Lilliston v. The Manhasset

Hughes, J"., {after stating facts as above.) There can be no doubt that the libelants that have been named are entitled to damages. If the ferryboat was in fault they had contractual relations with it which justify damages for injuries. If the tug and barge were in fault, they are entitled to recover damages from them as for tort; and so I will first dispose of that part of the case before entering upon the question of fault. The case of Mrs. Lilliston is the most serious one. She was dangerously and painfully injured, though, fortunately, as has turned out, not permanently so. She suffered excruciating agonies for a series of many days. She was prostrated and helpless for months. Her injuries would doubtless have proved fatal, but for the skill of her physician, the recuperative energies of a strong constitution, and the careful and assiduous nursing of friends. I will sign a decree awarding her §2,500, and one in favor of her husband individually, for the amount of her medical bill, and for the sum of §200 besides. This latter amount is intended to cover loss of time from work, and miscellaneous expenses incidental to the illness of Mrs. Lilliston. I will sign a decree in favor of Cooper for §750, plus the amount of his medical bill, — the first sum to stand for loss of timo and the expenses incident to his wounded condition. I come now to pass upoirithe crucial question in this trial, namety, whose was the fault which caused the collision? The cause of the accident may be stated in a nutshell. That cause was the mistake made by Capt. Smith in supposing the white light which he saw before him was that of the tug Phillips moving from him, and in porting his helm in order to let it pass out of his way. Instead of that being the case, the light was upon a barge moving towards him when first seen, and moving in such — 417 — a manner that when lie did make his tardy movement, tbat movement rendered the collision inevitable. If the light had been moving from him, his determination to pass under the stern of the supposed vessel was, no doubt, right enough; but the light being in fact on a vessel that was approaching him, his movement was an attempt to cross her bow when he was already upon her, and the collision was rendered an absolute certainty. Therefore, the real question to be considered is, through whose fault was it that Capt. Smith made the mistake that has been described? It may have been his; it may have been Capt. Cason’s; it may have been the fault of both. First, as to the Manhasset. She was moving, in that dark, rainy night, across a harbor navigated day and night by many vessels, at the rate of 9 to 12 miles an hour, before a strong wind and tide, without a lookout or a deckhand above decks to serve as eyes and ears, except the man at the wheel, who was acting, alone and singly, as master, pilot, wheelsman, and lookout, all in one. Moving, thus blind and deaf, with such force and rapidity, in a harbor, in the dark, loaded with passengers, with but one solitary man above decks, such was the condition in which she encountered disaster. There are cases in which res ipsa, loquitur, — fault is self-proclaimed. In respect to lookouts, the law is positive and absolute. The decisions of the courts are replete with admonition of the necessity of the lookout as a sine qua, non of safe navigation. It were vain to devise laws of navigation, or to agree upon rules of the road, if ships were not required to keep one or more lookouts constantly and properly posted during the time they are in motion. The specific duty of the lookout is constantly to search the horizon for objects that may affect the navigation of his ship, and to report the varying conditions the ship finds herself in in relation to other vessels in the same ■waters, in order that she may be navigated in obedience to the law’ or rule of navigation applicable to the conditions reported. The lookout’s duty is distinct and different from that of the navigator. He is in a dif-ieren t position on deck. Ills mind and eye are differently occupied; his work and duty as different as that of one man can well be from the work and duty of another. The lookout of a ship is its eyes and ears; without him, she is blind and deaf. There is close and responsive relation between him and the pilot. His eye constantly and searchingly scans the face of the water before and on either bow of his ship and liis voice is prompt to warn of every object that presents itself to the vision. The pilot’s mind is intently upon the lookout, and his hand on the wheel intuitively responds to the lookout’s voice. A lookout is only a lookout thus attracting the pilot’s constant attention when he is regularly on duty. There is no such thing as an amateur or volunteer lookout. Such person has not the oar of the pilot, and his communications to him are little bettor than an impertinence and distraction. The real lookout and