1. Although where two steamships are running in the same
direction -- the ship astern sailing faster than the ship ahead --
the ship astern is in general bound to adopt the necessary
precautions to avoid a collision, the rule does not in general
apply in a case where the ships are running on intersecting lines,
and the faster sailer is
thus coming up. In such a case,
the fourteenth article governs, and the ship which has the other on
her own starboard side must keep out of the way.
2.
Restitutio in integram being the rule in suits for
damages occasioned by collision, demurrage was held to have been
rightly given to the owners of a New York ferry boat, injured by a
tortious collision, during the number of days that she had
necessarily to lay by for repairs, the rate being fixed at what the
superintendents of three principal ferries of New York gave it its
their opinion, assigning their reasons and showing estimates, that
the service of the boat was worth; and this right to demurrage was
held not to be affected by the fact that no
charter rate
per day existed for ferry boats, or the other fact that the owners
of the boat (a ferry company) had another ferry boat which they
kept for emergencies, and which they put on the line during the
time that the injured one was repairing.
Congress, by an Act of April 29, 1864, "fixing certain
Page 81 U. S. 271
rules and regulations for preventing collisions on the water,"
made among them the following:
"
TWO SHIPS UNDER STEAM MEETING"
"
Article 14. If two ships under steam are crossing so
as to involve risk of collision, the ship which has the other on
her own starboard side shall keep out of the way."
"
CONSTRUCTION OF ARTICLES 14 &c."
"
Article 18. Where by the above rule one of two ships
is to keep out of the way, the other shall keep her course subject
to the qualifications contained in the following article:"
"
PROVISO TO SAVE SPECIAL CASES"
"
Article 19. In obeying and construing these rules due
regard must be had to all dangers of navigation, and due regard
must also be had to any special circumstances which may exist in
any particular case, rendering a departure from the above rules
necessary in order to avoid immediate danger."
With these rules in force, the James Watt, a North River ferry
steamboat and a fast sailer, set out from her slip at Hoboken, New
Jersey, opposite the upper part of New York, to make her regular
ferry trip to her slip at the foot of Barclay Street, a point about
a mile lower down on the opposite side of the river. This made her
course across the river southeast. A few minutes previously, the
steam tug
Cayuga, a less fast sailer than the ferry boat,
was setting out from her slip at Desbrosses Street, a point on the
New York side about half a mile lower down than Hoboken, and of
course about half a mile above Barclay Street. Her purpose was to
go over to certain wharves on the Jersey shore, not very far from
opposite Barclay Street; meaning, however, first to go in to Hubert
Street -- a street about seven hundred feet below Desbrosses -- and
there to take a boat in tow. Setting off, she did round in as if to
go in to Hubert Street, but perceiving that she could not get the
boat out from the place (the dock being then crowded), rounded out
again, and pursuing a course about south-southwest went out toward
the middle of the river, about one-third into the stream.
Pursuing
Page 81 U. S. 272
their respective courses the two boats were on intersecting
lines;
the tug having, of necessity, the steamer on her
starboard side until the point of intersection should be
passed. The ferry boat having been the faster sailer, and her
point of departure at Hoboken having been farther north than that
of the tug on the opposite or New York side of the river, she was
continually coming nearer to the tug, but coming up on an
intersecting line and not directly astern. The possibility of a
collision was, of course, obvious to any intelligence, from the
time the two boats left their respective wharves. As they got near
the middle of the stream it became more plain; and by degrees, as
they approached, the possibility passed into a probability.
Coming quite near to each other,
the ferry boat being still
on the tug's starboard side, and just before reaching the
point where their courses if adhered to would intersect, the tug
stopped her engine for a short time, and then put it ahead. The
ferry boat having supposed, when she saw that the tug's engine was
stopped, that it was meant that she, the ferry boat, should go
ahead, now dashed on, but the tug after a short stoppage put her
engine into motion again, and a collision followed. The ferry boat
was struck on the port bow, and so much injured that she had to go
into dock and remain there seventeen days for repairs; the company
which owned her putting on the line a spare boat which they owned
and kept to supply emergencies. Hereupon the owners of the ferry
boat libeled the tug in the district court at New York. That court
condemned the tug, and awarded to the owners of the ferry boat $75
a day for the time she was necessarily laid up for repairs; the
superintendents of three leading ferries in New York harbor having
expressed the opinion, and the reasons of it with an exhibition of
estimates, that the boat was worth that much per day; though it was
admitted by her owners that there was no fixed charter rate for
ferry boats.
The circuit court affirmed the decree, and from this the present
appeal came.
Assuming the case as above given to be the case made out
Page 81 U. S. 273
by the evidence (which was what the court did assume), the
points, of course, were:
1st. Which boat had violated the rules of navigation?
2d. Whether the decree for demurrage was rightly made on the
testimony, and with the admitted want of evidence of a charter rate
per day for ferry boats; and when the company supplied the place of
the injured boat with another boat of their own, kept for
emergencies of a sort such as that which had happened.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Collision cases usually present difficult questions of fact,
arising from conflicting testimony, and the case before the court
is one of that class, but both of the subordinate courts decided in
favor of the libellants, and our decision, with brief explanations,
must be in the same way.
