The Delaware,
161 U.S. 459 (1896)

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U.S. Supreme Court

The Delaware, 161 U.S. 459 (1896)

The Delaware

Nos. 555, 570

Argued January 10, 1896

Decided March 2, 1896

161 U.S. 459


Gedney Channel, being the main entrance to the harbor of New York, is as much a part of the inland waters of the United States within the meaning of the act of March 3, 1885, c. 354, 23 Stat. 438, as the harbor within the entrance.

The real point aimed at by Congress in that act was to allow the original code (Rev. Stat. § 4233) to remain in force so far as it applies to pilotage waters, or waters within which it is necessary, for safe navigation, to have a local pilot.

The Delaware, returning to New York in ballast only, entered Gedney Channel upon a true course of W. by S. About the same time, the Talisman, a tug towing a pilot boat, entered it from the northwest, upon a course about S.SE., and not far from a right angle to the course of the Delaware. Under these circumstances, as they were approaching each other on crossing courses, the Delaware was bound to keep out of the way, and the Talisman to keep her course. The Delaware made no effort to avoid the Talisman, but kept on its course until about a minute before collision, when its engines were stopped too late. The Talisman was struck and sunk, and became a total loss. Held that the Delaware was grossly in fault.

The Supervising Inspector's rules, so far as they require whistles to be used, ought to be construed in harmony with the International Code, and, as applied to vessels upon crossing courses, they mean that when a single blast is given by the preferred steamer, she intends to comply with her legal obligation to keep her course, and throw upon the other steamer the duty of avoiding her.

It is the primary duty of a steamer having the right of way when approaching another steamer to keep her course; all authorities agree that this rule applies so long as there is nothing to indicate that the approaching steamer will not discharge her own obligation to keep out of the way, and it is settled law in the United States that the preferred steamer will not be held in fault for maintaining her course and speed so long as it is possible for the other to avoid her by porting, at least in the absence of some distinct indication that she is about to fail in her duty. The facts stated and referred to in the opinion leave too much doubt about the fault of the Talisman to justify the court in apportioning the damages.

The Delaware is not exempted from liability by the provisions of the Act

Page 161 U. S. 460

of February 13, 1893, c. 105, 27 Stat. 445, entitled "An act relating to navigation of vessels, bills of lading, and to certain obligations, duties and rights in connection with the carriage of property."

This was a suit in admiralty, instituted by Charles H. Winnett, the owner and master, and the crew of the tug Talisman against the steamship Delaware, to recover damages for a collision between these vessels, which occurred on September 16, 1893, about ten o'clock in the morning, in Gedney's Channel, off Sandy Hook at the outer entrance of New York harbor, and within three miles from land.

In the district court, the Delaware was held solely in fault, 61 F. 525, and a decree was entered against her for $21,318.70. Her owner thereupon appealed to the circuit court of appeals, which affirmed the decree of the district court as to the fault of the steamship, and certified to this Court certain questions as to whether she was absolved from liability by the provisions of the Act of February 13, 1893, c. 105, 27 Stat. 445, entitled "An act relating to navigation of vessels, bills of lading and to certain obligations, duties and rights in connection with the carriage of property." This certificate was docketed as a separate cause. The owner of the Delaware thereupon applied for and was granted a writ of certiorari to bring up the whole record upon the ground that the circuit court of appeals erred in failing to find contributory negligence on the part of the Talisman.

The first three sections, containing the material provisions of the act in question, commonly known as the "Harter Act," are printed in the margin. *

Page 161 U. S. 461

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