the pilot are essential counterparts of each other. In the absence of a pilot, the lookout’s office is useless. In the absence of the lookout, the pilot is helpless, except to the extent that he subordinates his proper duty in order to act as lookout away from the lookout’s proper position. — 418 — Neither can do his own duty in the absence of the other; and without a pilot a steamer is a blind and deaf engine of mischief threatening every object in its pathway. I repeat that the language of the admiralty courts on the subject is clear, positive, and unqualified. It admits no double interpretation. The supreme court of the United States held in the case of Newton v. Stebbins, 10 How. 607, that a steamer was in fault in not having a proper lookout at the forward part of the vessel, there being no one but the man at the wheel on deck. The supreme court said in the case of St. John v. Paine, Id. 585: “The steam-boat was in fault in not keeping on deck at the time a proper lookout on the forward part of the deck. The pilot-house, in the night, especially if dark, and the view obscured by clouds in the distance, was not the proper place, whether the -windows were up or down. A competent and vigilant lookout stationed at the forward part of the vessel, and in a position best adapted to descry vessels approaching at the earliest moment, is indispensable to exempt the steam-boat from blame in case of accident in the nighttime, while navigating waters on which it is a custom to meet other water craft.” The supreme éourb said in The Genessee Chief, 12 How. 463: “It is the duty of every steam-boat traversing waters where sailing vessels are often met with, to have a trustworthy and constant lookout, besides the helmsman. It is impossible for him to steer the vessel, and keep a proper watch in his wheel-house. His position is unfavorable to it, and he cannot safely leave the wheel to give notice when it becomes necessary to check suddenly the speed of the boat. And -whenever a collision happens with a sailing vessel, and it appears that there was no other lookout on board the steam-boat but the helmsman, or that such lookout was not placed in the proper place, or not actually and vigilantly employed in his duty, it must be regarded as prima facie evidence that it was occasioned by her fault. ” The supreme court, in The Catharine, 17 How. 177, speaking of a lookout on a sail-vessel, said: “Custom or usage cannot be permitted as an excuse for dispensing with a proper lookout while navigating in the night, especially on waters frequented by other vessels. Under such circumstances, a competent lookout, stationed upon a quarter of the vessel affording the best opportunity to see at a distance those meeting her, is indispensable to safe navigation, and the neglect is chargeable as a fault in the navigation. ” The supreme court said, in Chamberlain v. Ward, 21 How. 570: “Steamers navigating in the thoroughfares of commerce must have constant and vigilant lookouts stationed in proper places on the vessel, and charged with the duty for which lookouts are required, and they must be actually employed in the performance of the duty to which they are assigned. To constitute a compliance with the requirements of law, they must be persons of suitable experience, properly stationed on the vessel, and actually and vigilantly employed in the performance of their duty; and for a failure in either of those particulars, the vessel and her owners are responsible.” The supreme court, in Haney v. Packet Co., 23 How. 292, used this language: “The captain of a steamer, whose theory of action appears from his own testimony to be that all small vessels are bound at their peril to get out of the way of a large steamer carrying the United States mail, although he had seen — 419 — tlie schooner, and knew that the vessels were approximating at the rate oí twenty miles an lionr, retired to his cabin, tie left on deck one man, besides a colored man at the wheel, to act as pilot, lookout, and officer of the deck. These two persons constituted the whole crew on duty, besides íiremen and engineers. This person who had to perform these treble functions was the second mate. His theory is that the best place for a lookout is in the pilot-house, where, he says, ‘ I generally lean out of the window, and have an unobstructed view'.’ Accordingly as pilot he remained in the pilot-house, to direct the steersman; and, as lookout, he occasionally leaned out of the window.” After speaking thus derisively of master and second mate, and after repeating the law of the duty of lookouts, the supreme court hold that it was “the captain’s duty to have been on deck, which he was not; and that tho only man on deck, acting as pilot, lookout, and officer of the deck, was not in the proper place for a lookout to be when he was in the pilot-house.” The supreme court in the case of The Ottawa, 3 Wall. 268, hold that “lookouts must be persons of suitable experience, properly stationed on the vessel, and actually and vigilantly employed in the performance of tboir duty; and that the- master of a steamer, when acting as officer of the dock, and having charge of the navigation of tho vessel, •is not a proper lookout, nor is the helmsman.” The circuit court of the Northern district of New York, in The Northern Indiana, 3 Blatchf. 