Gloucester Ferry Co. v. The Rescue

51 F. 927, 1892 U.S. Dist. LEXIS 72

• Court: District Court, E.D. Pennsylvania
• Decided: August 6, 1892
• Status: Published

Opinion

Butler, District Judge.

On August 12, 1890, when the ferryboat Peerless, on her way from Gloucester to South street wharf, Philadelphia, had reached a point opposite, and near Windmill island, in the river Delaware, she saw the tug Rescue alongside the end of Knight’s wharf,— some distance below South street. The tug had beep lying at the upper side of this wharf, with her stem to the river, After signaling her purpose to move, she had backed out,—her stern swinging up the river under .the influence of a flood tide,—and had started down, intending to turn eastrvard and run up. • When she reached the end of the Avharf, (where seen,) the Peerless signaled her to port and keep westAyard. She immediately responded and ported; but having little steerageAvay on, the tide SAvung her head eastward, and she swerved off in that direction, passing a short distance from the wharf. The Peerless, instead of keeping eastward under a port Avheel, as her duty required, after signaling, starboarded, and ran directly towards the Rescue, (under expectation, doubtless, that the latter would pass doAAn the river.) When-near together both vessels reversed their engines, but too late to escape collision, and they came together, virtually head on.

The testimony, as usual in such cases, is irreconcilable. Some of it (from-ignorance of the witnesses, or other cause) seems incredible. I find the facts to lpe, however, as above stated.

The Peerless was, in my judgment, clearly in,fault. She should have heard the Rescue’s first signal, and observed her movements from the start. Tayo at least of those on board her did. This failure may not be very important, except as it tends to show general, carelessness. And yet, had she observed these movements she'should have knoAvn that the vessel’s steerageway was insufficient for. her handy control, or speedy movement. The act of putting her Avheel to starboard, instead of port,'running directly torvards the Rescue, and continuing this course until almost upon her, was clear (if not gross) negligence. I can see no excuse for it. She had no occasion to cross so low down. She could as well have reached South street by keeping off eastAvard, and going higher. A change of wheel Avhen even a short distance back Avould have avmided the accident. As before suggested, she doubtless expected the Rescue to pass doAvn, westward. She should have seen hoAvever, in time to change her Avheel and escape the danger, that the Rescue was swinging eastAvard; and yet she kept directly on Avith no attempt to change until the collision was inevitable.

The only doubt I hav^e is whether the Rescue could have done more than she did to avoid the accident. I am satisfied she ported when signaled to do so. This seems to be put beyond doubt, not only by the testimony of those on board, but also by the fact that her head did not swing further up. But. whether with greater exertion,—the application of more steam,—she could not have gotten further down before the Peerless reached the point where she lay; and whether she reversed as soon as she should, I have some doubt. The bqrden of proof, hoAvever, is on the libelant; and under the circumstances, the doubt is not sufficient to, justify a finding in her favor. Her oavu fault is sufficient to account for the accident; and to warrant the court in relievdng her of any part of the consequences the evidence of fault in the respondent should be clear. The libel must he dismissed, and a decree may be prepared accordingly.