Steamers navigating in crowded channels and in the vicinity of
wharves, must be run and managed with great caution, and with a
strict regard to the established rules of navigation, including
that ore which requires them, when approaching from opposite
directions, to put their helms to port. If their the about to
attempt any maneuver not usual and clearly safe, such as running in
under the bows of another vessel in motion, they must not only
sound their whistle or give the other proper signal, but before
attempting the maneuver must be certain also that the signal was
heard and understood by the approaching vessel.
All steamers navigating the crowded waters of the New York
harbor, were bound in 1863 to obey the following RULES OF
NAVIGATION, prescribed originally for the conduct of passenger
steamers, but adopted by other vessels.
Page 76 U. S. 147
"RULE 1. When steamers meet 'head and head,' it shall be the
duty of each to pass to the right, or on the larboard side of the
other, and either pilot, upon determining to pursue this course,
shall give as a signal of his intention one short and distinct
blast of his steam whistle, which the other shall answer promptly
by a similar blast of the whistle. But if the course of each
steamer is so far on the starboard of the other as not to be
considered by the rules as meeting 'head and head,' or if the
vessels are approaching in such a manner, that passing to the right
(as above directed) is unsafe or contrary to rule by the pilot of
either vessel, the pilot so deciding shall immediately give two
short and distinct blasts of his steam whistle, which the other
pilot shall answer by two similar blasts of his whistle, and they
shall pass to the left, or on the starboard side of each
other."
"RULE 2. When steamers are approaching each other in an oblique
direction, they will pass to the right, as if meeting 'head and
head,' and the signal by whistle shall be given and answered
promptly, as in that case specified."
"RULE 3. If, when steamers are approaching each other, the pilot
of either vessel fails to understand the course or intention of the
other, whether from the signals being given or answered
erroneously, or from other cause, the pilot so in doubt shall
immediately signify the same by giving several short and rapid
blasts of the steam whistle, and if the vessels shall have
approached within half a mile of each other, both shall be
immediately slowed to a speed barely sufficient for steerageway,
until the proper signals are given, answered, and understood, or
until the vessels shall have passed each other."
"RULE 4. The signals, by blowing of the steam whistle, shall be
given and answered by pilots, in compliance with these rules, not
only when meeting 'head and head,' or nearly so, but at all times
when passing or meeting, at a distance within half a mile of each
other, and whether passing to the starboard or larboard."
"N.B. The foregoing rules are to be complied with in all cases,
except when steamers are navigating in a crowded channel or in the
vicinity of wharves; under these circumstances steamers must be run
and managed with great caution, sounding the whistle as may be
necessary, to guard against collisions or other accidents."
With these rules in force, the Burden, a small propeller
Page 76 U. S. 148
tug, was towing up the East River from Atlantic Dock, Brooklyn,
the canal boat
Kate McCord, heavily loaded with wheat, she
being fastened to the larboard side of the propeller. The propeller
with her tow was on her way from the Atlantic Dock, on the Brooklyn
side of the East River, to Pier 44, on the New York side of it, and
in a direct line from the dock to the pier. The tide was the middle
of the ebb, running strongly down. In consequence of the shape of
the land from Catharine Ferry to Atlantic Dock, there is a strong
eddy tide which runs up along the Brooklyn shore to the upper side
of the Fulton Ferry slip, when the tide is running ebb, and tugs
bound up seek that eddy tide for the double reason that they get
the aid of the eddy tide instead of the opposition of the ebb tide,
and they avoid vessels bound down, leaving to them the advantage of
the ebb tide and the breadth of the river. The propeller was,
accordingly, going slowly up in that eddy tide 100 to 150 feet from
the Brooklyn piers, and when she had nearly reached the ferry slip
she saw the
Scranton, a large sidewheel steamer with an
empty barge on each side, coming rapidly down the river, out
towards the middle of the river just above the Fulton Ferry.
