The Benjamin Franklin

127 F. 457, 1903 U.S. Dist. LEXIS 25

• Court: District Court, S.D. New York
• Decided: July 1, 1903
• Status: Published

Opinion

HOLT, District Judge

(after stating the facts as above). I think that in this case the Franklin was clearly in fault. If there was such a fog that she could not see the lights on the Mead, she was in fault for running at a very high rate of speed in a fog. If, as I think was the truth, the weather was simply hazy, and the lights on the Mead and on her tow could be seen, she was in fault for not seeing them. Her navigation was reckless. I think that the Mead was in fault for being on the east side of the river with her tow, in violation of-rule 25 (Act June 7, 1897, c. 4, 30 Stat. 96 [U. S. Comp. St. 1901, p. 2883]). See cases cited in the opinion in the case of The Alfred W. Booth and The Bee (recently decided) 127 Fed. 453. I cannot see that the Rose was in fault. It is claimed that her light was not placed in the right position on the boat. She .had a light, and I think that it was in a sufficiently correct position. Moreover, the men navigating the Franklin either could not or did not see any lights on the Mead. The probability, therefore, is that they could not or would not have seen any light on the Rose, wherever placed. -

My conclusion is that the steamboat Franklin and’ the steam tug Mead should each be held liable for half the damage to the barge Rose, with costs; that the Franklin should recover from the Mead half the damages sustained by the steamboat Franklin by reason of the collision, with costs; and that the libel against the barge Rose should be dismissed, with costs. The usual reference to fix the amount of damage will be ordered.

Memorandum on Rehearing.

(January 8, 1904.)

This is a rehearing of the above case under an order permitting the "case to be reopened and new evidence taken. Some misunderstanding appears to have arisen in- this case as to the meaning of the term “channel.” The evidence shows that the portion of the Hudson river near the west bank opposite the point where this collision occurred is quite shallow, and that the safe channel for ordinarily large river boats at that point extends from the eastern 'shore about two-thirds of the way - across the river. That part of a river which is a channel for vessels of light draft may not constitute a channel for vessels of deep ■draft; 'But substantially the eastern two-tliirds of the river at that .'pointy .may be'regarded as the channel. The western half of the river :from' opposite 'New York up to Yonkers is anchorage ground, and ' therefore the eastern half of the river is the part of the channel which 'Can'always'be navigated without risk. The evidence shows,-in substance, that a large number of captáins and pilots on the'river'pay no attention to the rule regulating navigation in narrow channels, and have not supposed that it applied. I think' that the channel af.tlie Hudson river is a narrow channel, under the .authorities, and that the question simply is whether, for any reason, it is so unsafe and impracticable under all circumstances to comply with the rule at the point where this collision occurred as to justify its being uniformly disregarded. It is claimed that vessels coming down the river can more safely navigate near the eastern shore, particularly in foggy weather; that that shore is better lighted; that the sounds from the shore are more distinct; and that therefore pilots can tell better where they are by keeping near the eastern shore. The western half of the river up to Yonkers is anchorage ground, and a good many vessels anchor there, particitlarly in the lower portion opposite the city, and it is claimed that it is therefore dangerous to navigate near that half of the river. But the evidence does not satisfy me that it is so universally unsafe and impracticable to comply with the rule in that part of the river that it can be wholly disregarded. Of course, special circumstances might easily occur to warrant its being disregarded, and for that the rule itself provides; but that it may properly be entirely disregarded seems to me unwarranted by the evidence. If it is true that in foggy weather it is easier to navigate from point to point on the eastern shore, it is also true that the clanger of collision in foggy weather is much increased. It appears by the evidence that there is no real difficulty in running a boat by compass courses on the Hudson river without seeing the banks. The courses are well known, and many boats are habitually run in that way. I think the enforcement of the rule on the Hudson river will tend to prevent collisions; and, in any case, Congress, having power to legislate on the subject, has prescribed such a rule by statute, and, of course, if it is applicable it must be enforced.

Several other points which were considered on the original hearing have been to some extent reargued by counsel. The case was not reopened for that purpose, but I have considered them, and, in my opinion, none of them calls for any different conclusion from that previously reached.

My conclusion is that the decision previously rendered in this case should remain unchanged, notwithstanding the new evidence taken on the rehearing.