A statement that a steamship, in the harbor of New York, with no
fog, meeting a tug with a tow, starboards after receiving two
whistles from the tug and subsequently ports and attempts to pass
between the tug and her tow, is grossly improbable.
Page 157 U. S. 61
A steamship, running in a fog at dead slow and coming in contact
with a tug, cannot be held responsible simply because, a few
minutes before the collision, she had been running full speed.
A steamer funning in a fog is not obliged to stop at the first
signal heard by her unless its proximity be such as to indicate
immediate danger.
The remarks of the Court in
The Colorado, 91 U. S.
692,
91 U. S. 698,
held not to apply to this case.
The findings show that the tug was in fault in failing to send
three blasts of the whistle in quick succession.
When, in a collision case, uncontradicted testimony establishes
fault on the part of one vessel, the mere raising a doubt touching
the conduct of the other will not overcome its effect.
For reasons stated in the opinion, the Court regrets that the
tug could not be brought into this case, and it affirms the decree
of the court below.
This was a libel in admiralty for a collision which took place
on May 24, 1887, in the lower bay of New York, between the bark
Quickstep, then in tow of the tug
Leonard
Richards, and the Norwegian steamship
Ludvig Holberg,
outward bound, and in ballast. The suit, which was promoted by the
owner of the cargo of the bark, was originally begun against both
the tug and the steamship, but no service appears to have been
obtained upon the tug, as the steamship alone appeared and
answered. The district court dismissed the libel, and libelant
appealed to the circuit court, which affirmed the decree of the
district court and made the following findings of fact:
"(1) The libelant Stafford was the owner of the bark
Quickstep before and at the time of her loss on the 24th
of May, 1887. The libelant the F. O. Matthiessen & Wiechers
Sugar Refining Company is a corporation, and was the owner of a
cargo of sugar laden on board said bark."
"(2) On the afternoon of the 24th of May, 1887, the bark
Quickstep, laden with a cargo of sugar, was being towed
from sea into the port of New York by the tugboat
Leonard
Richards on a hawser eighty fathoms long. While proceeding up
about in the middle of the main ship channel, and when a little to
the southward and eastward of buoy No. 11 at about 4:26 p.m., she
was run into by the steamship
Ludvig Holberg, the latter
vessel striking the bark on her
Page 157 U. S. 62
port quarter, about the mizzen topmast backstay, cutting into
her after companion door, a distance of about nine feet, cutting
her open so that the cargo rolled out. Immediately after the
collision, said bark began to sink, and, while sinking, was towed
by the tug onto the west bank, where she grounded in 25 feet of
water, about a quarter of a mile below buoy No. 11, and became a
total loss, and her cargo was nearly all lost."
"(3) The bark was 170 feet long, 37 feet beam, 23 feet depth of
hold, and was laden with 1,024 tons of sugar, and drew 20 feet of
water."
"(4) The
Ludvig Holberg, which hails from Bergen,
Norway, was an iron screw steamship of 687 tons register, 200 feet
long. The claimants, Christopher Kahrs and others, were her owners.
She was in ballast, drawing 13 feet aft and 9 feet forward, bound
for Barracoa for fruit. She was tight, staunch, strong, and
properly manned and officered, having a competent master and
officers and a full complement of men. At and prior to the time of
collision, her master and pilot were on the bridge. She steers by
hand, and there was at her wheel one ordinary seaman, steering the
vessel as directed by the pilot. The first officer and second
officer were on lookout on the port and starboard sides,
respectively, of the forestay, which is fastened to the stem. Back
of them, by the windlass, was the carpenter, also on lookout."
"(5) The steamship started from pier 15, East River, sometime
between 3:05 and 3:15 p.m. She ran slow out of the East River, but
soon increased to full speed, and continued to run at that rate
until, fog having set in, she reduced to half speed, and later to
dead slow. Her motion through the water was, while at full speed,
about 9 to 9 1/2 knots; while at half speed, about 6 1/2 to 7
knots; while at dead slow, about 3 1/2 knots an hour. She had been
running at the latter rate for a few minutes only, probably not
more than four or five, before the collision. The pitch of her
screw was 14 feet 2 inches, and at full speed she made from 69 to
71 revolutions per minute; at half speed, from 40 to 45 to 50
revolutions per minute, and at slow speed, from 20 to 25 to 26
revolutions per minute."
