A steam vessel, the N., backed out from her slip in Jersey City,
toward the middle of the Hudson River between Jersey City and New
York, preparatory to turning down to go to sea. Another steam
vessel, the S., was going down, above the N., and nearer the New
York shore, on her way to sea. It was customary and necessary for
the N. to back out of her
slip to about the middle of the river. The S. knew of such
practice of
the N. When the N. had reached the middle of the river she
stopped her engines and the S. assumed she would go ahead, and
herself proceeded without any material change of course, under slow
speed, until she got near enough to observe that the N. was
continuing to make sternway at considerable speed, and might bring
herself in the path of the S. Then the S. stopped her engines,
being about 1,000 feet away from the N., and one minute after, upon
observing that the N. still continued to make sternway at a speed
which indicated danger of collision, put her engines at full speed
astern and ported. The N., after stopping her engines, waited two
minutes before putting her engines at half speed ahead and two
minutes more before putting her engines at full speed ahead. The
vessels collided, the N. and the S. both of them making sternway at
the time.
Held that the N. was in fault and the S. not in
fault.
The S. was justified in assuming that the N. would pursue her
customary course, and took timely measures to avert a
collision.
The statutory steering and sailing rules had little application
in the case, and it was rather one of "special circumstances."
In admiralty. The case is stated in the opinion.
Page 149 U. S. 145
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is a suit in admiralty,
in rem, brought in
February, 1886, in the District Court of the United States for the
Southern District of New York by Harlich Nichels, master of the
Belgian steamship
Noordland, of Antwerp, against the
British steamship
Servia, to recover damages resulting
from a collision which took place January 30, 1886, between those
two vessels, in the harbor of New York, in the Hudson River,
between New York and Jersey City. Both were damaged, and a
cross-libel was filed by the
Servia against the
Noordland. The
Noordland was backing out, stern
foremost, from her berth in a slip in Jersey City, and the
Servia had backed out from her slip in the City of New
York, and was heading down the Hudson River above the
Noordland. Both vessels were going to sea, and had lain in
their slips, bow in. The libel of the master of the
Noordland charges fault in the
Servia in that (1)
she was not stopped when the
Noordland could be easily
seen from her; (2) she kept on until she was brought into dangerous
proximity to the
Noordland; (3) instead of then keeping
out of the way of the
Noordland, she threw her head to
starboard, and thus struck the
Noordland on the starboard
quarter.
The answer of the
Servia charges negligence and fault
on the part of the
Noordland in that (1) she did not have
competent and vigilant lookouts, properly stationed, and faithfully
attending to their duties; (2) her officers and crew were
inattentive; (3) she continued under sternway, thus bringing her
down to and upon the
Servia, which was as close in to the
New York shore as it was prudent for her to go; (4) she did not
stop her sternway, or start her engines ahead, until immediately
before the collision, when it was too late to avoid it; (2) after
she had stopped her engines, she wrongfully and improperly started
them astern again, thus crowding down to and upon the
Servia's rightful course, notwithstanding she had plenty
of room between her and New Jersey to have gone ahead, which she
was bound to have done, and so have avoided the
Servia.
Page 149 U. S. 146
The case was heard by Judge Brown in the district court, and a
decree was entered by that court dismissing the libel of the
Noordland, with costs. The opinion of Judge Brown is
reported in 30 F. 502. He held that the
Servia did all
that the law required of her, and was without fault, and that the
collision occurred through the unjustifiable delay of the
Noordland in starting her engines ahead. The master of the
Noordland appealed to the circuit court, and that court,
held by Judge Wallace, in March, 1889, affirmed the decree of the
district court, and dismissed the libel of the
Noordland,
with costs of both courts. The libelant has appealed to this
Court.
The circuit court made the following findings of fact:
"1. At about 2:45 P.M., January 30, 1886, a collision took place
between the steamships
Servia and
Noordland in
the Hudson River at a point 800 to 1,000 feet off the New York
side, about opposite Cortlandt Street. The river at that place is
about 4,400 feet wide between the lines of the piers."
