The Guyandotte

92 F. 931, 35 C.C.A. 91, 1899 U.S. App. LEXIS 2209

• Court: Court of Appeals for the Second Circuit
• Decided: March 1, 1899
• Docket: No. 59
• Status: Published

Opinion

LA.COM EG. Circuit Judge.

The Delaware was on her way from the foot of Kivington street, East river, to Harsimus cove, N. J., North, river. Her navigation was temporarily in charge of a deckhand, McGee, the master having gone below for a few minutes. She was heading for the upper rack of the Oommunipaw ferry, when McGee first saw the Guyandotte. The steamship left her pier a.t Beach street, and came down in about the middle of the North river. While passiug down she encountered the Brooklyn Annex ferryboat, outward hound from the Pennsylvania slip, ported to pass under the ferryboat’s stern, and then starboarded to get back on her course. The navigator of the tug saw the Guyandotte, on his starboard hand, when she was opposite Courtlandt Street ferry, as he estimates about one-half to three-quarters of a mile distant. He saw the Annex boat, saw the Guyandotte sheer to starboard, saw her pass under the stern of the ferryboat, and then swing to port again, till she got back to her original course, when she stopped and steadied, headed down the river about for the forward end of the float. Then, and not till then, as he says, the Guyandotte blew one whistle, he answered with one whistle, and rang-two bells, and a jingle to go full speed astern. By this exchange of signals it was agreed that the privileged vessel (the Guyan-dotte) should pass across the bows of the burdened vessel (the Delaware). At the time the first signal was blown the vessels were 300 yards or more apart. The navigators of both vessels and the counsel for both claimants all iusist that had both vessels thereafter navigated in conformity to agreement there would have been no collision, and, in our opinion, the evidence entirely supports their conclusions. The district judge was inclined to doubt this proposition, apparently for the reason that; as it turned out, “the float nearly escaped by going ahead”; but he seems to have overlooked the fact that for a sufficient time before collision to reduce her speed materially below six knots the Guyandotte was reversing at full speed. Inasmuch, therefore, as there was time and room for both vessels to act in accordance • with the agreement, and thus avoid collision, the risk of collision, assuming that it theretofore existed, was terminated by the agreement, and it will be wholly unnecessary to discuss the prior navigation, or to determine whether in their earlier maneuvers either vessel had committed any fault. The real question in the case is whether either or both vessels navigated contrary to the agreement, and thus brought about the collision. Indisputably the Delaware did so navigate. As has been seen, McGee, who was at wheel, saw the Guyandotte swing to go under the stern of the Annex boat, saw her swing back to port, and says that she had stopped her swing to port, and had “steadied up, and headed down the river,” before she gave the single whistle. He says that he had stopped his engines while the ferryboat was passing between them. There is some dispute as to whether he stopped thus early, but the precise time is immaterial, since, immediately upon replying with the single blast, he reversed at full speed. He was evidently alert, prudent, and careful, and had he been left to complete, undisturbed, the navigation he began, there would have been no collision, the headway of the Delaware, angling up across an ebb tide, would have been checked, if not entirely overcome, and the Guyandotte could have passed safely across her bows. Most unfortunately for the Delaware, however, her master’s temporary business below had terminated. He heard the single whistle of the Delaware; also the two bells to back. He thereupon hurried into the pilot house, and “gave bells to stop and go ahead and hook her up at full speed.” His reason for so doing, as he says, is that he found the bow of the float had already passed across the line of the Guyandotte’s course, so that she was heading for the side of the float about amidships. The vessels were then, as he says, about two float lengths (370 feet) apart. So soon after reversal was his contradictory order given that McGee’s effort to conform the Delaware's navigation to her agreement was not continued long enough to have any appreciable effect. - Entirely uninformed as to prior movements of the vessels, the master was in no position to judge whether the Guyandotte was continuing to swing to port, — McGee, who was in a position to know, says she was not, — and, ignorant of the agreement between them (he had not heard the Guyandotte’» whistle), his interference with McGee’s arrangements was most ill-advised. The result was that, perceiving the Delaware was keeping on her original course with no apparent slackening of speed, the master of the Guyandotte ordered her engines stopped and reversed,- — a movement which was continued an appreciable time (the master and engineer say two minutes, probably an over-estimate), and. so reduced her headway that she struck the float some 25 to 30 feet from its after end. That the Delaware failed to navigate conformably to agreement is undisputed, and that such failure brought about the collision seems to be entirely clear upon the proofs.

The charge made by the Delaware against the Guyandotte is that she did not hold her course after the exchange of signals, but continued swinging to port, by reason, as is suggested, of her endeavor to return to her original course after the swinging to the westward to pass the Annex boat. The witnesses from the Guyandotte testify that they ported upon the exchange of signals, but, even if we entirely disregard their testimony, we can find no support for the contention that her starboard swing continued after the exchange of signals, in view of the express, distinct, and reiterated statements of McGee, acting’ pilot of the Delaware, that the Guyandotte had steadied before that time. We have, then, two vessels crossing on courses where the starboard hand rule applies, a proposition by the privileged vessel to cross the other’s hows, there being ample room and time for the execution of such maneuver if both co-operate, an acceptance of such proposition, an admitted failure by the burdened vessel to conform her navigation to agreement, with no sufficient proof of a like failure by the other, and a consequent collision. Under such circumstances, the burdened vessel is to be held solely in fault.

The decree of the district court is reversed, and cause remanded, with instructions to decree for full damages to libelant against the Delaware, and costs of this court to the Guyandotte against the Delaware.