92, held that in a steamer running along a track frequented by sail-vessels, the inside of a pilot-house in a dark night is not the proper position lor a lookout. Adopting the rulings of tho English high court of admiralty, Mr. Justice Nelson held that “the want of a lookout, detailed and stationed for that specific duty, is in itself a circumstance of a strong condemnatory character, and exacts in all cases from the vessel neglecting it, clear and satisfactory proof that the misfortune encountered was in no way attributable to her misconduct in that particular.” In none of the decisions of tho courts enforcing the duty of having competent and vigilant lookouts properly stationed on steamers while in motion, is any exception made or implied in favor of ferry-boats. The circuit court of the United States for the Southern district of New York, in the case of The America, 10 Blatchf. 159, held that “in the navigation across the crowded channel of the East river at New York a most vigilant lookout from some place on the ferry-boat is required.” The district court of the Southern district of New York, in the case of The Monticello, 15 Fed. Rep. 474, held that a ferry-boat was liable for a collision which occurred about 140 feet outside of her slip, where she started without a lookout upon lier bows. The district court of New Jersey, in the case of The Ant, 10 Fed. Rep. 294, held that steamers navigating on the thoroughfares of commerce are bound to have a lookout, independently of the helmsman. English and other American authorities on the subject might be multiplied indefinitely, if it were necessary. It is safe to say tliat no rule of navigation is more thoroughly established than that wbich requires every moving vessel to have a lookout, specifically charged with the duties of lookout, and none other, and to have him properly stationed. There can be no rules for the government of ferryboats varying from those prescribed for shipping in general. The laws — 420 — of navigation are universal, and are binding on all water craft. Ferryboats usually ply in harbors, and the existence of different rules of navigation for different vessels in the same harbor would be fruitful of calamity. There was once a provincial notion that vessels carrying the United States mails were entitled to the right of way; but it has been scoffed out of the code of navigation. The idea that a ferry-boat has an exclusive right of way in a harbor, and is exempt from the conventional canons of navigation obtaining all the world over, is a provincialism unworthy of an enlightened age, and pregnant with disaster to life and property. There would be no use for settled and universal canons of navigation, if vessels were not required to have competent lookouts, prop-erl y stationed, whenever they were in motion. Rules would be a dead letter, and unsusceptible of application, if there were no lookouts. They are the key to the whole code of navigation. The Manhasset was fearfully in fault in having no lookout on the unfortunate trip which we are considering. Who can say that, if she had had a special and vigilant lookout when she emerged from her Norfolk slip, charged with the special duty of closely and timely scanning the whole harbor from the outset, he would not have discovered Capt. Cason’s barge’s light in the, distance, and narrowly studied it from the moment of first seeing it? Could such a lookout, intent upon the special duty of interpreting stích a problem, have supposed that a light which was approaching him steadily for two and a half or three minutes, was a light on the stem of a receding vessel, brightening as it receded? Is it possible that his ears set for the reception of sounds could have failed to hear two loud, coarse whistles sounded and afterwards repeated, which were heard by as many as three passengers on his boat, and were heard all around the harbor by every man whose business led him to expect the tug which gave them, and whose attention was-on the alert in regard to them? I am firmly persuaded that if there had been a special, experienced, vigilant lookout on the Manhasset on the night in question, proper attention would have been given in time to the light of the barge, and proper response made to the double whistles repeated, which were sounded by the tug. I am persuaded that Capt. Smith’s mistake in supposing an approaching light was a receding one, and the consequent collision, was due to the want of a keen-sighted and sharp-eared lookout on the Man-hasset. The Manhasset was in fault in respect