The libellants are the owners of the steam ferry boat
James
Watt, employed in transporting passengers and freight between
the port of New York and the City of Hoboken, in the State of New
Jersey, and they filed the libel in the district court against the
steam tug
Cayuga, usually employed in towing vessels and
other watercraft, charging that the steam tug was so improperly and
unskillfully managed and navigated that she ran into and upon the
James Watt, causing to the latter steamboat great injury
and damage, as more fully set forth in the libel. By the pleadings
and evidence, it appears that the collision occurred at four
o'clock in the afternoon of the thirteenth of June, 1866, in clear
weather and under circumstances which show beyond all doubt that
one or both vessels were in fault. Daily trips were made by the
James Watt, and at the time she was making her regular
trip down the river to her place of destination at the foot of
Barclay Street, on the New York side of the river. She started from
her regular slip at Hoboken, and as she proceeded on her route she
was heading obliquely across the
Page 81 U. S. 274
river towards the wharf to which she was bound. Shortly after
the
James Watt left her wharf at Hoboken the
Cayuga came out from the slip at the foot of Desbrosses
Street, and having rounded to, nearly opposite Hubert Street, she
then took a course down the river, heading for the Jersey side of
the river, though less obliquely than the ferry boat of the
libellants, and they collided when the former had advanced about
one-third of the way across the river towards the Jersey shore.
Enough appears to show that the
James Watt was heading in
a south by east course, and that she was running in the track she
usually followed in making her daily trips, and that the
Cayuga was heading nearly in a south-southwest course for
the place of her ultimate destination on the opposite side of the
river. Both steamers were well manned, and each was seasonably seen
from the other and at about the same time, and as it was daylight
and good weather, and as it was obvious that their courses
intersected, it must have been known to those entrusted with their
navigation that a collision might ensue unless some proper
precaution was seasonably adopted to prevent such a disaster. They
had plenty of sea room, and if either had changed her helm the
collision would have been prevented, but as the
Cayuga had
the
James Watt on her own starboard side throughout, from
the time she took her course down the river to the time of the
disaster, the sailing rules made it her duty to keep out of the
way. Article fourteen prescribes that
"if two ships under steam are crossing so as to involve risk of
collision, the ship which has the other on her own starboard side
shall keep out of the way of the other,"
and the court is of the opinion that the circuit judge was
correct in deciding that that rule is applicable in this case.
Suggestion is made, and perhaps it is correct, that the
Cayuga was slightly ahead when she first took her course
and started down the river, but the speed of the
James
Watt being somewhat the greater it appears that she soon made
such an advance that it became evident that unless one or the other
gave way the danger of collision would become imminent. Apply that
rule and it is clear that it was the
Page 81 U. S. 275
duty of the
Cayuga to keep out of the way, inasmuch as
she had the
James Watt on her own starboard side. Every
vessel overtaking another vessel, it is said, shall keep out of the
way of the vessel ahead, but that rule cannot properly be applied
in this case, as the two steamers were crossing or running on
intersecting lines, in which case the question is not in general
affected by the comparative speed of the two vessels, nor by the
fact that the one or the other was slightly ahead when the
necessity for precaution commenced.
Undoubtedly where two ships are running in the same direction,
the ship astern, if she is sailing faster than the ship ahead, is
in general bound to adopt the necessary precautions to avoid a
collision, but it is clear that the rule does not in general apply
in a case where the ships are crossing or are distant from each
other on a right line and are running on intersecting lines, as it
is expressly enacted where two steamships are crossing that the
ship which has the other on her own starboard side shall keep out
of the way of the other. [
Footnote
1] Such is the express regulation enacted by Congress, and the
correlative duty of the other vessel is described in the eighteenth
article, which is, that where one of two ships is required to keep
out of the way the other shall keep her course, subject to the
qualifications contained in the succeeding article, which is
entitled a "proviso to save special cases." By that proviso it is
prescribed that in obeying and construing those rules due regard
must be had to all dangers of navigation, and to any special
circumstances which may exist in any particular case, rendering a
departure from those rules necessary in order to avoid immediate
danger. [
Footnote 2] Persons
engaged in navigating vessels upon the seas are bound to observe
the nautical rules enacted by Congress, whenever they apply, and in
other cases to be governed by the rules recognized and approved by
the courts. Nautical rules, however, were framed and are
administered to prevent such disasters and to afford security to
life and property, but
Page 81 U. S. 276
it is a mistake to suppose that either the act of Congress, or
the decisions of the courts, require the observance of any given
rule in a case where it clearly appears that the rule cannot be
followed without defeating the end for which it was prescribed or
without producing the mischief which it was intended to avert.
Qualifications of that character were sanctioned by this Court
years before the existing rules were enacted by Congress, and no
doubt is entertained that the proviso to save special cases
contained in those rules was intended to affirm in substance and
effect the views upon that subject which this Court had previously
expressed. [
Footnote 3]
Responsive to the charge that the
Cayuga did not observe
the fourteenth article of the sailing rules, the respondents
attempt to show that the
James Watt did not keep her
course, as required by the eighteenth article -- that she was
running faster than the steam tug, and that having passed her on
the starboard side she suddenly sheered across her bows, and that
the two steamboats in a few seconds came together, the stern of the
Cayuga striking against the port stern quarter of the
James Watt and caused the injuries alleged in the libel.
