New York & B. Transp. Co. v. Phil. & S. Nav. Co.,, 63 U.S. 461 (1859)

U.S. Supreme Court

New York & B. Transp. Co. v. Phil. & S. Nav. Co., , 63 U.S. 461 (1859) 9 How. 461

New York and Baltimore Transportation Company v.

Philadelphia and Savannah Steam Navigation Company

63 U.S. (19 How.) 461

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Syllabus

In a collision which took place in the River Delaware, between a steamship and a barge which was in tow of a propeller, the latter was in fault.

The lookout was not properly stationed, being in a place where his view was obstructed, and the propeller violated the rule which requires steamers approaching each other from opposite directions to port their helms, and pass each other on the larboard side.

A propeller with a barge in tow is not within the rule which applies to sailing vessels, and which requires steamships to keep out of their way.

Propellers have nearly the same speed as sidewheel steamers, and quite as much power, and must be subject to the same rules of navigation.

This was a case of collision between the steamship Keystone State and a barge called the A. Groves, Jr., which took place on the River Delaware, whereby the barge was sunk in the river, and her cargo greatly damaged.

The facts of the case are fully stated in the opinion of the Court.

The libel was filed by the New York & Baltimore Transportation Company against the owners of the Keystone State. The district court dismissed the libel, and the circuit court, upon appeal, affirmed the decree. The libellants then appealed to this Court.

Page 63 U. S. 468

MR. JUSTICE CLIFFORD delivered the opinion of the Court.

This was a suit in rem against the steamship The Keystone State, brought by the appellants as the owners of the barge known as the A. Groves, Jr., to recover damages on account of a collision which took place on the eighteenth day of August, 1857, between the steamer and the barge on the River Delaware, whereby the barge was sunk in the river and her cargo was greatly damaged.

At the time of the disaster, the barge was in tow of a propeller, called the Artisan, which was also owned by the appellants, and to which the barge was attached by a hawser about one hundred and seventy feet in length. It occurred between one and two o'clock in the morning, about twenty miles below the City of Philadelphia, to which port the steamer was bound on her return trip from Savannah in the State of Georgia.

According to the case made in the libel, the propeller, with

Page 63 U. S. 469

the barge in tow, was on her way from the City of New York to the City of Baltimore with her usual complement of freight. She was proceeding down the river on the eastern side of the channel, and the steamer was coming up the river on the opposite side of the channel, with ample room to have kept clear of the barge.

To show that neither the propeller nor the barge was in fault, it is alleged by the libellants that both those vessels had proper lights and that the propeller had sufficient lookouts properly stationed on the vessel, and that they were vigilantly employed in the performance of their duties. They also allege that the steamer, when about three-quarters of a mile distant from the propeller, changed her course more out into the stream of the river, heading diagonally across the channel in the direction of the descending vessels, and ran with great force and violence against the barge, striking her on the starboard side near the after gangway and cutting her down to such an extent that she immediately sank in the river. In this connection they also allege that the barge, at the time of the collision, was laden with a cargo of merchandise, valued at seventy thousand dollars, and that the goods were damaged by the disaster to an amount equal to half their estimated value.

It is denied by the respondents that the circumstances attending the collision are truly stated in the libel. On the contrary, they aver that it was occasioned wholly through the fault and gross negligence of those in charge of the descending vessels. To lay the foundation for that theory, they allege that while the steamer was proceeding up the river at mid-channel, in the regular course of her voyage, and when about four miles below Marcus Hook, the second mate, pilot, and lookout of the steamer, discovered lights directly ahead, which appeared to be about three miles distant; that the steamer continued her course up the channel, keeping the lights on her larboard bow, but as near ahead as was practicable; that after continuing that course for some time, and when about a mile distant from the lights, they were found to be the lights of the propeller, and appeared to be at mid-channel.

Page 63 U. S. 470

Orders were then given by the pilot of the steamer to port her helm, so as to bring the lights of the propeller a point on the larboard bow of the steamer; and the order was forthwith obeyed. At that time, the steamer, as alleged in the answer, was heading northeast by east; and she continued on that course, keeping the lights of the propeller one point on her larboard bow, until she approached within three hundred yards of the lights, when the propeller suddenly starboarded her helm, and attempted to cross the bows of the steamer. On seeing the propeller change her course in that direction, the pilot of the steamer gave the signal to slow and stop in immediate succession, and the orders, as alleged, were promptly obeyed. Those orders were so far carried into effect that the propeller passed on her course without injury; but the barge was dragged by the hawser directly against the bows of the steamer, and thereby received the damage, as alleged in the libel.

Such is the substance of the pleadings, respecting the circumstances attending the collision, so far as it is necessary to examine them at the present time.

After the hearing in the district court, a decree was entered for the respondents, dismissing the libel; and on appeal to the circuit court, that decree was affirmed -- whereupon the libellants appealed to this Court.

