Elcoate v. The Plymothian

63 F. 631, 1894 U.S. Dist. LEXIS 146

• Court: District Court, E.D. Virginia
• Decided: September 18, 1894
• Status: Published

Opinion

HUGHES, District Judge

(after stating the facts). It is obvious

from the foregoing statement that the question in the case under consideration is whether or not it is governed by the great rule of the road, “Keep to the right.” That rule is embodied as article 21 in the “Revised International Rules and Regulations for Preventing Collisions at Sea.” adopted and made the law of the United States by the act of congress of March 3, 1885 (23 Stat. 438 et seq.). The act declares that they shall constitute the rules for the navigation of vessels “upon the high seas and in all coast, waters of the United states, except such as are otherwise provided for.” The exceptions alluded to are defined by the act itself, in the section declaring that “nothing in these rules shall interfere with the operation of a special rule, duly made by local authority, relative* to tie navigation of any harbor, river, or inland navigation.” The rule only is excepted, not The coast water itself. The act of congress prescribing these rules is a law, of which all the world must take cognizance. Special rules of local ordination are not laws, but: rules only, and, in order to be binding, must be brought home to the knowledge of navigators, and proved affirmatively in the courts. I know, however, of no provision of such local rules, so far as they affect our eastern waters navigable from the ocean, which conflicts with the international rules adopted by congress, and prevailing, by general adoption, the world over. These general rules of the world at large, adopted and made laws of the United States by congress, are in force in the oceans and seas off our coasts, and in all the coast waters of the country; that is to say, in the rivers, bays, and roadsteads opening ipto the ocean, and “allied to ocean navigation, from being used and necessarily used by all ocean-bound vessels” and vessels coming in from the outer waters. These rules would be paralyzed if they ceased to operate in favor .of ocean ships as soon as they passed within lines drawn between points of land projecting into the ocean. ■ That they are intended to be in force and operation within such lines is proved by their very terms. Article 21, which has been mentioned, would be a meaningless nullity under a contrary contention. Its language is: “In narrow channels every steamer shall, when it is safe and practicable, keep to that side of the fairway, or mid channel, which lies on the starboard of such ship.” Except in the instances of two of three great straits, in different parts of the world, —so few in number and each so wide that no rulé is necessary in regard to them,—no such1 narrow channels as article 21 contemplates are to be found beyond lines drawn between the great fauces terrae of our seaboard. The contention that this important article applies only to the outer seas would exclude Chesapeake bay, Hampton Iioads, and Elizabeth river from the category of “coast waters.” That bay has been called the “Mediterranean of America,” from the vast and varied commerce that floats upon it, carried largely in ships of the ocean. Hampton Roads, from the depth of its waters, its spacious area, and its land-locked conditions of safety, is a favorite resort "in storms for all vessels that navigate our Atlantic seaboard. Elizabeth river carries a channel of 25 feet in depth, and from 250 to 500 yards in width, all the way from Hampton Roads to the national navy yard at Gosport. It would be imposing hard lines upon foreign steamers and sailing ships coming up to Norfolk, with and for heavy cargoes, for the courts to repeal article 21 as to a river traversed so constantly by sea.-going* ships of the largest size and capacity as the Elizabeth river is,— an article known to all navigators from every part of the earth,— and to dwarf the river into a local harbor, subject to the provincial domination of a town 'council, and to the crude regulations of ever changing town officials. It may not be practicable to define with precision the meaning of the phrase “ocean waters;” but, so. far as this court is concerned, I hold that it embraces all waters opening directly or indirectly into the ocean, and navigable by ships, foreign or domestic, coming in from the ocean, of draft as great as is drawn by the larger ships which traverse the open seas. I hold that all tide waters, navigable from the ocean, with navigable depth for ocean craft, are “coast waters,” in the meaning of article 21. The Elizabeth river, between Norfolk and Hampton Roads, is one of the ocean waters, and the international rules of navigation are therefore in full force and operation in that river.

Elizabeth river is not embraced within the meaning of the clause of the act of congress providing that “a special rule duly made by local authority relative to the navigation of any harbor” shall not be interfered with by the international rules of navigation. If the river is a harbor at all, it is only as a part of the harbor of Nor-folk. But it is not within the territorial limits of Norfolk, and is not subject to any municipal regulation in force within that corporation. It is competent for Norfolk to ordain rules of naiigation for her own harbor; but these rules lose their authority when the territorial boundaries of the city, either on land or water, are passed. But, even if this were not so, it has not beam shown that any rule of navigation ordained by Norfolk for the government of shipping within her own harbor is in eontUct; with article 21, or with any other law of navigation embodied in the international rules. If so, if there be no municipal rule of navigation in force in Norfolk, harbor with which article 21 or any other international rule interferes, then Norfolk harbor is itself subject to those international rules, and is in the category of “coast waters” contemplated by the maritime act of congress of March 8, 1885. Those rules are in force in Elizabeth river, independently of any rules ordained by Norfolk; and they are in force in Norfolk harbor itself, as long as they shall not interfere with any rule of navigation which may be enacted by the local municipality. It is fortunate for Norfolk that this is so; it would be a subject of serious public regret if it were not so.