"(6) She was off Bedloe's Island between 3:27 and 3:32,
Page 157 U. S. 63
and it was nearly 4 o'clock when she reached Fort Lafayette. The
distance from that point to the place of collision is a little over
3 1/8 knots. She carried the ebb tide with her from Bedloe's Island
to a little below the forts. After a brief period of slack water,
and until the collision, there was a flood tide. Its set was about
S.W., which helped a vessel coming in about one knot an hour, and a
vessel going out about half a knot an hour. The wind was southerly,
blowing a stiff breeze."
"(7) At the time and place of collision, there was so much fog
as to prevent vessels from being visible to each other for more
than a short distance (estimated by the witnesses from the Holberg
at between 200 and 300 feet), and such as to require the sounding
of fog signals under the rules. Such signals were sounded by the
Ludvig Holberg. This fog had prevailed between the Narrows
and buoy No. 11 during a period of at least 15 minutes before the
collision."
"(8) The
Ludvig Holberg ran into this fog about the
time she passed the forts, and at that time began sounding fog
signals, but did not reduce her speed until she had run some
distance below the forts. Then she reduced to half speed only, and
did not further reduce her speed until about buoy No. 13."
"(9) By the time she reached a point a little below buoy No. 13,
she had slowed down to about four knots over the ground. From that
point to the place of collision, a distance of about 4,500 feet,
she did not increase her speed, proceeding down the channel,
keeping upon the starboard side, as near the channel buoys as she
could safely go, and sounding fog signals from time to time."
"(10) While she was thus proceeding, she heard one blast right
ahead, then another a little more on the starboard bow. Both these
were blown by the tug, which was not at that time visible through
the fog to those on board the Holberg."
"(11) Almost immediately thereafter, the tug came in sight, only
a few hundred feet off, and a little on the steamer's starboard
bow, and gave a signal of two blasts."
"(12) Neither the bark nor the hawser was then visible, and no
signals indicated to the
Ludvig Holberg that the tug had a
tow nearly 500 feet behind her. "
Page 157 U. S. 64
"(13) Upon receiving the whistle of two signals from the tug,
the steamer starboarded and passed the tug starboard to starboard,
clearing her about 30 feet."
"(14) Then, for the first time, the
Ludvig Holberg
became aware of the presence of the
Quickstep, which was
not following directly after the tug, but to starboard of her, and
whose pilot at that time, by putting her wheel hard a-port, threw
her head somewhat more to starboard."
"(15) Thereupon the steamship ported, in order to go between the
tug and the bark at the same time hailing the tug to cast off the
hawser."
"(16) If the hawser had been cast off promptly, the steamer
would probably have gone safely between the tug and the bark."
"(17) The hawser was not cast off, and the steamer, running
against it with her starboard bow, parted it, and at the same time
her bow was swung to port, resulting in collision with the bark's
port quarter."
"(18) The steamer stopped and reversed as soon as she saw the
tug had a vessel in tow, but not before, and was nearly stopped at
the time of collision."
"(19) Had the steamer been aware, when she starboarded to pass
the tug, that the latter vessel had the
Quickstep in tow
on a hawser of 80 fathoms, she could, and in all probability would,
have avoided the collision."
"
Conclusions of Law"
"(1) Said collision was not due to any fault or negligence of
those in charge of the
Ludvig Holberg."
"(2) The libels herein should be dismissed, as already decreed
by the district court, with costs to the claimants in both
courts."
Claimants also put in evidence a duly certified copy of the
following rule of the supervising inspectors:
"Rule X, Section 8. All steam vessels (except upon the Red River
of the North and rivers whose waters flow into the Gulf of Mexico),
when engaged in towing during fog or thick
Page 157 U. S. 65
weather, shall sound three distinct blasts of their steam
whistles in quick succession, repeating at intervals not exceeding
one minute."