The
Scranton, when about opposite the upper part of the
Fulton Ferry slip, starboarded her helm, and at a rapid rate swept
in, in a curve toward the Brooklyn shore, with the purpose of
running in under the bow of the propeller, and picking up a boat
lying on the lower side of the lower pier of the Fulton Ferry
slip.
The propeller, seeing the steamer thus coming dangerously
towards her, blew one whistle, which is the regulation signal to
indicate that she intended to keep to the right, and those on the
steamer testified that she blew two whistles, which is the
regulation signal that would have indicated that she was going to
the left; but the men on the propeller did not hear the two
whistles, and of course gave no answering signal. Indeed, had they
heard them, the men on the propeller, as it rather seemed, could
not at that time have done anything to prevent the collision,
situated as the propeller
Page 76 U. S. 149
image:a
Page 76 U. S. 150
was. The result was that the steamer ran directly into the canal
boat, which was lashed to the propeller, and did her and her cargo
serious injury, also injuring herself.
The owners of the canal boat libeled both the steamer and the
propeller to recover her damage by the collision, alleging a joint
or several negligence, and the owners of the steamer libeled the
propeller to recover her damage by the collision, alleging
negligence of the propeller alone.
The district court held that both steamers were in fault, and
decreed against them jointly for the whole loss. The claimants of
both vessels appealed to the circuit court. That court reversed the
decree of the district court so far as it affected the propeller,
and charged the whole loss upon the steamer, on the ground she was
wholly in fault.
From this decree the claimant of the steamer appealed to this
Court, and the libellants did likewise. The evidence was somewhat
voluminous, but not very conflicting on the material points.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Damages were claimed in this case on account of a collision
which occurred in East River, on the ninth of December, 1863,
between the canal boat
Kate McCord, and the steamboat
Joseph Johnson whereby the canal boat and her cargo,
consisting of seven thousand bushels of wheat, were greatly
injured.
Prior to the commencement of her trip, the canal boat was lying
in the Atlantic basin at Brooklyn, and the proofs show that she was
heavily laden, and that she was taken in tow there by the steam
propeller
William F. Burden, to be towed up the river to
pier forty-four, on the New York side of the river, for the purpose
of discharging her cargo and delivering the same on board of the
ship
Whampoa, then lying at that pier. She was lashed to
the port side of the propeller, and when the collision occurred,
the propeller with the canal
Page 76 U. S. 151
boat in tow was proceeding up the river to the place where her
cargo was to be transshipped.
Loss was sustained by the owner of the canal boat and by the
owners of her cargo, and they joined in the same libel, claiming
damages, as well of the propeller to which the canal boat was
lashed as of the steamboat
Joseph Johnson which collided
with the canal boat, and which was the immediate cause of the
injury both to the canal boat and her cargo.
Lashed to the propeller as the canal boat was, she was as
entirely under the control of the propeller as if she had been a
part of that vessel. When they were proceeding on their course up
the river, the
Johnson with two unladen canal barges in
tow, one on each side, started from Corlear's Hook, on the New York
side, on a trip down the river, inclining, however, towards the
Fulton Ferry dock, on the Brooklyn side, to a point just below the
lower slip of that dock, where she intended to take another boat in
tow. When the boats started on their respective trips it was about
eleven o'clock in the forenoon, and the tide at that time was half
ebb, with a strong current in the channel of three miles an
hour.
Vessels of that description proceeding up the river on that
side, in that state of the tide, usually keep close to the shore,
as they by that means avoid the downward current in the stream, and
get the aid of the eddy or reflex tide near the shore, which
facilitates their progress, and the evidence shows that the
propeller, with the canal boat in tow, was proceeding up the river
along that shore in the track usually pursued by steam tugs in
performing towage service under those circumstances.
Boats descending the river at ebb tide usually select the middle
of the channel, as their speed is much aided by the current, and
the witnesses generally concur that the
Johnson until just
prior to the collision, was proceeding down the river in a course
much nearer the center of the stream than the ascending boat with
her tow lashed to her port side.
