1. Where the usage in navigating a river is that both ascending
and descending vessels shall keep to the right of the center of the
channel, which is the usage in the River Hudson, the omission to
comply seasonably with that regulation, if the omission contributes
to the collision, is a fault for which the offending vessel and her
owners must be responsible.
Page 73 U. S. 226
2. Compliance with such a usage is required in all cases where
the course of a vessel is such that, if continued, there would be
danger of collision with other vessels navigating in the opposite
direction.
3. Unless precautions are seasonable, they constitute no defense
against a charge of collision, although they may be in form such as
the rules of navigation require.
4. Objections to the amount of damages, as reported by a
commissioner and awarded by the admiralty court, will not be
entertained in this Court in a case of collision where it appears
that neither party excepted to the report of the. commissioner.
On the morning of May 16th, 1863, the steam tug
Hubbard
was slowly descending the west side of the Hudson River, here one
thousand or more feet wide. She was about one hundred and
seventy-five feet from the shore, and had in tow four canal boats,
of which the
Canisteo was one. She was now opposite the
lower part of Troy, a city on the east side of the river. At the
same time, the
Vanderbilt, a large steamer regularly
plying on the stream, was coming up it and was making for her dock
about a mile off, in the upper part of Troy. But she was on the
west side of the channel also, and had been sailing on that side of
it. The morning had been clear, but a fog bank settling itself at
that part of the river, both vessels as they entered it were unable
to see ahead. Running each on its course, they suddenly discovered
one another, the two in immediate proximity. There was apparently
no exception to be taken to the maneuvers of navigation of either
vessel in the circumstances. But coming thus, unawares, on each
other, the
Vanderbilt, in spite of all efforts made at so
late a moment, struck the
Canisteo, and being much the
larger vessel, sank her at once. No difficulty had existed as to
sea room for the steamer to pass to the right and east of the
descending tow. The owner of the
Canisteo now libeled the
Vanderbilt in the District Court for the Southern District
of New York, where a decree was given for the libellant, that court
considering that the
Vanderbilt was "disproportionately
out of the channel toward the west shore." On reference to a
commissioner,
Page 73 U. S. 227
the damages were fixed at $7,020. An appeal was taken to the
circuit court, no exception being taken in either court to the
amount of damages. On the appeal, the following opinion was
delivered by
"NELSON, J. The point pressing on the steamer is that she was
too far to the west of the channel of the river, and therefore, out
of her proper course. This view was taken by the court below, and
upon it a decree was rendered for the canal boat. We are inclined
to concur in this result. The west side is the natural and ordinary
track for descending vessels, and the
Vanderbilt, we
think, was bound to take notice of this fact and to have kept
nearer to the middle of the river. She had no right to act upon the
idea that the descending boat would take that course, and expect
her to pass to the left or starboard, between her and the west
shore. What makes the case more marked in this respect is the fact
that the steamer's dock was on the east shore, some mile above the
place of collision."
"DECREE AFFIRMED."
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
The libel was filed in the district court by the owner of the
canal boat called the
Canisteo against the steamer
C.
Vanderbilt in a cause of collision, civil and maritime.
Employment of the
Vanderbilt was to transport passengers
and freight between the Cities of New York and Troy, upon the
Hudson River, and the libel alleges that the canal boat was
employed in transporting freight between the former city and divers
ports and places on the same river and the Erie Canal. Allegations
of the libel are, that the collision occurred on the sixteenth day
of May, 1863, on the west side of the river, nearly opposite the
arsenal at Troy. Lading of the canal boat was corn and flour, and
the proofs showed that she was sunk by the collision, and that the
boat and
Page 73 U. S. 228
cargo became a total loss. Charge in the libel is, that the
disaster and loss were wholly occasioned by the carelessness and
negligent and unskillful management of those entrusted with the
navigation of the steamer.
Parties were fully heard in the district court, and the district
judge being of the opinion that the charge in the libel was true,
entered a decree for the libellant, and sent the cause to a
commissioner to ascertain the amount of damages.
Subsequently the commissioner made his report, and neither party
excepting to the same, it was confirmed by the court, and a final
decree entered for that amount in favor of the libellant. Appeal
was taken by the claimants to the circuit court, where the parties
were again heard upon the same evidence, and the circuit judge
being of opinion that there was no error in the record, affirmed
the decree, and thereupon the claimants appealed to this Court.
