Consolidation Coastwise Co. v. Lee Towing Line, Inc.

HOUGH, Circuit Judge (after stating the facts as above). [1] This collision was singularly inexcusable; in investigating accidents of this class, one piece of gross negligence is usually discovered. In commenting on the evidence, an experienced trial judge said that he found the captain of the .Herman Lee “untrustworthy, not only in his report to the local inspectors, which is extremely uncandid, but also in his conflicting stories of the orders given to his tug.” We entirely agree with this estimate of the witness, and find that the main responsibility for [920] collision rests on him. We further agree that the Maren Lee, the Cumberland, and the latter’s tow were wholly without fault. The Cumberland was excused by the exigencies of navigation in going down the river near the Brooklyn shore; there was plenty of room for the schooner and her tugs to pass starboard to starboard, and if the schooner had followed straight after the Maren Lee (which vessel was laying a proper course) there would have been no collision. It is quite probable that the root of the difficulty was that the tug master on the forecastle head faced aft and attempted to give his steering orders by waving his hand in the direction that he wished the schooner’s head to turn. It is the historic rule of the sea that orders are always given to the helm, and it may be true that, when the tu^ captain waved his hand to port, the signal was interpreted as meaning to put the helm to port. But, however this may be, no excuse can be suggested for ordering the tug on the starboard quarter to go astern as hard as she could, when a sheer toward Brooklyn was developing, no matter what the cause of the sheer. This was the commission of a marine tort on the part of the helper tug Herman Lee, and is sufficient to hold her in rem. [2] So far as the liability of the schooner for injury to a third party —i. e., the Cumberland’s barge — is concerned, it makes no difference whether the sheer toward Brooklyn which brought about collision was caused or contributed to by a wrong order from the tug master or a wrong understanding of that order, if that tug master was a pilot. He was, of course, a pilot in the sense that he was a licensed man; but the question is whether, when performing so humble a duty as merely trying to keep the schooner straight behind the Maren Lee, he was acting as a pilot. “The name of pilot or steersman * * * ‘is applied either to a particular officer serving on board a ship during the course of a voyage, and having the charge of' the helm, and of the ship’s route, or to a person taken on board at a particular place for the purpose of conducting a ship through a river, road, or channel, or from or into a port.’ ” The Wave v. Hyer, Fed. Cas. No. 17,300, 2 Paine, 131. “The term pilot is equally applicable to two classes of persons, to those whose employment is to guide vessels in and out of ports, and to those who are entrusted with the management of the helm and the direction of the vessel on her voyage.” Pacific Mail, etc., v. Joliffe, 2 Wall. 461, 17 I*. Ed. 805. Within these authoritative definititions it is plain that in the legal sense the master of the Herman Lee was acting as pilot of the Cressy when directing, or attempting to direct, her course, even though that course was but the wake of a towing tug. [3] He was not a compulsory pilot, but one voluntarily accepted as the result of- contract. Wherefore, if he gave a wrong order, which caused or contributed to collision, the Cressy is liable as the offending res (Homer Ramsdell, etc., Co. v. La Compagnie Générale, 182 U. S. 406, 21 Sup. Ct. 831, 45 L. Ed. 1155, and cases cited); whereas, if he gave a proper order (which we do not believe he did), and that order was misunderstood by the ship’s officers and/or the man at the wheel, the schooner is also liable, though for another reason. [4] It is evident from the apostles that the liability of the Cressy [921] i,; important, because the Herman J,ee is not sufficiently valuable to cover all the damage. As we have found that a wrong order given by the master of the Herman Lee was the proximate cáuse of collision, it was correct (as was done in the court below) to order that the value of the Herman Lee should be first exhausted before recourse was had to the Cressy. Decree affirmed, with the costs of this court to the Consolidation Coastwise Company only.