Aided by the current the speed of the descending boat was seven
miles an hour, but the propeller with the canal boat
Page 76 U. S. 152
in tow was not able, in ascending the river, to make more than
three or four miles an hour.
Whatever may have been the cause, it is admitted by the master
of the
Johnson that he did not see the propeller until she
was opposite the slip next above the ferry slip, and he also states
that the propeller, at that time, was about the same distance below
the ferry that the
Johnson was above that point, and of
course they were not far distant from each other.
They were approaching at a combined speed of ten or eleven miles
an hour, but not exactly from opposite directions nor on lines
precisely parallel, as the
Johnson was nearer to the
center of the stream than the propeller, and her course was
inclining towards the Brooklyn shore. Strong doubts, however, are
entertained whether the vessels would have collided if both had
kept their course, but it is not necessary to decide that point, as
it is conceded that the helms of both were changed before the
collision occurred.
Appearance was regularly entered by the owners of the steamers,
and the claimants of each steamer filed separate answers, denying
that their vessel was liable for the injury, but the district court
held that both vessels were in fault, and entered a joint decree
for the libellants in conformity with the allegations of the libel.
Dissatisfied with the decree the claimants of the respective
steamers appealed to the circuit court, where all the parties were
again heard, and the circuit court affirmed the decree of the
district court as against the
Johnson but reversed it as
against the propeller, holding that the
Johnson was wholly
in fault for the collision. Whereupon the claimants of the
Johnson appealed to this Court, and the libellants also
appealed from so much of the decree as held that the propeller was
not in fault.
All persons engaged in navigating vessels upon navigable waters,
whether upon the seas or in rivers or harbors, are bound to observe
the rules of navigation recognized and approved by the courts in
the management of their vessels on approaching a point where there
is danger of collision.
Page 76 U. S. 153
Such rules are ordained and administered to prevent collision
and to afford security to life and property exposed to such
dangers, and experience shows that if they are seasonably observed
and strictly followed such disasters would seldom occur. [
Footnote 1]
Rules of navigation are obligatory upon vessels approaching each
other from the time the necessity for precaution begins, and they
continue to be obligatory as the vessels advance, so long as the
means and opportunity to avoid the danger remain. They are not
strictly applied to a vessel which is otherwise without fault in
cases where the proximity of the vessels is so close that the
collision is inevitable, and they are wholly inapplicable when the
vessels are so distant from each other that measures of precaution
have not become necessary to prevent a collision. But precautions,
in order to be effectual, must be seasonable, and if they are not
so, and a collision ensues because they were not adopted earlier,
it is no defense to show that they were adopted as soon as the
necessity for the precaution was perceived, nor to prove that at
the moment of the collision it was too late to render such a
precaution of any service. Unless precautions are seasonable they
are of little or no use, as it will seldom or never happen that a
collision could be avoided at the time when it occurred. [
Footnote 2]
Steam vessels, independently of the sailing rules enacted by
Congress, are regarded in the light of vessels navigating with a
fair wind, and are always under obligations to do whatever a
sailing vessel going free or with a fair wind would be required to
do under similar circumstances. [
Footnote 3]
Prior to the passage of the act of Congress prescribing sailing
rules, as well as since that time, steam vessels approaching each
other from opposite directions, so as to involve risk of collision,
were required to put their helms to port so that each may pass on
the port side of the other, and the court is of the opinion that
that rule is applicable in this
Page 76 U. S. 154
case, although the collision occurred before that act of
Congress went into operation. [
Footnote 4]
Suppose it to be true that these vessels were approaching each
other on intersecting lines, so that they would have collided if
they had not changed their course, then it is clear in view of the
circumstances that each was bound to port their helm and pass to
the right, as there was nothing to prevent them from complying with
that well known rule of navigation. They were navigating in the
daytime and in good weather, and they had an unobstructed view of
what was before them; but the
Johnson, instead of
complying with that rule of navigation, put her helm to starboard
for the purpose of crossing to the Brooklyn side and taking another
boat in tow, which was lying in the dock, just below the lower slip
of the Fulton Ferry. Descending the river, as the
Johnson
was, at the rate of seven miles an hour, she obeyed her helm
readily, and aided by the reflex tide as she left the stream she
came round quickly so as to head towards the shore, and as she
advanced on her new course she struck the canal boat on her port
side and caused the injury described in the libel.