to the lookout, and is responsible for the collision, unless it can be shown that the tug and barge were also in fault, and by their fault contributed to the accident. I come, therefore, to deal with this tu quoque plea. The princqjal complaint against the tug and barge is in regard to their lights. As to the tug, the charge is that, although she may have had the regulation lights in their places, and burning, yet she took a position beside the barge which prevented them from being seen by the ferry-boat. The law, in rules 3 and 4 of navigation, not only defines the number and kind of lights to be carried by a steamer in towing another vessel, but fixes with precision the places at which these lights are to be carried. Its requirements were complied with' by the tug. The same law forbids — 421 — the carrying of any other signal-lighls than those designated, and, in doing so, forbids by necessary implication any change in the position of the lights it provides for. The tug, therefore, had no right to elevate her lights above their legal position, and, if she bad done so, her lights would have been misleading, false, and unconventional. Therefore the objection to the manner in which the tug carried her lights resolves itself into an objection to her talcing position on the west side of the barge, where the ferry-boat could not see them, and not on the east side, where that boat could have seen them. But the tug had sufficient reason for placing herself to leeward of the barge. The wharf to which she was towing the barge was on the side on which she placed it; and the tug was exclusive judge of the position she should occupy towards the barge. Her lights were visible to all the vessels she would pass lying on her port side; all the vessels which might be at the Portsmouth wharves; ail that might be at anchor on the Portsmouth flats; all that she might pass or meet on her port side, coming in from or going out to the lower harbor. To say that she should have ignored all this shipping, and, at great inconvenience, changed sides with her barge, and crossed over to Town point in a manner to mako it difficult to land the barge at that wharf, is virtually to say that she should have navigated the harbor, not with reference to other shipping, but exclusively with reference to the ferry-boat; not with reference to the facility of effecting the landing wbicli she had in contemplation, but solely with reference to meeting the ferry-boat. Such a contention is only another fruit of the theory that the ferry-boat has some special rights and importance in the harbor superior in dignity to those which attach to other vessels. I cannot recognize such pretension. There was no obligation upon the tug to place herself on the east side of the barge in order that her lights might bo visible to the Manbasset, rather than to all the vessels she might pass on her Portsmouth side. She was not in fault in the fact, of her lights being on the side of the barge where the Manbasset could not see them. The case of Chamberlain v. Ward, 21 How. 564, is not in point. The court held there, simply, thatllie lights of a vessel must he kept trimmed and replenished with oil, and not permitted to grow dim and go out by midnight. It is complained, as to the barge, that her side-lights were visible only from her wake and were invisible from the direction towards which she was moving. This was not fault. There is no law of navigation requiring side-lights to be carried on barges under tow, and the side-lights of this barge, on the night under consideration, were, to all vessels ahead of her, as no lights at all. .As to white lights, the navigator of the barge bad no right to improviso a set of lights to serve the purposes of that particular occasion. No signal-lights are of value, and I might add, of legality, in navigation, except the conventional lights known and understood of all mariners, prescribed by law and the rules of the road. The barge had a right to move stern foremost, especially under the necessities which then required it; and one thing only was legitimate for her to do, in moving in that manner, which was to display one white light in a — 422 — manner not to be mistaken for any regulation light, and so placed as to warn all comers that it marked an object on the water. A plain white light, whether on land or on water, whether on a street or a country road, in an anchorage, or in a channel of navigation, means always, “Take care, for there is something here you must not run against!” Its purpose and universal effect is to put every comer on inquiry. That was the meaning of the single white light on the barge. It was visible to the ■Manhasset; and if she had had eyes on the outlook, vigilant eyes searching the harbor in the calm moments of the beginning of her voyage; experienced, expert eyes to peer into the darkness, and wrest from it its inconspicuous as well as its conspicuous objects, — that single