Macham v. City of New York

Wallace, J. By the decree of the district court both vessels were found in fault for the collision which is the subject of this suit, and an apportionment of the loss was decreed. Both the libelants and the claimants have appealed. Although the claimants insist that there was no fault on the part of the steamer, and that the collision was wholly the result of the fault of the bark in making a change of course at a time when — 607 — otherwise the steamer would have safely avoided her, the faults on the part, of the steamer are so clearly established by the evidence as to devolve upon the claimants the burden of showing that the bark was guilty of contributory fault. The testimony of all the more important witnesses in the district court for both vessels was taken by deposition: the mate of the steamer being the only person who saw all that took place, who was examined in the presence of the district judge. Some additional testimony has been taken by the parties in this court; but in the view of the facts which has been reached, it lias not been (loomed of sufficient importance to require special consideration. The undisjmted facts in the caseare that the collision took place in a log, June 28, 1879, at about 11 o’clock at night, at a point about 6i miles off the coast of New Jersey, 121 miles from Barnegat light-house and 9! miles from Tucker’s Beach light-house. The steamer struck the hark on the latter’s port side, just forward of the mizzen rigging, penetrating into her side about five feet, and sinking her almost instantly. The Helen was an iron vessel of 282 tons register, 122 feet long, and was bound on a voyage from Havana to New York city, laden with a cargo of sugar. She was commanded by Capí. Barclay, and her crew consisted of first and second mate, four able seamen, and two boys. The captain and three of the crew were drowned when the vessel sunk. The captain went below about 8 o’clock in the evening, after giving directions about the course to be kept by the bark, and left her navigation in command of the mate. The seaman who was at the wheel at this time was one of those who were drowned. He remained at the wheel until about 10 o’clock, when one of the seamen then on the lookout was called to take his place, and he was sent forward to the lookout. From this time until the collision took place, the mate was on deck, one seaman was at the wheel, and two seamen wore on the lookout forward, alternately blowing the fog-horn. One of the seamen who was below in the forecastle, and had been kept awake by the noise of the fog-horn, got on deck as,the vessels struck, and was the only one of those below who was saved. The City of New York was a wooden steam-ship, 242 feet long and 1,715 tons register. She was hound on a voyage from New York city to Havana. Her full steam speed was about 12 knots an hour, and her propeller was left-handed. Her navigation at the time was in charge of her second mate, her quartermaster was at the wheel, her engine was in charge of a competent engineer, and she had a. lookout stationed on the forward dock. Her course, up to the time she heard the first signals of the bark, from about 10 o’clock, was about S. by W. a W. The testimony indicates that both vessels observed all the regulations in regard to lights and fog-signals, and that the lookout on each was properly stationed, and reasonably vigilant. The testimony also shows that about 10 o’clock, or shortly after, a fog of such density-set in that vessels could not discover one another at a distance of more than an eighth of a mile, and at intervals could not do so at a considerably shorter distance. The quartermaster of the steamer testified, in answer to the question how tar he could see in the fog, that he could see the length of the. steamer. The first officer of the steamer, who came on — 608 — deck while the vessels were in contact, testified that he could not see the length of the bark; and the captain of the steamer testifies that after the collision he could not see the boats sent out to assist the crew of the bark from the time they left the side of the steamer until they got back. It is not open to fair doubt that after the night became foggy the steamer maintained substantially her full rate of speed, going as she was against the wind, and without sails, until her engines were reversed immediately before striking the bark. The testimony denotes that the wind was blowing from the south-west, or between that point and south-southwest, and that the steamer kept on at a speed of 11 knots an hour. Neither is it open to fair doubt that, at the speed maintained by her at the time, her headway could not be stopped, by reversing her engines, within a distance of an eighth of a mile. When those in charge of the steamer first heard the fog-horn of the bark, they assumed, from the apparent direction of the sound, that her bearing was about one point off the steamer’s starboard bow. Immediately upon hearing the fog-horn the mate ordered the wheel of the steamer put to starboard and hard a-starboard. The order was promptly executed. When the bark became visible to them they discovered that her course was eastward across the steamer’s bow, and then saw her changing her direction and luffing to the starboard of her previous course. Thereupon the mate immediately ordered the steamer’s engines reversed, and her wheel ported. This order was promptly executed, but the steamer’s headway could not be stopped in time to avoid a collision. It is entirely clear that the steamer disregarded both of the injunctions of the twenty-first sailing rule. She did not slacken her speed when approaching another vessel, so as to involve risk of collision; and she did not go at a moderate speed in a fog. That she was approaching another vessel so as to involve risk of collision from the time those in charge heard the first fog-signal of the bark is sufficiently manifest by their conduct in putting her wheel to starboard and hard a-starboard instantaneously upon