"2. Both steamships had just left their respective slips,
intending to put to sea, the slip of the
Servia being
above Houston Street, New York City, and the slip of the
Noordland being at Jersey City, about opposite the place
of collision. It was customary and necessary for the steamers to
back out of their respective slips to about the middle of the
river, for the purpose of straightening on the courses down the
river, and it was frequently the practice of the
Noordland
to back still nearer to the New York side. Both vessels knew the
practice customary with the other when starting for sea. The
Servia started from her slip at about 2:15, and the
Noordland from hers about 2:30."
"3. The
Servia had got turned about and straightened on
her course down the river, and was proceeding within a distance of
800 or 1,000 feet from the New York shore, and nearer to the New
York shore than was customary, and as near as she prudently could,
having reference to her own size and the proximity of other
vessels, while the
Noordland was backing over toward the
New York shore, assisted by a tug at her port quarter, preparatory
to straightening on her course. "
Page 149 U. S. 147
"4. When the
Noordland reached about mid-river, she
stopped her engines and signaled the
Servia that she
intended to starboard her helm and go ahead. The
Servia
did not hear the signal, but observed the movements of the
Noordland and assumed that she would go ahead in time to
leave the
Servia an unobstructed course. The
Servia proceeded without any material change of course,
headed about south by west one-half west, under slow speed, until
she got near enough to observe that the
Noordland was
continuing to make sternway at considerable speed, and might bring
herself in the path of the
Servia, whereupon the
Servia stopped her engines, being then about 1,000 feet
away from the
Noordland, and one minute after, upon
observing that the
Noordland still continued to make
sternway at a speed which indicated danger of collision, put her
engines at full speed astern, and ported her helm."
"5. When the
Noordland reached mid-river and stopped
her engines, she had been backing at a speed of five or six knots
an hour and, after stopping her engines, and giving the signal to
indicate that she would go ahead, she did not go ahead, but waited
two minutes longer before putting her engines at half speed ahead,
and two minutes more, and when it was too late to avoid collision,
before putting her engines at full speed ahead, and in the meantime
she had continued to encroach upon the
Servia's course,
and was making sternway at the time the vessels collided."
"6. When the vessels came together, the bow of the
Servia canted a little to starboard, while her engines
were reversed, and her starboard bow came into contact with the
starboard quarter of the
Noordland at the extreme stern.
Both vessels were injured, and the
Servia sustained
damages in the sum found by the commissioner of the district
court."
"7. Both steamships were properly officered, manned, and
equipped. Those in charge of the
Servia exercised proper
vigilance in observing the
Noordland, but those in charge
of the
Noordland were inattentive in observing the
Servia and in observing the speed at which their own
vessel was nearing the New York shore after she had reached
mid-river, and were
Page 149 U. S. 148
negligent in permitting her to back so near to the New York
side."
"8. There were no vessels or obstructions in the river at the
time to complicate the movements of the
Noordland, and it
was entirely unnecessary for her to back much, if any, beyond the
middle of the river in order to straighten upon her course; but she
nevertheless did back at a speed gradually decreasing from five to
six knots and hour until she came within 1,000 feet, or nearer, of
the New York side, and struck the
Servia."
There is a bill of exceptions which, after setting forth the
findings of fact by the court, states as follows:
"Whereupon the libelant offered to the said court the following
additional findings of fact:"
" First. The course of the
Servia was ahead downstream
on the New York side from Houston Street, and of the
Noordland, astern across stream from Jersey City, about
opposite the place of collision."
"Which the said court refused, except as already found, and the
libelant duly excepted to such refusal."
" Second. The vessels were on crossing courses, the
Servia having the
Noordland on her starboard
hand."
"Which said court refused, except as already found, and the
libelant duly excepted to such refusal."