white light would have been seen and understood; and the lookout would have been cautioned by it, and put upon inquiry, and would have discovered that it was approaching him; and Capt. Smith would have been prevented ■from mistaking it for the stern-light of a familiar tug going off into the railroad slip at Berkeley. It was not fault in the barge to have displayed this light. Nor was it fault in her to have had no other visible lights upon her. The laws of navigation, by an omission that ought to be supplied, fails to require other lights on barges under tow; and if others had been displayed, they would have been anomalous, unintelligible to navigators, misleading, and probably illegal. Much stress of objection is laid upon the fact that Capt. Cason knew the night schedule of the Manhasset, and that she would be on her passage to Portsmouth before he could get away from her route. I attach no importance, in this connection, to the fact, arithmetically shown, that he left the wharf of the coal pier four minutes or more before the Man-hasset embarked from Norfolk. Vessels having occasion to move in this harbor are under no obligation of either morals or law to delay their departures until a ferry-boat shall have made a trip. The harbor is free to all, and the laws of navigation are as democratic as cosmopolitan. They recognize no privileged characters, and stand upon the catholic principle of equal rights and common duties. The barge and tug of the respondents here had the absolute choice of the time of setting out on their trip to Town point, and the unqualified right to choose it at their own will. If the vessels having the right to navigate this harbor were bound to stay five minutes for the ferry-boat to cross it in one direction, and five minutes also to cross in the other during every 20 minutes of the day, they would have but half the time to move in; and if another boat were added to the ferry service, the upper part of Norfolk harbor would be closed to general navigation. This pretension thus resolves itself into an absurdity; and cannot bo countenanced. But it is claimed that, though the right to move at will might have belonged to the tug, yet prudence should have counseled -delay for the passage of the ferry-boat in view of the danger of encountering her; and that venturing out at that particular time was fault in the tug and barge. If my duty calls me into a public street, where a strong man claims special occupancy, discretion of .cowardice might dissuade me from venturing forth; but if, exercising my right, I do go into the street, and the strong man assaults — 423 — me and gets hurt, surely the fact of my being on that street is not to be deemed the fault of the occasion. Surely the prudential argument is untenable. Besides, why should the ferry-boat alone be given the wide berth? The only possible answer is, that she alone of the vessels of the harbor is likely to run into vessels crossing her pathway, and is the most dangerous one to encounter. Such a pretension is not flattering to the reputation or the character of a ferry-boat, and may be dismissed for that reason alone. It is urged that the tug and barge were in fault in having disregarded rule 19 of navigation. That rule declares that “if two vessels under steam are crossing so as to involve risk of collision, the vessel which has the oilier on her own starboard side shall keep out of the way of the other.” The rule applies to vessels that are on courses which cross each other. The tug left the Berkeley coal pier about four minutes before the Manhasset left Norfolk. She had less than 283 yards to go before crossing the usual route pursued by the Manhasset in coming into her Portsmouth slip. The ferry slip was 288 yards from the coal pier. The tug and barge, as I have already estimated, did not approach within 100 yards of the slip. She had, therefore, but 133 yards to move from the coal pier before crossing the route of the ferry-boat. At the rate of two miles an hour, she made these 138 yards in two minutes live seconds after getting under way from the coal pier, and allowing one minute and a half for getting under way, then’ the tug and barge had crossed the route of the ferry-boat in three minutes and thirty-five seconds after leaving the coal pier, and fully one minute before the Manhasset had loft her Norfolk slip. The case is therefore not one of crossing courses, and rule 19 lias no application. The tug and Manhasset, after the latter left Norfolk, were pursuing courses that did not cross, and that involved no danger of collision, if each vessel bold its course, and neither adopted any eccentric movement. They were on courses that naturally required each vessel to leave the other on its own starboard; in other words, to pass to the left. And accordingly, as soon as Capt. Cason saw both lights of the Manhasset, he blew two whistles, and half a minuto afterwards blew two more, admonishing the