Northern Transportation Co. v. Davis

HOUGH, Circuit Judge, (after stating the facts as above). Maersk’s pleading ascribes collision to conditions not supported by evidence, and on the evidence produced on her own behalf the steamer is condemned. By pleading, the Maersk put Wyoming, when first seen, “abaft her beam” and “off her starboard quarter”; thus apparently invoking the overtaking rule. The proof wholly fails to justify, either the assertion or inference. We find that Maersk, heavily laden, arrived at Quarantine about 8 a. m., intending to anchor on Red Hook flats. After passing through the gap in the Narrows net, the steamer had still to be inspected by the customs; and to keep out of the way of a somewhat disabled ship, which was coming through the gap, the local pilot in charge of Maersk starboarded his helm and slowly went ahead. He only turned to port because, as he testified, it is “customary to turn a ship toward the wind.” The Maersk seems to us to have been “killing time,” while waiting for the customs cutter to appear. To the northward of Maersk and southward of Wyoming’s anchorage lay the steamship Mitre, anchored, light, ánd very high out of the water, heading toward Staten Island, and lying (as her pilot says) “east and west.” Maersk’s starboard helm brought her along Mitre’s southerly side, close to the latter vessel, which obscured Maersk’s hull from observers to the northward. Near the Staten Island shore was another anchored vessel, and between that vessel and Mitre there was a passageway or channel about 700 feet wide, down which Wyoming, with her barges straight behind her, laid a course. No one on the tug could see Maersk’s hull until either the latter passed out beyond Mitre, or Wyoming got far enough to the south to see along Mitre’s southerly side; but Maersk’s masts were seen moving over Mitre’s hull. The Maersk had no lookout forward, and the first to see Wyoming were the men on steamer’s bridge. The testimony from the steamer’s bridge is that when Wyoming was first seen she was “about 500 or 600 feet” distant. She would have been seen sooner, had there been a lookout stationed forward, and materially sooner, because the Maersk was proceeding very slowly. It is plain that, if the navigation rules applied to this situation, the vessels were on crossing courses and Wyoming was the privileged vessel. In this situation Maersk blew, two whistles and Wyoming one. There is uncertainty as to how well the whistles were heard, but that is immaterial. The situation was plain, and the fact that Maersk did blow two whistles is evidence that the pilot recognized the burden upon his ship. The engine log of the Maersk shows: [211] ■“9:50 a. m. Slow ahead. 9:52. Half speed. 9:55. Stop. 9:58. Slow, and then half speed. 10:04. Pull speed astern, and once more full speed astern.” Collision happened at 10:05, and the engine log does not pretend to record fractions of a minute. Wyoming, having blown one whistle, kept to the starboard side of the opening between the Mitre and the other anchored vessel, and passed as cióse, to the latter as safety permitted; while Maersk, continuing under her starboard helm, changed her course sufficiently to produce a blow by the bluff of her own bow, instead of a collision at nearly' right angles. These facts put Maersk in fault under any view of the case. The only question is whether Wyoming committed any error. There are but two faults that can be suggested: (1) That the case is one of special circumstances; (2) it was a fault not to take the shortest path out of anchorage ground. As to the first point, the general rule is that the steering and sailing regulations apply; special circumstances are the exception. In this case the Wyoming was laying a course, and, if the Maersk was not, it was her own fault, for there was nothing to prevent her so doing. As to the second point, it is undoubted that all vessels must navigate with extreme care on anchorage ground. The Aller, 73 Fed. 875, 20 C. C. A. 79; The Riehl (D. C.) 241 Fed. 285. This duty was as incumbent on the Maersk as on the Wyoming; but it is not unlawful per se to go upon anchorage ground without the intent of anchoring, or to navigate across such ground. In the present instance Wyoming was obliged to choose (since she started on anchorage ground) between going eastwardly into the Main Ship Channel and going southerly a somewhat longer distance into the same channel. Her evidence is clear that, owing to the crowded condition of the anchorage and much shipping even in the channel, the best course was to go south through the lane to the westward of Mitre above described. It was navigation through very crowded waters at best. We think her choice was well made and her navigation careful. The decrees below are modified, so as to place entire liability upon the Maersk. One bill of costs in this court to the Wyoming.