" Third. Just before the collision, but too late to overcome her
headway, or prevent the vessels coming together, the
Servia reversed full speed astern, causing her bow (her
propeller being right-handed, and her helm being aport) to cant
over to starboard, toward the
Noordland."
"Which said court refused to find, and the libelant duly
excepted to such refusal."
" Fourth. The
Servia struck the
Noordland at
the port side of her fantail at the extreme stern, doing
considerable damage."
"Which the said court refused, except as already found, and the
libelant duly excepted to such refusal."
" Fifth. If the
Servia had reversed her engines a
minute sooner, as she might perfectly well have done, there would
have been no collision. "
Page 149 U. S. 149
"Which the said court refused to find, and the libelant duly
excepted to such refusal."
" Sixth. If the
Servia had continued her course without
stopping, she would have gone clear."
"Which said court refused to find, and the libelant duly
excepted to such refusal."
" Seventh. The master of the
Servia proceeded upon the
opinion that his vessel had right of way; that the
Noordland was required to keep out of her way. This led to
the
Servia's coming into dangerous proximity to the
Noordland. Instead of then keeping on, according to this
view of her captain, the
Servia, by reversing and canting
her head toward the
Noordland, brought about the
collision."
"As to the seventh request, the court found that the master of
the
Servia supposed and claimed that his vessel had the
right of way. In other respects, this finding was refused, and the
libelant duly excepted to such refusal."
" Eighth. To the southward and westward of the course of the
Noordland, as she backed toward New York, were flats and
shoals, to avoid which, when she straightened on her course, made
it desirable for her to reach across as far as was safe toward the
New York side of the river."
"Which said court refused to find, and the libelant duly
excepted to such refusal."
" Ninth. The opinion and observation of the master of the
Servia were that it is usual for steamers going to sea
from the Jersey side of the river to back over to from eight
hundred to a thousand feet of the New York piers, just to clear
them. This is usual where vessels are not in the way at the end of
the New York piers, and suitable."
"Which said court refused to find, and the libelant duly
excepted to such refusal."
" Tenth. The
Noordland, as she was going astern, did
not have the same command of her movements as was the case with the
Servia."
"Which the said court did find."
"And thereupon the said court found the following conclusions of
law: "
Page 149 U. S. 150
" 1. Each steamship was bound to conform to her own customary
course and maneuvers under similar circumstances, and take notice
of the customary course and maneuvers, and observe the movements,
of the other, and each had the right to assume that the other would
do so."
"To which conclusion the libelant duly excepted, as being
against the evidence and against the law."
" 2. The
Servia was justified in assuming that she
could safely proceed at moderate speed upon the course she had
taken after she had straightened down the river, without being
obstructed by the
Noordland, and it was not until such
time as she ought to have discovered that the
Noordland
was backing so near her path as to probably impede her movements
that she was under any obligation to apprehend danger, and take
additional measures to avoid collision."
"To which conclusion the libelant duly excepted, as being
against the evidence and against the law."
" 3. The
Servia was not guilty of fault or negligence
contributing to the collision."
"To which conclusion the libelant duly excepted, as being
against the evidence and against the law."
" 4. The
Noordland was in fault for backing nearer to
the New York side than was necessary or was prudent, in view of the
course and movements of the
Servia, for not taking timely
measures to stop her sternway after she had reached mid-river, and
for failing to observe the movements of the
Servia with
due attention."
"To which conclusion the libelant duly excepted, as being
against the evidence and against the law."
" 5. The decree of the district court is right, and should be
affirmed with costs, and it is accordingly so ordered."
"To which conclusion the libelant excepted, as being against the
evidence and against the law."
"And the libelant thereupon offered to and requested the court
to find the following additional conclusions of law:"
" First. The
Noordland had the right of way, and the
Servia was at fault for not keeping out of her way. "
Page 149 U. S. 151
" Second. The
Servia should have stopped before she
came into dangerous proximity to the
Noordland."
" Third. The
Noordland was not compelled to go ahead
before she had run out her sternway, nor was she required to stop
her engine nearer the Jersey side of the river."