As appears by the proofs, the steamer, at the time of the collision, was well manned and equipped, and was in charge of a branch pilot, fully qualified to conduct and manage steam vessels on that river. She was a sidewheel steamer, of fifteen hundred tons burden, engaged in carrying freight and passengers, and had proper lights and sufficient and vigilant lookouts. They discovered the lights of the propeller when she was three miles distant, and continued to watch the lights till the collision occurred. On the other hand, the propeller was a vessel of one hundred and twenty-two tons burden, and the tonnage of the barge was about the same.

Three men, the master, the wheelsman, and one of the watchmen, were on the deck of the propeller at the time of the collision. All of the other hands, including the pilot, were below. Of those on deck, the master was standing forward

Page 63 U. S. 471

of the pilot house, but the watchman was standing aft the house, which he admits was higher than his head, so that he could not see over it. His position for a lookout was clearly an improper one, as the view forward was entirely obstructed by the house of the vessel. Chamberlain v. Ward, 21 How. 570. Lookouts stationed in positions where the view forward, or on the side of the vessel to which they are assigned, is obstructed by the lights or any part of the vessel, do not constitute a compliance with the requirement of the law.

To constitute such a compliance, they must be persons of suitable experience, properly stationed on the vessel, and actively and vigilantly employed in the performance of that duty.

In this case, however, it appears that the steamer was actually seen by the master, who was in charge of the deck, in season to have adopted every necessary precaution to have avoided the disaster, but he admits that he did not pay much attention to the approaching vessel. When he first saw her, he says she was proceeding right up the river, but adds, that in the course of five minutes she changed her course, and ran from the western towards the eastern shore, which is the theory set up in the libel. According to the evidence, the speed of the steamer was nine or ten miles an hour, and that of the propeller was seven or eight miles an hour, with an ebb tide. At the place where the collision occurred, the channel of the river is about three-fourths of a mile wide, and the evidence shows that there is a cove or bend in the river below, so that a vessel coming up the river in the night-time would appear to an inattentive or casual observer, standing on the deck of a descending vessel, as being near the western shore, when in point of fact she was at mid-channel. Witnesses on both sides were examined as to the character of the night, and they generally agree, that while it was somewhat cloudy, there were intervening stars, and that it was not unusually dark.

Two propositions were chiefly relied on by the libellants. In the first place it was insisted in their behalf, that the propeller, with the barge in two, ought to be regarded in the

Page 63 U. S. 472

same light as a sailing vessel, and that it was the duty of the steamer to keep out of the way. No authority was cited in support of the proposition, and we are not aware of any decided case that favors that view of the law. Steamers are required to keep out of the way of sailing vessels, upon the ground that their power and speed are far greater than vessels of the latter class, and because those in charge of them can more readily and effectually command and appropriate that power and speed so as to avoid a collision, when it would be impossible for the sailing vessel to keep out of the way. St. John v. Paine, 10 How. 583. The Genesee Chief, 12 How. 463. Steamship Co. v. Rumball, 21 How. 384. None of the reasons on which the rule is founded, as applied to sailing vessels, exists in a case like the present. Propellers have nearly the same speed as sidewheel steamers, and quite as much power. Whether they obey the helm as readily or not may admit of a question, but there is not sufficient difference in that behalf to justify any discrimination whatever in the application of the rules of navigation. If they take other craft in tow, those in charge of them ought to augment their vigilance in proportion to the embarrassments they have to encounter, especially when they do not see fit to slacken their speed.

It is insisted in the second place that the collision was occasioned through the fault of the steamer; that she changed her course and attempted to pass the bows of the propeller, as is alleged in the libel.

On the part of the respondents, this proposition of facts is denied, and they insist that the fault was committed by the propeller in omitting to port her helm and go to the right. Beyond question, the law is well settled that steamers approaching each other from opposite directions are respectively bound to port their helms and pass each other on the larboard side.

No attempt was made at the argument to controvert the proposition, and it is too firmly established by decided cases to require any argument in its support. The Duke of Sussex, 1 Wm.Rob. 285. The Gazelle, 1 Wm.Rob. 471. The James Watt, 2 Wm.Rob. 271. St. John v. Paine, 10 How. 558. The Oregon v. Rocca, 18 How. 572. Wheeler v. The

Page 63 U. S. 473

Eastern State, 2 Cur.C.C. 142. Much testimony was introduced on the one side and the other upon this point, and it is somewhat conflicting. All that can be done under the circumstances with any possible advantage to either party will be to state our conclusions upon the evidence. After a careful examination of the depositions, we think it is clearly proved that both vessels as they approached each other were near mid-channel. Most of the witnesses on board the steamer expressly affirm that she was near mid-channel when the lights of the propeller were first discovered, and they all agree that her helm was not changed, except for the purpose of bringing the lights of the propeller one point on her larboard bow, until the propeller starboarded her helm, and attempted to cross the bows of the steamer. That movement of the propeller was a direct violation of the rules of navigation, and was entirely without any excuse. Her master may have been deceived as to the course of the steamer, by the slight bend in the river; but if so, it is the misfortune of those who employed him that he was not better acquainted with the navigation, or more attentive to his duty.

The decree of the circuit court is therefore affirmed with costs.