1. When the collision took place the canal boat, with there
others, was in tow of the steam tug O. C. Hubbard, and she was
proceeding down the river, having left her berth, at Troy, on the
west side of the river, at six o'clock in the morning. None of the
boats in tow carried any motive power, and the testimony shows that
the
Canisteo was lashed to the larboard side of the steam
tug, with one of the other three fastened to her larboard side, and
the other two were arranged in the same way on the starboard side
of the steam tug, which constituted the necessary motive power.
Berth of the
Vanderbilt, at Troy, was on the cast side of
the river, and she was on her return trip, from Albany, with
passengers and freight.
Although there was some fog when the tug, with the four canal
boats in tow, left the wharf in the morning, yet the witnesses
testify that objects could be seen at the same time on both sides
of the river, and that it was good weather. Heavy rains had caused
the water to rise eight or ten feet above the ordinary low water in
summer, which very much increased the breadth of navigation, as the
largest vessels could safely pass close to the shore. Speed of the
steam tug as she was proceeding down the river on the western
side
Page 73 U. S. 229
was not much greater than the current of the river, which did
not exceed four or five miles an hour. Usual pathway of steamers
ascending the river is on the east side of the center of the
channel, but the
Vanderbilt came up on the western side in
the usual pathway of descending boats and vessels, and the
testimony proves that she was moving through the water at nearly
double the rate of the steam tug with the tows. Length of the canal
boats was much greater than that of the steam tug; and the proofs
show that the
Vanderbilt struck the
Canisteo on
her starboard bow six or eight feet from the stem. Plain inference
from the position and character of the blow is, that the steamer
had ported her helm, and when the collision occurred was steering
towards the east side of the river.
Just before the collision took place both vessels passed into a
dense fog, which rested on the water, and the appellants contend
that the state of the weather was such that the steam tug, with her
tows, ought not to have left her berth and started down the river.
But the weight of the evidence shows that the proposition involved
in the defense is not well founded. On the contrary, it is quite
clear from the evidence that the indications as to the weather at
the time those in charge of the tug and tows decided to start on
the trip, fully justified their determination. Suggestion is made
that the tow was a large one, but it was well arranged, and the
boats, two on each side of the steam tug, being well over on the
western side of the channel, were proceeding slowly down the river
in their proper pathway. Ample room was left for the steamer to
have gone to the right, as the river there, at that stage of the
water, is nearly a thousand feet wide. Steamers may doubtless
ascend on either side of the river in the daytime when the view is
not obstructed or obscured by fog, but it was a fault in the
steamer, when she found she was approaching a fog bank, that she
did not port her helm and leave the accustomed pathway of
descending boats and vessels. Witnesses on board the steamer
testify that the whistle was blown to warn descending boats, and
that orders were given to stop and back as soon as the steam tug
and
Page 73 U. S. 230
tows were discovered, but it is quiet evident that all these
precautions were too late, as the collision was then inevitable.
Precautions not seasonably taken afford no defense against the
charge of negligence in cases of collision where it appears that
the disaster might have been prevented by earlier action. Steamers
approaching each other from opposite directions are required by the
general rules of navigation, as well as by the recent act of
Congress, to port their helms and pass to the right, but it is
obvious that one or both may omit to comply with the requirement
until their proximity is so close that a compliance is wholly
inadequate to accomplish any valuable purpose.
Proofs in this case show that the
Vanderbilt ported her
helm, but the change of her course was so late that it insured the
collision which might perhaps have been avoided if she had made an
effort to pass the descending boats on the starboard side next to
the western shore. The great fault was that she did not change her
course and pass to the eastern side of the channel before entering
the fog bank, as all the witnesses agree she might have done
without danger or serious inconvenience. Electing as she did to
continue her course up the river on the western side, where those
in charge of her navigation knew she was liable to meet descending
boats, she was bound to exercise great care and caution, and it is
clearly proved that she failed to comply with requirement until it
was too late to prevent the disaster.
Objection is made to the amount of the damages awarded, but the
objection cannot prevail, as no exceptions were taken to the
commissioner's report in the district court. Such objections will
not be entertained in this Court unless the claimant gave notice of
the same in the court below by appropriate exceptions to the
commissioner's report. Parties should present their objections at
the stage of the litigation when the errors, if any, may be
corrected without inconvenience and unnecessary expense, and if
they fail to do so without just excuse, they must be understood as
having acquiesced in the decision of the court.
Decree affirmed with costs.