Complaint is made by the appellant that the propeller was in
fault, but the court is of the opinion that what the propeller did
was correct, and that she left nothing undone which, under the
circumstances, was required of her by the rules of navigation. When
the master of the propeller saw that the
Johnson was
heading directly towards the canal boat, he ported her helm, which
was all he could do at that time, as the collision was inevitable.
Some benefit, no doubt, resulted from the movement, as it doubtless
diminished the force of the blow and lessened somewhat the injury
to the canal boat and her cargo.
Unexplained, the appellant concedes that the attempt of the
steamboat to cross the track of the propeller before she passed up,
would not be warranted by the rules of navigation, but he alleges
in argument that the
Johnson before
Page 76 U. S. 155
she starboarded her helm, gave notice to the propeller, by
blowing her steam whistle twice, that she intended to make that
change in her course and go to the left, but the weight of the
evidence is the other way, and the theory of the defense is
expressly contradicted by the answer, which must be regarded as
alleging the true state of the case.
Whether tested by the pleadings or the evidence, the case shows
that the helm of the steamboat was put to starboard when, if
changed at all, it should have been put to port, and that the
steamboat was put upon a course heading towards the Brooklyn shore,
across the track of the propeller, before the steamboat blew her
whistle, as alleged by the appellant.
Even supposing it were otherwise, and that the theory of fact
assumed by the appellant could be sustained, still the Court is of
the opinion that it would constitute no valid defense in this case,
for several reasons, which will be briefly explained:
(1) Because the respective vessels, as they approached each
other, were in such close proximity that the steamboat had no right
to insist upon any departure from the ordinary rules of
navigation.
(2) Because any such departure from the rules of navigation as
that contemplated by the steamboat, necessarily involved danger of
collision, as the propeller was nearer to the shore than the
steamboat.
(3) Because the steamboat, even if she did blow her whistle
before she starboarded her helm, still she had no right to change
her course until it was certain that the signal was heard and
understood by the approaching vessel.
(4) Because the signal, even if given before the order to
starboard, was nevertheless too late to justify the steamboat in
attempting to cross the bows of the propeller; but the Court is
satisfied that the signal, if given as alleged by the appellant,
was not understood by those in charge of the propeller, and that it
was culpable rashness, in view of the circumstances, for the
steamboat to attempt to cross the bows of the propeller before
receiving any signal that the propeller was willing to cooperate in
the proposed change of course.
Those on board the steamboat received no answer to their signal,
and it is reasonable to suppose that if they were attentive
Page 76 U. S. 156
to their duties they must have known that those in charge of the
propeller did not understand their signal, and consequently if they
made the proposed change in the course of their steamer, a
collision would follow, and if they did not so understand the
matter, it was their own fault.
Viewed in any light, the propeller was not at fault, and the
responsibility must rest on the steamboat. Our conclusion is, that
the
Johnson is liable for the whole damage, and that the
decree of the circuit court should be in all things affirmed.
Appeal was taken by the libellants from so much of the decree as
exonerated the propeller, but their claim, in the view of this
Court, is against the colliding steamboat, and not against the
propeller.
Decree in each case affirmed.
[
Footnote 1]
Steamship v.
Rumball, 21 How. 383.
[
Footnote 2]
The Governor, 1 Clifford 97.
[
Footnote 3]
St. John v.
Paine, 10 How. 583.
[
Footnote 4]
The Sussex, 1 Robinson 275;
The Niagara, 3
Blatchford 37.