hearing the fog-horn; and it is conceded by all her witnesses that she kept on at her full previous speed .until the risk of collision became imminent, if not inevitable. That she was not going at a moderate speed in a fog is conclusively established by the fact that she was maintaining such speed that she could not effectually check herself, by reversing her engines, so as to avoid collision within the distance at which in the condition of the fog another vessel could be seen. In stating that the fog was such that vessels could -not discover one another more than an eighth of a mile distant, and that the steamer was not capable, when going at substantially full speed, of stopping her headway through the water within a distance of an eighth of a mile, the most liberal opinion in favor of the steamer has been expressed which can possibly be indulged upon the evidence. As is stated by Capt. Dear-born, one of the expert witnesses, when vessels can be seen in a fog at night an eighth of a mile there is not much of a fog. The committee appointed by the British association to investigate the subject state in their report that “it appears, both from the experiments made by. the committee and from other evidence, that the .distance required by a screw609 steamer to bring herself to rest from full speed by the reversal of her .screw is independent, or nearly so, of the power of her engines, but depends upon the size and build of the ship, and generally lies between four and six times the ship’s length.” The rule by which to determino whether a given rate of speed is moderate or excessive, in view of the particular circumstances oí the occasion, is that such speed only is moderate as will permit the steamer seasonably and effectually to avoid the collision by slackening speed, or by stopping and reversing, within the distance at which an approaching vessel can be seen. Besides these infractions of the positive rules of navigation the steamer was guilty of fault by her movement to port under a hard a-starboard wheel, with unabated speed, executed when she did not know the location or course of the bark. She could not reliably locate the bearing of the bark by a single signal of the bark’s fog-horn. So delusive is the apparent direction of sounds amid banks of fog in locating the true source that successive observations are commonly resorted to for greater certainty, and even then such axe the aberrations that mistake is not infrequent. She could only conjecture the course of the bark, and c<¿uld not know whether the bark was approaching, or was proceeding in the same direction with herself, or whether she was running free or boating to windward on the starboard tack. Under such cirumstances she liad no right to act upon conjecture; her duty was to reduce her speed to the lowest rate compatible with her efficient control, and proceed circumspectly until she could locate the bark, and ascertain her course, or until further signals indicated that the bark was beyond the range of risk. The Northern Indiana, 3 Blatchf. 92; The Hammunda, 4 Ben. 515, affirmed 11 Blatchf. 413; The Perth, 3 Hagg. Adm. 411; The James Watt, 2 W. Rob. 270. When such faults on the part of a steam-ship are shown, her owners are prima facie responsible for the collision, and must exonerate themselves by satisfactory proof that the sailing vessel was also guilty of misconduct which produced or contributed to the collision. Waring v. Clarke, 5 How. 465; The Oregon, 18 How. 570. The fault imputed to the bark by the claimants is the only one which could plausibly be assigned under the circumstances of the case,—that she changed her course after she became visible to those who were in charge of the steamer. Inasmuch as all the witnesses agree that this took place when the vessels were in plain sight of each other, the case resolves itself into the inquiry how far the vessels were apart when this change was made. The witnesses for the bark, while they differ in the details given, agree that the fog-whistle of the steamer, when first heard by them, seemed to indicate by the direction of the sound that the steamer’s bearing was abeam on the bark’s port bow; that very shortly after hearing her whistle they saw the steamer’s mast-head light, and then her green light, so near as to render a collision apparently inevitable; and that then the mate of the bark told the man at the wheel to port the bark’s wheel, and shouted to those who were below to save themselves. The testimony of the wheelsman, the lookout, and the engineer of the steamer so strongly confirms the of the witnesses for the — 610 — to the effect that the bark’s change of course was not made until the vessels were so close together that a collision was unavoidable, that it does not seem necessary to devote any time to the attempt to ascertain what the course of the bark was. previously to the time this change was made. All the witnesses for the steamer agree that the bark’s change of course took place under their observation, axxd that the steamer sounded an alarm of successive blasts of her steam-whistle, axxd l'eversed her engines. The .only successive blasts of the steamer’s whistle which were given while the vessels were approaching each other were given at the same time when the order to reverse was given by her mate. The mate testifies that when he saw the bark opening out her masts so that he could see the sails between the masts, he ordered the wheelsman to port the helm, blew a general alarm at the steam-whistle, and rang the engine bells to slow, stop, and reverse, and that he was xxot more than four seconds in blowing the alarm, and four more in completing the signal to reverse. The engineer testifies that the sound of the gong had not stopped when his engine was reversed; that he stood where he could lay his hand on the reversing gear; and that1 not more than from 15 to 20 seconds elapsed after hearing the first of the four bells of the order to slow, stop, and back before he felt the jar of the collision. The captain of the steamer