Manhasset that he proposed to pass to the left. He received no response from the Manhasset, until the two vessels were within 20 yards of each other, approaching at the rate of 11 to 14 miles an hour; that is to say, were within 3 to 5 seconds of collision. It is also urged that Capt. Cason did not obey the requirements of rule 3 of pilot regulations, which provides that “if, when steamers are approaching each other, the pilot of either vessel fails to understand the course or intention of the other, whether from signals being given or answered erroneously, or from other causes, the pilot so in doubt shall immediately signify the same by giving several short blasts of the steam-wbistlo; and if the vessels shall have approached within half a mile of each other,” etc. It is complained that Capt. Cason did not give these alarm blasts. The rule applies to vessels which are far enough distant from each other for such blasts to avail when the pilot' who first signaled discovers that the other has misunderstood him, or proposes some other movement. In — 424 — the present instance, Capt. Cason was not informed by tbe whistle of the Manhasset that she rejected his signal to. pass to the left, and substituted a movement to the right, until the two vessels were within 20 yards, or 5 seconds, of each other; and the rule did not admit of compliance. The case came within navigation rule 24, which admits a departure from all rules in moments of immediate danger. Lex non cogit ad impossibilia. Not only with reference to pilot rule 3, quoted above, but to navigation rule 19, previously quoted, it is to be considered that the tug and barge were moving against wind and tide, — a mammoth barge, heavily loaded, in tow of a tug, in sore stress of water and weather; while the ferry-boat was moving .free before both wind and tide, in perfect command of helm, side-wheels, and course. When vessels are in such relative conditions, a court of admiralty will not be exacting in regard to mere technical shortcomings on the part of a vessel moving with heavy incumbrances, even though they were apparent; as they are not in this case. I do not discover fault in the management of the tug and barge after they had crossed the usual route of the ferry off her Portsmouth slip, and had got under way for Town point. It remains fór me only to notice, in closing this discussion, the contention of proctors for the Manhasset, that the absence of a lookout on their boat was immaterial in this case, because the collision was not due to such absence; inasmuch as he could not have seen the lights or heard the whistles of the tug, though he had been in place. In answer 1 have to say that there were at least three persons on the Manhasset, one of whom both saw the light on the barge and heard the four signal whistles, and all three of whom heard the whistles. The witness who saw the light seems to me to have established his claim to credit with exceptional strength. Uíider a severe cross-examination in an uncharitable direction, he told truths extremely disagreeable to himself in a very manly manner; and we have a right to conclude that if a witness will adhere to truth under such an ordeal in matters of deep personal interest to himself, he may be believed implicitly, when testifying to facts which he has no interest in concealing. The proof is positive that whistles were blown, and the white light shown; and the necessary inference is that if the Manhasset had had a vigilant lookout properly stationed, he would have heard and sedn, and the collision thereby avoided. I therefore, on the whole case, find that the tug and barge were without fault, and that the Manhasset was solely in fault, in not having had a lookout properly stationed, who would have so informed Capt. Smith of the barge’s light and the tug’s whistles, that he would not have made the mistake of crossing the tug’s bow at the critical moment of the occasion. I will decree in accordance with this finding. It will have been observed that I do not object in what has been said to the speed at which the Manhasset was running. It is doubtless true that 12 miles an hour is too rapid a speed for a steamer in a crowded harbor; but I do not think that 9 miles is necessarily too great. The excess of speed on this occasion was due wholly to the wind and tide; and I do not think, when the usual speed of a vessel is thus accelerated, — 425 — that the fact calls for animadversion from an admiralty court. That speed, thus produced, is not itself criticised in the present discussion, except so far as it aggravates the negligence of the want of a lookout. No steam vessel ought to move in any navigated water fast enough even to give her steerage-way, without a lookout, who is its eyes and ears. It is the absence of a lookout that -was the presumptive cause of this collision, and I have treated the rapid speed of the ferry-boat only as an aggravation of that cardinal fault.