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case turns almost altogether upon questions of fact, and
particularly upon the existence and density of the fog at the time
of, and immediately before, the collision. From the opinions both
of the circuit and district courts, it would appear that libelant
took the ground in both courts that there was little or no fog
prior to the collision, and no fog signals were given by the tug,
while the steamship's witnesses claimed that the fog had set in
from fifteen to thirty minutes before, and became so dense that
neither the tug nor the bark could be seen over four hundred feet
distant, and that the steamship was regularly sounding her steam
whistle. If there were no fog, then the steamship was grossly and
inexplicably in fault for starboarding, after receiving two
whistles from the tug, and subsequently porting, and attempting to
pass between the tug and her tow. Indeed, the very flagrancy of her
fault in this particular was such as to lead to the belief that it
is not likely to have been committed.
In this Court, however, libelant takes the position that the
steamship
Holberg was in a dense fog from the time of
passing the Narrows at about four o'clock, up to the time of the
collision at 4:26; that the
Quickstep was not, however, in
this fog, and hence the witnesses on the steamer, looking from the
fog into clear weather, could see the tow further than the
witnesses on the tug, looking into the fog, could see the steamer.
The difficulty with this assumption is that there is nothing in the
facts to support it. The seventh finding is
Page 157 U. S. 66
that
"at the time and place of collision there was so much fog as to
prevent vessels from being visible to each other more than a short
distance (estimated by the witnesses from the Holberg at between
200 and 300 feet), and such as to require the sounding of fog
signals under the rules. Such signals were sounded by the
Ludvig Holberg. This fog had prevailed between the Narrows
and buoy No. 11 during a period of at least 15 minutes before the
collision."
Finding No. 10 is:
"While she [the steamship] was thus proceeding, she heard one
blast right ahead; then another, a little more on the starboard
bow. Both these were blown by the tug, which was not at the time
visible through the fog to those on board the Holberg."
The opinion, too, of the district judge is the direct converse
of the respondent's argument in this particular, wherein he
says:
"Some further explanations of the discrepancies between the
witnesses of the bark and of the
Ludvig Holberg may be
found in the fact, often testified to before me, that objects
cannot be distinguished so easily or so far in looking toward the
fog as in looking away from it. The bark's witnesses may therefore
have been able to distinguish the steamer before the latter could
distinguish the bark."
There is a further finding (No. 8), that the
Holberg
"ran into this fog about the time she passed the forts," from which
we infer, and such also is the testimony, that the fog was coming
up the bay from the southward, whereas the theory of the libelant
assumed that there was a bank of fog at and just below the Narrows,
while the weather was comparatively clear where the
Quickstep was.
The stress of the libelant's argument is that, considering the
state of the weather, the steamer was not proceeding at the
moderate rate of speed required by law in foggy weather, and did
not take prompt measures by stopping and reversing to avoid a
collision. The finding as to her general speed is (No. 5) that
she
"started from Pier 15, East River, sometime between 3:05 and
3:15 p.m. She ran slow out of East River, but soon increased to
full speed, and continued to run at that rate until, fog having set
in, she reduced to half speed, and later to dead slow. Her motion
through the water was, while
Page 157 U. S. 67
at full speed, about 9 to 9 1/2 knots, while at half speed,
about 6 1/2 to 7 knots; while at dead slow, about 3 1/2 knots an
hour. She had been running at the latter rate for a few minutes
only, probably not more than four or five, before the
collision."
"(6) She was off Bedloe's Island between 3:27 and 3:32, and it
was nearly four o'clock when she reached Fort Lafayette. The
distance from that point to the place of collision is a little over
3 1/8 knots."
"(8) At that time [as she passed the forts] she began sounding
fog signals, but did not reduce her speed until she had run some
distance below the forts. Then she reduced to half speed only, and
did not further reduce her speed until about buoy No. 13."
"(9) By the time she reached a point a little below buoy No. 13,
she had slowed down to about four knots over the ground. From that
point to the place of collision, a distance of 4,500 feet, she did
not increase her speed."
We cannot say that these findings exhibit any fault on the part
of the steamship in this particular. She was clearly not bound to
stop solely on account of the fog, and if she had been running dead
slow for four or five minutes before the collision, she cannot be
held in fault for what her previous speed may have been. If she ran
twenty miles an hour down to the Narrows, and was running dead slow
at the time she first heard the tug's whistle, fault could not be
imputed to her for her previous speed.