Instead of that, the district court found, as matter of fact, that
the
Cayuga, just before she reached the point of
intersection, stopped her engine, giving those in charge of the
ferry boat to understand that the latter steamer could pass in
safety, which had the effect to mislead those in charge of the
James Watt, as the
Cayuga in a brief period put
her engine in motion and started ahead, and that the collision
immediately ensued.
Additional testimony was taken, subsequent to the appeal from
the decree of the district court, but the circuit court, in view of
the whole case, was still inclined to the opinion that the finding
of the district judge was correct. Considerable conflict exists in
the testimony on that point, but it is not necessary to decide it,
as the same conclusion must be adopted even if it be admitted that
the steam tug did not stop her engine and mislead the ferry boat,
as is supposed
Page 81 U. S. 277
by the libellants, as it is clear that the charge made against
the
James Watt that she changed her course is not
sustained.
Even if the
Cayuga did not do anything to mislead the
James Watt, it is clear that she did not keep out of the
way, as required by the fourteenth sailing rule, nor did she adopt
any proper precaution to prevent a collision. Bound as she was to
keep out of the way, the fact that she did not comply with that
requirement is as complete an answer to the defense set up by the
claimants as the proof would be that she misled the other vessel,
as charged by the libellants. Having done nothing to prevent the
collision, she must abide the consequences, unless she can show
some good reason for her failure to perform her duty in that
regard. All the excuse, or the principal one, offered is the one
before mentioned, that she was ahead and that it was the duty of
the
James Watt to have adopted the necessary
precautions.
Where a steamer astern, in an open sea and in good weather, is
pursuing the same general course as the one ahead, and at greater
speed, the steamer astern, as a general rule, is required to give
way or to adopt the necessary precautions to prevent a collision,
as the steamer ahead is entitled to the road, but the Court here
concurs with the circuit court that that rule did not apply in this
case, even if it be conceded that the
Cayuga, after she
rounded to, and when she first took her course down the river, was
slightly ahead, as the relative situation of the two steamers even
at that time, was that described in the fourteenth article of the
sailing rules, and not that described in the seventeenth article,
as is supposed by the respondents. Precautions at that time were
not necessary, as the distance between the two steamers, measuring
east and west, was very considerable, but they were running on
converging lines, and as they advanced that distance was fast
reduced, which soon created the necessity for precautions to
prevent a collision, and the testimony entirely satisfies the court
that at the time the necessity for precaution commenced, the two
steamers were nearly abreast, and that the circuit court was right
in holding that the fourteenth sailing rule is applicable to the
case,
Page 81 U. S. 278
and that it was the duty of the
Cayuga to keep out of
the way.
Reference was made to a commissioner in the district court to
ascertain the amount of the damages, and he reported the whole
amount to be two thousand six hundred and seventy-two dollars and
thirty cents, as more fully shown in the record. Exceptions were
duly taken by the respondents to various items of the report, but
the court overruled the exceptions and confirmed the report.
Included in the report of the commissioner was an allowance of
seventy-five dollars per day for the seventeen days the steamer was
detained while the repairs were being made, and to that allowance
the respondents still object. Other exceptions to the
commissioner's report were taken at the time, but they have not
been much pressed in argument and are overruled as not well
founded. Reasonable demurrage is certainly a proper charge, as the
leading maxim is
restitutio in integram in all suits for
damages occasioned to vessels by collision. [
Footnote 4] Subject to the provision that owners
of ships and vessels are not now liable for any such loss, damage,
or injury, beyond the amount of their interest in the ship and her
freight then pending, it is settled law that the damages which the
owner of the injured vessel is entitled to recover in cases of
collision are to be estimated in the same manner as in other suits
of like nature for injuries to personal property, and the owner, as
the suffering party, is not limited to compensation for the
immediate effects of the injury inflicted, but the claim for
compensation may extend to loss of freight, necessary expenses
incurred in making repairs, and unavoidable detention. [
Footnote 5] Tested by that rule, it is
quite clear that the explanations given by the respective judges in
the subordinate courts are sufficient to show that the report of
the commissioner was correct. Many other authorities might be
referred to in support of the rule here laid down,
Page 81 U. S. 279
but inasmuch as the subject was fully considered in the case of
The Baltimore, the Court does not deem it necessary to
give it much additional consideration.
Decree affirmed.
[
Footnote 1]
Whitridge v.
Dill, 23 How. 453.
[
Footnote 2]
13 Stat. at Large 60, 61.
[
Footnote 3]
Steamship Co. v.
Rumball, 21 How. 385.
[
Footnote 4]
The
Baltimore, 8 Wall. 385.
[
Footnote 5]
The Cayuga, 2 Benedict 125;
S.C., 7 Blatchford
389;
S.C. 1 Benedict 171.
