Chase v. . Belden

9 N.E. 852, 104 N.Y. 86, 5 N.Y. St. Rep. 545, 59 Sickels 86, 1887 N.Y. LEXIS 569

Opinion

Andrews, J.

The plaintiffs were nonsuited on the ground that the “Tosemite” at the time of the collision, carried the proper lights, and that no other negligence was imputable to her. This ruling was affirmed by the General Term.

The right of the defendant to maintain this judgment must, we think, turn upon the correctness of the ruling that the “ Tosemite ” was free from negligence. The counsel for the defendant while strenuously njaintaining that the “ Tosemite ” had the proper lights, also insists' that if the court below erred in this respect, nevertheless, the nonsuit should "be affirmed on the ground that the collision did not result from this omission of duty, but was solely attributable to the mismanagement of the “ Vanderbilt.” The question whether there was any negligence on the part of the “Vanderbilt,” which would bar a recovery, was not considered or decided on the trial. The nonsuit was put exclusively upon the absence of negligence on the part of the “ Tosemite,” and was affirmed on that ground by the General Term. If the ruling on the question of lights was erroneous, the case should, we think, be sent back for a new trial, on which the question as to the negligence of the “Vanderbilt” can be presented and considered.

The question whether the “Tosemite” at the time of the collision carried the proper lights, depends upon the construe tian of the rules for preventing collisions on water, prescribed in Tit. 48, Chap. 5 of the Revised Statutes of the United States, as applied to the “Tosemite” while navigating the Hudson river. The rules prescribing the lights to be carried by steam vessels, divide such vessels into three classes, first, “ ocean-going steamers, and steamers carrying sail,” embraced in rule three; second, “river steamers navigating waters flowing into the Gulf of Mexico, and their tributaries,” embraced in rule six; and third, “ all coasting steam vessels and steam vessels other than ferry boats and vessels otherwise expressly provided for, navigating the bays, lakes, rivers, or other inland waters of the United States, except those mentioned in rule six,” embraced in rule seven. In addition, rule four prescribes the lights to be carried by steam vessels when towing other vessels, which appears to be of general application. The “ Tosemite ” at the time of the collision had a green light on her starboard side, a red light, on her port side, and at the foremast head a white light, being the lights prescribed for “ ocean-going steamers and steamers carrying sail.” It is insisted on the part of the defendant that the “Tosemite” was “an ocean-going steamer and a steamer carrying sail,” and was bound to carry the lights prescribed in rule three, whether navigating the ocean or inland waters. The counsel for the plaintiffs, however, denies that the “Tosemite” was at the time of the collision, “an ocean-going steamer and a steamer carrying sail,” within the meaning of rule three, and insists that the words “ ocean-going steamer and a steamer carrying sail,” are descriptive only of steamers while traversing the ocean and when ón the high seas, and that every steamer, except those mentioned in rule six, while navigating inland waters, is bound to carry a “ central range of two white lights,” as prescribed in rule seven, whatever may be its general character as an ocean or inland vessel. We deem it unnecessary to decide this general question.

The “Tosemite” was, we think, in legal character and by proper nomenclature a “ coasting steam vessel,” and was, therefore, within the express terms of rule seven, bound to carry the central range lights prescribed in that rule. Even if this may not be absolutely true of the “ Tosemite ” in all situations, it was, nevertheless, true of her when navigating inland waters. If the “ Tosemite ” was a coasting vessel, it becomes quite unimportant to determine the true construction of the limiting clauses in rule seven. The rule in express words applies to “ all coasting steam vessels,” and plainly no vessels of that character are by the subsequent language excepted from the obligation to carry the central range lights. The legal character of a vessel is to be determined by reference to the statute and the ship’s papers. The “ Tosemite ” was a yacht “ used and employed exclusively as a pleasure vessel and designed as a model of naval architecture,” and is so described in her license. By section 2, chapter 141, of the United States statutes of 1848, the secretary of the treasury was authorized to cause yachts “ used and employed exclusively as pleasure vessels, and designed as models of naval architecture,” if entitled to be enrolled as American vessels, to be licensed “ to proceed from port to port of the United States without entering or clearing at the custom house.” This statute was amended by section 2, chapter 170 of the United Statute of 1870, by inserting after the words “ United States,” the words “ and by sea to foreign ports,” and the original statute as amended by the act of 1870, now stands as section 4214 of the Revised Statutes. It will be observed that under the statute of 1848 yachts licensed thereunder were exclusively coasting vessels. By the amendment they might have a double character, viz., that of coasting vessels, and vessels entitled to go upon the seas to foreign ports. The “ Tosemite” at the time of the collision, was enrolled at the port of New Tork, and her certificate of enrollment recites that it was given in conformity to title SO of the United States Revised Statutes entitled “ Regulations of Vessels in Domestic Commerce.” She was also licensed, and her license recites that it was granted in pursuance of chapter 2, title 48, entitled “ Regulations of Commerce and Navigation.” By reference to title 50 of the United States Revised Statutes, under which the “ Yosemite” was enrolled, it will he found that it relates exclusively to coasting and fishing vessels. The title next preceding, viz., title 49, is entitled “Regulations of Vessels in Foreign Commerce.” It thus appears that the “ Yosemite” was enrolled under the statute relating to coasting vessels, and her license was a coasting license, with the added privilege of going by sea to foreign ports. It does not seem to admit of reasonable doubt, having reference to the statute and to the enrollment and license, that the “Yosemite” while navigating the Hudson river, was navigating under her license in the character of a coasting vessel. This brought her within the operation of rule seven, and she was, therefore, in fault in not carrying the lights prescribed by that rule. If the collision had' happened on the high seas, another question would be presented. In the case of the “ Grlaucus,” which came before Lowell, J., in the United States District Court, Massachusetts, referred to in a note in Parsons on Shipping and Admiralty (vol. 1, p. 562), which arose under the act of 1866 (U. S. Stats, at Large, vol. 14, chap. 234, § 11), of which section 4233 of the Revised Statutes is in substance a re-enactment, it appeared that the “ Grlaucus,” a steamer bound from Hew York to Boston, came into collision with a sailing vessel on Long Island Sound. The steamer had, in addition to her two side lights, two white lights, one at her bow and one at her masthead. It was contended that she should have had only one wliite light. Lowell, J., speaking of the act of 1866 said; “Its language does not seem to be very happily chosen. It puts ocean steamers and steamers carrying sail in one class, with one sort of light, and coasting steamers in another, with a different sort, whereas most of the coasting steamers on the Atlantic coast are both ocean-going and carrying sail, so that it may sometimes be difficult for the persons concerned to know to which order they belong.” (See “The Continental,” 14 Wall. 345.) It is decisive there that the “ Yosemite ” at the time of the collision was navigating inland waters under a coasting license, and that by the explicit language of rule seven, she was bound to carry the central range lights.

The judgment should be reversed, and a new trial granted.

All concur.

Judgment reversed.