" Fourth. The
Servia had no right to require or expect
the
Noordland to run out her sternway at a greater
distance from the ends of the New York piers than she did."
" Fifth. The
Servia, having elected to go on, was at
fault for reversing full speed astern, and putting her helm aport,
when so near the
Noordland that before her headway was
stopped her bow would be carried into that vessel."
" Sixth. The decree of the district court should be reversed and
a decree should be entered holding the
Servia in fault for
the collision, with costs to the appellants of the district and
circuit courts, and a reference to ascertain the damages of the
Noordland."
"And the court declined to find any further conclusions of law
than already found, to which refusal of the court to find the said
six additional conclusions of law, and each of them, the libelant
duly excepted as being against the evidence and against the
law."
It is stated in the bill of exceptions that it contains all the
evidence material to any of the exceptions.
It is alleged by the appellant as error (1) that the circuit
court should have made the eighth and ninth findings of fact
requested on behalf of the
Noordland; (2) that it should
have made so much of the seventh finding of fact requested on
behalf of the
Noordland as found that the master of the
Servia proceeded upon the opinion that his vessel had the
right of way; (3) that the circuit court erroneously found the
first, second, third, and fourth conclusions of law made by it; (4)
that it erroneously refused to find, as requested for the
Noordland, that she had the right of way and that the
Servia was at fault for not keeping out of the way; (5)
that it erroneously refused to find, as requested for the
Noordland, that the
Servia should have stopped
before she came into dangerous proximity to the
Noordland;
(6) that it erroneously refused
Page 149 U. S. 152
to find, as requested for the
Noordland, that she was
not compelled to go ahead before she had run out her sternway, nor
was she required to stop her engines nearer the New Jersey side of
the river; (7) that it erroneously refused to find, as requested
for the
Noordland, that the
Servia had no right
to require or expect the
Noordland to run out her sternway
at a greater distance from the ends of the New York piers than she
did; (8) that it erroneously decided that the
Noordland
was in fault, and (9) that it erroneously decided that the
Servia was free from blame.
It is contended here on behalf of the
Noordland (1)
that the vessels were on crossing courses, and that the
Servia, having the
Noordland on her starboard
side, was required by rule 19 of the steering and sailing rules set
forth in ยง 4233 of the Revised Statutes of the United States, and
by article 16 of the Act of March 3, 1885, c. 354, 23 Stat. 438,
441, to keep out of the way of the
Noordland; (2) that the
collision occurred because the
Servia claimed the right of
way and acted accordingly, and that the circuit court not only
refused to find that the
Noordland was entitled to the
right of way, but approved the action of the master of the
Servia in appropriating the right of way to that vessel;
(3) that if the
Noordland was entitled to the right of
way, it was error for the circuit court to refuse to find that the
Servia should have stopped before she came into dangerous
proximity to the
Noordland; (4) that there were no special
circumstances to deprive the
Noordland of her right of
way, nor was she unreasonable in insisting upon her right; (5) that
the
Servia could not be excused for her failure to keep
out of the way of the
Noordland on the ground that she had
the right to assume that the
Noordland would not obstruct
her course or would yield to the
Servia the right of way
to which the
Noordland was entitled; (6) that the
assumption upon which the
Servia is supposed to have acted
is pure assumption, those in charge of the navigation of the
Servia not having acted upon such an assumption; (7) that
it was error in the circuit court not to find the eighth and ninth
additional findings of fact proposed on behalf of the
Noordland; (8) that the collision
Page 149 U. S. 153
was due solely to the fact that those in charge of the
Servia erroneously supposed that they had the right of
way; (9) that the undisputed facts show that the
Servia
was guilty of inattention; (10) that if the
Noordland was
at fault for allowing an interval to elapse between stopping her
engines and going ahead, then the
Servia was also at fault
for allowing an interval to elapse between stopping her engines and
going astern, and (11) that the decree of the circuit court should
be reversed, and a decree made in favor of the
Noordland
for her damages, with costs.
