water, and she could, without much risk of grounding, have run outside of the channel on either side. Such speed on a clear night, when lights can be plainly seen, is ordinarily perfectly safe for such a vessel, and I cannot see that under the circumstances it was improper. I had in the case of Appleby v. The Kate Irving, 2 FED. REP. 924, to consider the question of speed in these channels, and in that case held the steamer to blame for proceeding at eight miles an hour, which was her full speed. That, however, was a heavily-laden steamer of 1,500 tons, compelled by her draught of water to keep in the channel, and keeping up her full speed with an obstruction right ahead and in full view; and in that case it appeared to me that the collision resulted in part from a sheer the steamer took arising in great part from her high speed and the difficnlty of steering her in the channel, and that, as she had timely notice that the approaching vessels must get out of her way in order to avoid a collision, she should have slackened her speed or have been going at a less rate to enable them to do it, and I divided the damages. In the present case, upon all the testimony, I am brought to the conclusion, although I confess with some hesitation, that the steamer is not in fault, and that the tug must bear the whole damage. Nothing has appeared to lead me to think that the schooner committed any fault, or that any mismanagement is to be imputed to her.
THE GALINA.
92"(
(District Court, E. D. Ne1JJ York. 1, DESERTION-FoRFEITURE Oll' WAGES.
--,1881.)
Where an assistant engineer of a steam-ship, after a disagreement with the chief engineer, was ordered off duty, and left, but did not leave the vessel, and afterwards the chief engineer requested him to go to work again, but he refused, and being sent for by the captain was told that he must go to work or leave the ship, whereupon he left and brought an action to recover his wages : Held, that his refusal to return to his duty, and his leaving of the ship thereafter, make out a case of desertion and entail forfeiture of wages earned.