These findings, however, are attacked upon the ground that the
testimony showed that the steamship passed Fort Lafayette at 4:05;
that the collision occurred at 4:26, 3 1/8 knots, or 19,000 feet,
below the fort, thus implying that she must have covered that
distance at the rate of over 9 knots an hour. However persuasive
this argument may have been when addressed to the district or
circuit court, it is entitled to but little weight here, since the
finding is that "it was nearly four o'clock when she reached Fort
Lafayette," and that four or five minutes before the collision she
had been running dead slow. The finding of the district judge was
also that at the time the
Holberg was sounding her
signals, she was going "dead slow," not over 3 1/2 knots.
Page 157 U. S. 68
There is no such manifest inconsistency between the findings of
the circuit court in this particular as to require us to reject
either of them. Both of them may be true, and when it comes to
fixing the time exactly to the minute, there is always a liability
to error. The testimony of the officers and crew of the
Holberg as to her speed is not only uniform, but is
corroborated by that of the master of the steamboat
St.
Johns, which passed her abreast of buoy 13, while going
herself at a speed not exceeding five miles an hour. It is
sufficient to say in this connection that there is no such
unanimity of testimony as to compel us to say that both courts were
mistaken in finding that the steamer was proceeding dead slow at
the time she heard the tug's whistle. There was some evidence to
that effect, and that is sufficient to support the finding.
Did she act with sufficient promptness in stopping and reversing
after she became aware of the proximity of the tug? The finding in
that particular is:
"(10) While she was thus proceeding, she heard one blast right
ahead; then another, a little more on the starboard bow. Both these
were blown by the tug, which was not at that time visible through
the fog to those on board the
Holberg."
"(11) Almost immediately thereafter, the tug came in sight, only
a few hundred feet off, and a little on the steamer's starboard
bow, and gave a signal of two blasts."
"(12) Neither the bark nor the hawser was then visible, and no
signals indicated to the
Ludvig Holberg that the tug had a
tow nearly 500 feet behind her."
No case has ever held that a steamer is obliged to stop at the
first signal heard by her unless its proximity be such as to
indicate immediate danger. The next signal denoted that the tug was
coming down on the starboard bow of the steamer, and as she came in
sight almost immediately thereafter, only a few hundred feet off,
and there was nothing to indicate the presence of a tow, the
steamer was in no fault for proceeding, and as a matter of fact she
passed the tug in safety. Had she been aware of the presence of the
tow, a wholly different question would have been presented. The
fact that the tug was under a rank sheer to port, as claimed by the
bark, does not affect this question. Indeed, there is
Page 157 U. S. 69
nothing in the findings to show it, and if it were so, it
indicated safety, rather than danger, as such course would take her
away from that of the steamer.
It is found (18) that "the steamer stopped and reversed as soon
as she saw the tug had a vessel in tow, but not before, and was
nearly stopped at the time of the collision." This finding is also
attacked upon the ground that it is inconsistent with the second
finding, that the steamship cut into the bark a distance of nine
feet, cutting her open so that the cargo rolled out. There is no
finding, however, as to the speed of the
Quickstep at the
time of the collision, and if the steamer had come to a standstill,
a speed of five miles an hour on the part of the bark would have
had the same effect in crushing her sides that the same speed would
have had if she had been at rest, and the steamer in motion. It was
also the opinion of the district judge that the force of the blow
was mainly owing to the forward motion of the bark. Though the
collision was conclusive evidence of speed on the part of one
vessel or the other, it was not conclusive evidence of speed on the
part of the steamship.
While it was held by this Court in
The Colorado,
91 U. S. 692,
91 U. S. 698,
that a steamer of 1,470 tons ought to have more than one wheelsman
in a fog, it was not laid down as a general rule applicable to all
steamers, but was based upon the size of the propeller in that
case, and upon the fact that when the emergency came, the mate
deemed it necessary to order the lookout to leave the place where
he was stationed and go to the wheel to help the wheelsman put the
wheel over, leaving the propeller, for the time being, without any
lookout. It was said that
"steamers of such size, under such circumstances, ought never,
in a dark night, to be without a watch on deck sufficiently
effective to change the course of the vessel with celerity without
withdrawing the lookout from his station and appropriate
duties."
These remarks have no necessary application to a steamer of 687
tons, which is found by the circuit court to have been "properly
manned and officered, having a competent master and officers, and a
full complement of men." There seems to have been no fault on
Page 157 U. S. 70
the part of the steamship by reason of any inability of the
wheelsman to turn the wheel with sufficient promptness.
