Byrnes v. The Alexandria

1 F. Cas. 390, 1879 U.S. App. LEXIS 1691

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: July 3, 1879
• Status: Published

Opinion

WAITE, Circuit Justice.³

I have no doubt whatever of the liability of the steamship

for this collision. It happened in broad daylight, when there was no wind, and nothing to prevent her keeping out of the way, as it was her duty to do, if those in charge of her navigation had acted with ordinary prudence and foresight. The fact that the bark-entine was lying at anchor in such a place, with her sails set, was evideuce to the mind of a skilful navigator that she was waiting for the wind, and would be likely to get under way as soon as she could. The tide was running to the northward and westward, so as to carry the drift in that direction. The wind also, which met the steamer just before she came out of the Swash channel, was from the southwest Under these circumstances any one at all acquainted with navigation ought to have known that, when the barkentine did attempt to get under way, she would almost necessarily drift somewhat in the direction of the wind and tide before her sails could draw so as to take her ahead. When, therefore, the captain of the steamer, half a mile away, saw the barkentine first heaving ahead, then swinging her bow off to the northward, and finally drifting bodily somewhat in the same direction, he ought to have known she was getting under way, and governed himself accordingly. Had he, when he first discovered that the vessel was in motion, ported his wheel, stopped his engine, or even slack-, ened his speed, there probably would have been no collision. Instead of that, he star-boarded, and kept on at full speed, until it was impossible to keep the vessels from coming together. It needs no argument to show that this was the very worst thing that could have been done, if, as the captain of the steamer says, the barkentine was drifting rapidly to the northward and crossing his bows. In this, however, I think he is mistaken, and that the collision actually occurred by reason of an attempt on the part of the steamer, when she set her course originally, to pass too near. Undoubtedly the barkentine drifted somewhat to the northward, but it could not have been far. Between the time the captain first discovered her in motion and the collision was not to exceed three minutes. The steamer, going át ten knots an hour, only went half a mile. The drawing ahead which was first seen undoubtedly began with the heaving on the anchor. As soon as the hawser shortened, so as to weaken the hold of the anchor, the drift may have commenced under the combined action of the wind and tide, but the movement could not have been very great, for so long as the anchor was on the ground, while it might not keep the vessel in place, it would to a greater or less extent retard her-progress. That it was on the ground is shown by the fact that the hawser was cut when the steamer took the barkentine in tow. Under such circumstances the drifting of the vessel ought not to have embarrassed the steamer, and it is clear to my mind that the collision was caused alone by her unskilful and careless navigation. The hedge an-cho!:, though light, was sufficient to hold the barkentine in place with the wind and tide as they were. It was, therefore, not a fault to put that out instead of a heavier one. It was only when they commenced heaving the anchor in, that the drift commenced, and that ought to have been allowed for by the steamer when she made her calculations for passing. There was plenty of room on both sides, and a prudent navigator would have gone far enough away to have avoided all chances of danger by any movement of the vessel while getting under way.

No objection is made here to the amount of the decree in the district court. That, therefore, may be taken as the basis of the decree here, adding interest from the date of that decree only on the amount of the damages, exclusive of the interest allowed below. A decree may be prepared for the libelants.]¹

3 [This cause was heard by Mr. Chief Justice Waite, holding the circuit court for the-southern district of New York, pursuant to Rev. St. § 617, at the request of Mr. Justice Hunt, allotted to the second circuit.]

1 From records of the court.]