International article 21 was the law of tin; road on the occasion when the Piymothian, off buoy !), and the Victory, abreast of Graney Island light;, one mile and an eighth apart, began at the same time to approach each other along the narrow channel of Elizabeth river, between those two points. The Piymothian obeyed article 21; the Victory disregarded it. The collision, -which happened in direct consequence of the Victory’s disloyalty to the rule, was caused by the Victory, and through her fault alone. The fact that she had had a schooner close under her starboard side shortly before the collision did not excuse, but condemned, her. The fact that this and two other schooners were moving on her starboard on the eastern side of the channel were three additional reasons why she should have come up on the western side from Graney Island. These three insignificant vessels were teaching her a lesson, which she rejected. International article 15 'did not apply in this case. At a distance of a mile apart, these two steamers, in full sight of the channel between them, by clear daylight, were not approaching each other “in such a manner as to involve risk of collision.” The liability of the Victory for this collision does not depend upon the question whether the statement of facts drawn up by the court, and prefixed to this opinion, is strictly and in every respect in conformity with the weight of evidence taken in this cause. If there were no other evidence in the record but that given by the master and crew of the Victory, that ship would he shown to be Hable, filie had no right, seeing the Piymothian coming up the narrow channel, to persist in running on the eastern side of it. The thoroughly disproved testimony given by her master and the deck witnesses of her crew, intended to show that she was driven to the extreme eastern side of the channel by other steamers and by sailing vessels, has no other value in the case than to show that these witnesses felt the pinch ■of article 21, and made desperate efforts to excuse the obstinate and fatuous perseverance of her navigators in keeping on the eastern", and to them, as they well knew, the contraband, side of the channel. The Victory is liable for the collision; and I will decree in all respects to that effect.

It remains for me to deal with a few of the special aspects of the case. On the question of lookouts, I have been always exacting, and I think both steamers were at fault in not having had each a special lookout on duty; but in neither case does it appear that the absence of such a lookout contributed to this collision. Each ship was navigated by a licensed pilot, with her master at his side on the main bridge acting as lookout. It was in the daytime, and the way was as visible to the officers on the bridge as it could have been to a lookout at the stem. The master and pilot were in each case intent upon the duty in hand, and their orders to the helmsman and to the engine room would hardly have differed from those actually given if a lookout had been calling out to them what they both clearly saw and knew. But it is only with reference to the Pymothian that the question of lookout is of any importance. The contention of counsel for the cargo that the absence of a lookout on that steamer contributed to' the collision is not supported by the evidence in the case. Inasmuch as this evidence shows that the officers on the bridge did not hear the first cross signals of the Victory, this counsel contends that if there had been a lookout forward, and the pilot Henley and the master Mardon had been notified of this cross signal, there would have been time for the Plvmothian, by hard starboarding, to have passed the Victory on her starboard side. But the proof is that the Victory blew her first cross signal of two whistles as far off as halfway between buoy 7 and Oraney Island light, or more than 1,000 yards from the Plymothian, before any stress of circumstances arose to require of her a violation of the rule of navigation which she was faithfully adhering to. It was not competent for the Victory, at that distance, to require from the Plymothian a violation of article 21, unless there was some cause forcing her to do- so. That there was no such cause is shown by the evidence, and was virtually confessed by the Victory herself when she failed to follow up her cross signal by additional three sharp alarm whistles, giving notice of such a cause. Failing in this, the Pymothian was not. at a distance of 1,000 yards, and running against a flood tide at the rate of only 4 miles, either under obligation or at liberty to disregard a cardinal rule of navigation at the mere cross signal of the Victory. Rlie would not and should not have done so even if a lookout properly posted in her bows had notified her navigators of the cross signal. Her officers on the bridge would and should have pursued precisely the course if they had known of the first cross signal which they did pursue on not hearing it; and the absence of a lookout contributed naught towards the collision. I therefore consider that the contention of the counsel for the cargo on this point must be overruled.