Upon the findings in this case there can be no doubt of the
fault of the tug in failing to conform to the rule of the
supervising inspectors requiring steam vessels, when engaged in
towing during a fog, to sound three distinct blasts of their steam
whistles in quick succession at intervals not exceeding one minute.
In fact, the tug appears to have sounded no fog signals at all. The
fault in this particular was aggravated by the great length of the
tug's line, and it is by no means certain that she was not guilty
of a distinct fault in failing to shorten the line as she came up
the bay. Had the steamship been apprised of the fact that the tug
was encumbered by a tow, there is no doubt that by putting her
wheel hard a-starboard, she could have avoided the bark; but,
seeing the tug alone, she was under no obligation to take further
precautions than such as were necessary to avoid her. Her action,
after she became aware of the fact that a tow was behind the tug,
was probably the most prudent that was left to her under the
circumstances. Whether she should put her wheel hard a-starboard,
and endeavor to pass the bark to port, or should port in order to
pass between the vessels, was, in the imminence of the collision,
largely a matter of discretion with her master, and she should not
be condemned for the result. The steamship had been brought into a
perilous position by the conduct of the tug, and ought not to be
criticized for the efforts she made to extricate herself. Her
porting, if an error at all, was one committed
in
extremis.
Fault is imputed to the bark for failure to cast off her line
promptly, and also for conflicting orders given to the wheel, but
we are not disposed to scan her actions in the excitement of the
moment too closely, although the court finds: (16) That, "if the
hawser had been cast off promptly, the steamer would have probably
gone safely between the tug and the bark." We do not find it
necessary to express an opinion in this particular.
This is one of those cases where a clear fault has been found on
the part of one of the vessels both by the district
Page 157 U. S. 71
and circuit courts, and the findings of fact are such as to
render it incumbent upon us to affirm their decree. As we said in
The City of New York, 147 U. S. 72,
147 U. S.
85:
"Where fault on the part of one vessel is established by
uncontradicted testimony and such fault is of itself sufficient to
account for the disaster, it is not enough for such vessel to raise
a doubt with regard to the management of the other vessel. There is
some presumption, at least, adverse to its claim, and any
reasonable doubt with regard to the propriety of the conduct of
such other vessel should be resolved in its favor."
The usual effort is made in this case to impeach the findings of
the circuit court, but libelant, at best, has only succeeded in
raising a doubt, which is not sufficient. If there be any evidence
to support the findings, as there undoubtedly is, they should not
be disturbed.
We are by no means insensible of the fact that a practical
injustice may have been done to the owners of the
Quickstep and her cargo in the litigation which is closed
by this decision by reason of the inability of the libelants to
obtain service in this suit upon the tug. It appears that a suit
was subsequently begun against the tug in the District of New
Jersey. This suit resulted in a decree of the district court
condemning her for the want of a proper lookout and for failing to
stop immediately after her first signal.
Kiernan v. The Leonard
Richards, 38 F. 767. No opinion was expressed as to the fault
of the steamship. On appeal to the circuit court, this decree was
reversed and the steamship held to have been wholly in fault for
not complying with the signals agreed upon and changing her signals
at an inopportune moment, the court construing the fog signals of
the steamship as signals to the tug to port. It was said by the
district judge that the bark was conceded to have been free from
fault. A like assumption was made by the circuit judge, who also
stated that if the people in charge of the
Holberg had
been brought in to testify, the case might have had a different
look. In that suit, the steamship was not represented by witnesses.
To this suit the tug was not a party, and was not represented by
counsel, though two of her crew appear to have been sworn
Page 157 U. S. 72
on behalf of the libelant. The result is that in the suit in
which the steamship was not represented, she was found wholly in
fault, and in the suit in which the tug was not represented, she is
found in fault. The litigation is an apt illustration of the maxim
les absents ont toujours tort.
We regret that the tug could not have been brought into the
case; but the district and circuit courts were bound by such
testimony as was introduced, and we are bound by the record and the
findings of the circuit court. Adjudging, as we do upon these
findings, that no fault can be imputed to the steamship, we have no
choice but to affirm the decree.
The decree of the circuit court is therefore
Affirmed.