was in the room abaft of the pilot-house, was awakened by the alaruxwhistles, and stepped instantly into the pilot-house; apd he testifies that when he got there the vessels were then close together, or, giving his estimate, were about 40 feet apart. The violence of the blow given by the steamer to the bark shows that the steamer was under rapid headway when she struck the bai'k. According to, the testimony of the steamer’s lookout, the bark did not chaxxge her course until after the alarm-blasts of the steamer’s whistle were sounded, and the steamer’s wheelsman corroborates the testimony of the lookout in this respect. The mate of the steamer is the only witxxess for the claimants who states that the bark changed her course before the alarm was sounded. The helmsman of the hark testifies that he had not got her wheel fairly over in executing the order to port the helm, whexx the steamer struck the bark. It is insisted for the claimant that the hark changed hex course four or five points to the starboard. Doubtless, if this were true, such a change could not have been made when the vessels were within 200 or 300 feet of each other. If it could be demonstrated that at the time of the collision the bark was headed about E., and that her course previous to the change was N. E., the argumeixt for the steamer would he convincing; hut this cannot he demonstrated unless the testimony of the helmsman of’ the steamer, who gives the course on which the steamer -was headed when the bark’s change of course took place, and also when the collision took place, is accepted as correct. It is highly improbable that, in the excitement and confusion of the moment, the helmsman of the steamer looked at his compass so carefully as to accurately xxote the steamer’s course when he was ordered to put his wheel hard a-port, and again when the collision took place. Equally improbable is his testimony that, while the steamer was under a hard a-starboard helm, her course was only — 611 — changed about three-quarters of a point, although she was running at full speed for a minute under that helm, and that, while she was under her helm hard a-port, at the time she was reversing her engines, her course was changed to a point and three-quarters to starboard. She could not have been a half minute under the helm hard a-port. The general course of the bark after 8 o’clock in the evening may be assumed to have been about N. E., or N. E. } N. This was the conclusion reached by the district judge, upon considerations which are very convincingly stated in his opinion. It may he conceded that her mate, who is the only witness who attempts to give her course by the compass, is not entitled to any credit. The testimony of the diver of the Marine Wrecking Company, who visited the wreck a few days after the collision, shows that she was lying upon the bottom of the ocean headed about N. N. E., 'on a lino parallel with the shore. This fact alone might not be enough to authorize the conclusion that she was headed N. ÍT. E. at the time of the collision; hut it is entitled to consideration as measurably supporting that theory, and is more persuasive in fixing her heading approximately than are the conjectural opinions of the witnesses, formed in the excitement and confusion of the moment, who think she was headed abo at E. If she was headed about N. N. E. when she was struck by the steamer, she did not change her course more than a point and a half under her port helm, and such a change would be consistent with the testimony respecting the proximity to the vessels when it was made which has been adverted to. It is not unreasonable to infer that the steamer, while running a minute under her hard a-starboard helm, thus covering a distance of four times her length, changed her course to the eastward three or four points, and that in the short distance during which she was under her hard a-port helm with her engines reversed she could not have been influenced materially to starboard. Bee White, Nav. Arch. 080-637. Upon this assumption, if the barb’s course was changed one or two points, the steamer would have struck the bark at the angle shown iii the diagrams of the libelant’s witness 1 iagerty, and the claimant’s witness Brown. It may be that the mate, of the- steamer is correct in the statement that the bark changed her course before the sounding of the steamer’s alarm-whistles, and that the helmsman and lookout of the steamer are mistaken in supposing the change to have been made afterwards. But in view of the testimony of the steamer’s witnesses as to what took place after the bark became visible to them, it can hardly be doubted that a half minute must have elapsed after that time before the change of course was made. As the bark was not visible more than an eighth of a mile away, and as the vessels were approaching each other not far from the rate'of 1,400 feet a minute, it is plain that they must have been very near together when the change was made; and even if a less time than a half minute elapsed, they were probably within 200 or 300 feet of each other. For those reasons the conclusion is reached that the bark’s change of course was not a fault, but, if injudicious, was made when the vessels were very near to each other, and was caused by an error of judgment on the part of the mate, committed in the excitement and alarm of the — 612 — moment, when, owing to the misconduct of the steamer, the vessels were in a situation which did not permit him to deliberate. The caséis therefore one for the application of the rule which is well stated in The Carroll, 8 Wall. 302: ■ “Fault on the part of the sailing vessel at the moment preceding collision does not absolve a steamer which has suffered herself and a sailing vessel to get in such dangerous proximity as to cause inevitable alarm and confusion, and collision as a consequence. The steamer, as having committed a far greater fault in allowing such proximity to be brought about, is chargeable with all the damages resulting from the collision.”