Although it is wholly unnecessary in this decision to do so, I will notice some references of counsel lor the Victory to the decision of this court in the case of The Laurence (rendered in August, 1892), and affirmed on appeal by the United States circuit court of appeals for the fourth circuit, at its February term, 1893. 54 Fed. 542. Counsel for the Victory contends that in that case this court held that a steamer coming up in the channel of Elizabeth river from Craney Island to Norfolk was at liberty to take either the western or eastern side of the channel at pleasure. The decision was a very different one, and was rendered in a case having-no relation to the question involved in the present litigation. In that case the steamer New York, plying twice a day between Norfolk and Cape Charles City, had, in a foggy morning, while moving at an unlawful speed in a fog, run into the barge: Lawrence, which was a very large vessel, loaded with coal, and lying at anchor on the western side of the channel of Elizabeth river, halfway between buoy 7 and Craney Island light. It was shown in evidence that the* channel where the Lawrence lay was 450 yards wide; that the Lawrence was anchored on its western side as near to the bank as could he to allow of her swinging clear of it; and that at least half of the 225 feet west of mid-channel was clear. The Lawrence was swinging, when run into, due north on an ebb tide, and was not only on the western side of mid-channel, hut was well off on the western side of that: 225 yards of western channel. The steamer New York came up from Craney Island close upon the western side of the channel, in a thick fog-, and struck the Lawrence on her starboard quarter, although there was abundant room between the Lawrence and mid-channel for the New York to pass to the port or east side of her. Nothing is said in fixe opinion of the court to indicate that the New York, in passing on the port side of the Lawrence, would have passed to the east of mid-channel. Between the Lawrence and mid-channel there was clear space of more than 109 yards, and the water east of mid-channel xvas not in the case at all. The evidence showed that there was not room between the Lawrence and the western haul; of the channel for the New York to pass; and the court held that the New York was in fault in not passing on the eastern side of the barge, where there1 was abundant room. The court used the following language in its decision:

“All tlie testimony shows, and the pleadings admit, that they [meaning the Lawrence and a companion barge that was lashed to her port side] were Iheu on tin1 western side of: the channel. The evidence shows, moreover, that the New York struck, from tlw1 west, the barge which was the western one of the two. Certainly, there was room in a channel, half ot it as wide as 225 yards, for a steamer to pass vessels lying in the oilier half of the channel, which was another 225 yards in width.”

That case has therefore.no analogy with the one at bar.

Equally erroneous is the contention of counsel for the Victory that in that same ease of The Lawrence-New York (his court held that the Elizabeth river, north of buoy 9, was a part of the harbor of Norfolk, and subject to her jurisdiction in respect to a harbor master. The facts were that by a stretch of authority, growing out of a public necessity, Norfolk had' appointed a nominal harbor master at Lambert’s Point, who assumed and exercised the authority of designating places of anchorage for the great number oí vessels constantly coming in there for the Pocáhontas coal. This “harbor master,” so called, had for some time been in the habit of anchoring these vessels on the western side of the channel near to red buoy 22, and up and down on that side as far as necessity required. He so acted by general sufferance and from public necessity, and not by conceded authority. This quasi official action of his Vas known to all the masters of steamers which navigated that channel, all of whom acquiesced in and none of whom resisted his authority. Contrary to this self-adopted rule of acquiescence, the master of the New York, in the suit of The Lawrence, among other things, contended that the Lawrence, when she was struck by the New York, was unlawfully where she was, and that she had been illegally anchored there by a person who was not a harbor master, in the eye of the law. This court held that she had a right to be where she was when she was struck by the New York. Its language was as follows:

“In a technical point of view, the authority exercised [by the acting harbor master] is probably questionable. But the public interests required that there should be some authority to control and regulate the anchoring of those loaded'vessels; and, until the law provides some other means of regulating this important' business, custom and general acquiescence must be held competent temporarily to supply the omission of the law. These barges were passive in the matter of being placed in the anchorage in which they lay. They had not gone there of their own volition, in a spirit of caprice and indifference to consequences. The presumption is that, objectionable as the practice is of placing vessels along that channel in such numbers as the evidence shows, yet the placing of these particular barges was as judicious as the evil practice admitted of; and I do not feel that it would be competent or just for this court to undertake a reform of this evil by imposing penalties. The reform needed is a subject for municipal legislation; and it is hardly admissible for the court to assume the role of legislation by means of penal decrees and judgments.”

There is nothing in this decision that gives countenance to the proposition that the channel of Elizabeth river, between Lambert’s Point and Craney Island, is part of the harbor of Norfolk, subject to her jurisdiction, and excepted from the operation of article 21 of the international rules of navigation.

As to the question whether the clause contained in the bills of lading of many British ships, and sanctioned by British law, exempting the ship from liability for damages to her cargo, even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariner, or other servants of the shipowner, and some of them containing a clause providing that the contract shall be governed by the laws of the flag of the vessel carrying the goods, it has been settled in this country that such clauses are contrary to public policy, and therefore null. I should feel constrained to rule accordingly if the question could arise in the case at bar.