But we are of opinion that the decree of the circuit court was
correct, and must be affirmed.
The first conclusion of law of the circuit court, that
"each steamship was bound to conform to her own customary course
and maneuvers under similar circumstances and take notice of the
customary course and maneuvers and observe the movements of the
other, and each had the right to assume that the other would do
so,"
was correct. The known usage as to the movements of each vessel
preparatory to getting upon her course to sea was established as a
custom, and each vessel was justified in assuming that the other
would perform her duty in that respect.
Williamson
v. Barrett, 13 How. 101,
54 U. S. 110;
The
Vanderbilt, 6 Wall. 225;
The Free State,
91 U. S. 200;
The John L. Hasbrouck, 93 U. S. 405,
93 U. S. 408;
The Esk and The Niord, L.R. 3 P.C. 436. It was the duty of
each vessel to observe the movements of the other.
The circuit court was correct also in finding as a conclusion of
law that
"the
Servia was justified in assuming that she could
safely proceed at moderate speed upon the course she had taken
after she had straightened down the river, without being obstructed
by the
Noordland, and it was not until such time as she
ought to have discovered that the
Noordland was backing so
near her path as to probably impede her movements that she was
under any obligation to apprehend danger and take additional
measures to avoid collision."
The court had found as facts that the
Servia was
proceeding under slow headway down the river at a distance of from
800 to 1,000 feet from the New York shore, and heading about south
by
Page 149 U. S. 154
west one-half west, thus having from 1,200 to 1,400 feet between
her starboard side and the middle of the river (the river being
about 4,400 feet wide), toward which the
Noordland was
backing. The
Servia was therefore heading well under the
Noordland's stern, the latter having abundance of the
width of the river for her maneuver, and knew the usage of the
Noordland to back to about the middle of the river, and
saw that the engines of the
Noordland were stopped when
she had reached about the middle of the river, indicating that the
Noordland intended to follow her usage. The
Servia therefore had a right to assume that the
Noordland would head down the river and proceed to sea. It
became the duty of the
Servia only to proceed carefully on
her course, keeping watch of the
Noordland. No danger was
apparent. The
Servia's course was well clear of the
Noordland and of the course which the
Servia had
the right to believe the
Noordland would promptly take.
Marsden on Collisions, ed. 1880, 233;
The Ulster, 1
Mar.L.C. 234;
The Scotia, 14
Wall. 170;
The Free State, 91 U. S.
200;
The Rhondda, L.R. 8 App.Cas. 549;
The
Jesmond and The Earl of Elgin, L.R. 4 P.C. 1.
The
Servia stopped her engines when she had got near
enough to see that the
Noordland continued to make
sternway, and when about 1,000 feet away from her, and immediately
afterwards the
Servia put her engines at full speed
astern, and ported her helm. It then appeared to the
Servia that the
Noordland, in violation of the
usage and of her duty, was proposing to maintain her sternway so as
to bring her across the path of the
Servia, and that there
was danger of collision. Then it became the duty of the
Servia to take measures to avert a collision, which she
did, as above stated.
The circuit court held that the
Servia was not guilty
of fault or negligence contributing to the collision. This is a
proper conclusion from the findings of fact that she was properly
officered, manned, and equipped; that those in charge of her
exercised proper vigilance in observing the
Noordland;
Page 149 U. S. 155
that the
Servia was well over toward the New York
shore, leaving ample room for the movements of the
Noordland; that the
Servia was under slow speed;
that she stopped her engines as soon as she saw that the
Noordland was under sternway, although her engines had
been stopped, and that the
Servia put her engines at full
speed astern as soon as she saw that such sternway of the
Noordland was continuing so as to indicate danger of
collision. The
Servia therefore complied with all the
requirements of the law.
