Edward J. Barton Lighterage Co. v. Davis

HOUGH,. Circuit Judge (after stating the facts as gbove). The situation above depicted is very familiar in this crowded harbor, yet always dangerous and demanding a care certainly not here accorded it by either vessel. We agree with the court below that No. 27 was at fault, for not maintaining a lookout. The Transfer No. 8, 211 F. 965, 128 C. C. A. 463. Considering, however, the darkness of the hour, ,we are not inclined to stress the 27’s failure to see the Fuller across the pier, while, as for seeing her staff light, that would hardly give indication of what she was doing. The Fuller we find at fault also. Whatever force there is in failure to see across the pier applies more injuriously to the Fuller than the 27, for the latter was much the larger tug, and one with far more free-board. Again, Fuller did not blow a proper slip whistle. There is no positive rule as to the length of such a whistle; it depends on circumstances. The Bangor, 212 F. ‘706, 129 C. C. A. 316. In this instance the vessels at the intervening pier end, one of them light and high out of the water, were a greater obstruction to vision thhn the pier itself, and Fuller should have heralded her coming until clear of those vessels, especially when proceeding at so considerable a speed for leaving a slip in the dark as 5 miles an hour. Further, Fuller was at fault for inattention. ■ She had a man forward as lookout, but the duty of looking out is but a part of the duty of being vigilant, and no one on board the Fuller was sufficiently alert to hear any part of a rather unusual array of whistles, any of which would have apprised a careful navigator of the probability of trouble ahead; for every one of them told of a vessel that eould not be seen until the slip was cleared, and near by the place that Fuller must occupy at the moment of clearance. Decree modified, so as to divide damages; costs, below to be also divided. Costs of,this court to appellant.