The circuit court held also that the
Noordland was in
fault for backing nearer to the New York side of the river than was
necessary or was prudent in view of the course and movements of the
Servia, for not taking timely measures to stop her
sternway after she had reached mid-river, and for failing to
observe the movements of the
Servia with due attention.
This was a proper conclusion of law from the findings of fact that
it was the custom of the
Noordland to back to mid-river in
her maneuver of turning; that there were no vessels or obstructions
in the river at the time to complicate her movements; that it was
entirely unnecessary for her to back much, if any, beyond the
middle of the river in order to straighten upon her course; that
when she reached mid-river, she stopped her engines and signaled
that she intended to starboard her helm and go ahead; that she then
waited two minutes longer before putting her engines at half speed
ahead, and waited two minutes more before putting her engines at
full speed ahead; that her speed astern, prior to the stopping of
her engines, had been five or six knots an hour; that the two
vessels struck when the
Servia was 1,000 feet or less from
the New York shore and was making sternway, and that those in
charge of the
Noordland were inattentive in observing the
Servia and in observing the speed at which the
Noordland was nearing the New York shore after she had
reached mid-river, and were negligent in permitting the
Noordland to back so near to the New York side.
This negligence on the part of the
Noordland in
observing the
Servia and in observing how the
Noordland was encroaching on the course of the
Servia is a sufficient explanation of the collision which
ensued.
The Genesee
Chief, 12 How. 443,
53 U. S. 463;
The
Pennsylvania, 19 Wall. 125,
86 U. S. 136;
The
Page 149 U. S. 156
Sunnyside, 91 U. S. 208,
91 U. S. 214;
The Illinois, 103 U. S. 298,
103 U. S. 299;
The Nevada, 106 U. S. 154,
106 U. S.
159.
The
Noordland was in fault for not starting her engines
ahead at once after stopping in mid-river. There was no necessity
for her to back further across the river. It is found as a fact
that after stopping her engines and signaling that she would go
ahead, she did not go ahead, but waited two minutes longer before
putting her engines at half speed ahead, and two minutes more, and
until after she had continued to encroach upon the
Servia's course, before putting her engines at full speed
ahead. That negligence was assigned by the district court as the
cause of the collision, and the circuit court finds that the
Noordland was in fault for not taking timely measures to
stop her sternway after she had reached mid-river.
The exceptions on the part of the
Noordland to the
refusal of the circuit court to find the proposed conclusions of
law are untenable, because those conclusions of law were based on
the findings of fact proposed on the part of the
Noordland, which the circuit court correctly refused to
adopt. The court substantially found as requested by the first and
second additional findings of fact proposed on the part of the
Noordland. The
Noordland was at no time before
the collision on a definite course, as contemplated by the statute
and rules of navigation, and on the facts found she cannot claim
that she had the right of way as against the
Servia. The
statutory steering and sailing rules before referred to have little
application to a vessel backing out of a slip before taking her
course, but the case is rather one of "special circumstances,"
under rule or article 24, requiring each vessel to watch and be
guided by the movements of the other. A finding that the
Servia had the
Noordland on the starboard side,
and that therefore the
Noordland had the right of way and
the
Servia was in fault for not keeping out of the way
would be immaterial in view of the other facts affirmatively found.
The
Noordland was bound to conform to her usage in the
river. She knew that usage, and the
Servia also knew it.
Only the inexcusable delay of the
Noordland in observing
her own
Page 149 U. S. 157
practice, which she indicated she intended to follow, brought
about the collision.
The
Servia maintained her position close to the New
York shore. She proceeded slowly. She observed the
Noordland closely. She stopped her engines when at a safe
distance to enable the
Noordland to check her own
sternway, and she reversed her engines when the sternway of the
Noordland indicated risk of collision. She was thwarted in
her maneuvers by the faults committed by the
Noordland. It
was not incumbent upon the
Servia to take any other
precautions than she did, and she did nothing to bring on the risk
of collision.
The other exceptions taken on the part of the
Noordland
are either immaterial, or have been sufficiently remarked upon.
Decree affirmed.