The James A. Walsh

194 F. 549, 1912 U.S. Dist. LEXIS 1734

• Court: District Court, S.D. New York
• Decided: January 10, 1912
• Status: Published

Opinion

HOLT, District Judge

(orally). [1] So far as the liability of the Walsh is concerned, this, in my opinion, is a clear case. The story given by her captain, as I understand him, seems to me almost increcii-bie. He says that when he backed out from Pier 22 he saw the Pollock headed 'down the Brooklyn shore. Then he came on, and did not see her again until she loomed up right in front of him and he ran into her. The evidence is clear- that the Pollock, with the barge in tow, backed out from Pier 16 in. clear daylight, and the captain must have seen that she was backing and turning, and that there was only one moment in her turning when she was headed down the Brooklyn shore. If he had been paying attention, he would have seen that the Pollock kept coming around until she got on her course coming across the river to New York. He also says he gave the Pollock a two-whistle signal. Why did he do that, if, as he says, he first saw the Pollock going down the Brooklyn shore, and the next time he saw her she loomed up before him ?

The fact is, when the two tugs got on their courses they were on crossing courses, and the Walsh was the burdened vessel, and bound to keep out of the way of the Pollock. If she did not see the Pollock until she ran into the barge, she was not keeping proper lookout. If the mast had anything to do with preventing the man at the wheel from seeing the Pollock, he should have had another man on lookout. But I think the mast would not prevent him from seeing the Pollock, if he was attending to his business. -This is a case where the burdened vessel was bound to leave the road clear for the privileged vessel and keep out of the way. After the collision the Walsh went off and did not stand by, although asked to do so. In every point of view, it seems to me the Walsh is in fault.

[2] So far as the Pollock is concerned, the ground upon which I am asked to hold her in fault is that, after having given danger signals, she did not back. The pilot rule says:

“Whenever the danger signal is given, the engines of both steamers should be stopped and backed until 'the headway of the steamers has been fullyj checked.”

But the statute does not say so. The statute (article 19, Inland Navigation Rules) says:

"When two steam vessels are crossing, so as to Involve risk of collision, the vessel which lias the other on her own. starboard side shall keep out of thtí way of the other. Where, by any of these rules, one of the two vessels is to keep out of the way, the other shall keep her course and speed.”

That is the general rule. But there is this prudential rule:

“In obeying and construing (hese rules, due regard shall be had to all dan-* gers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.”

The only 'circumstances under the statute which justify a violation of the rule that the privileged vessel shall keep her course and speed are when there are special circumstances which render departure from the rule necessary in order to avoid immediate danger. The pilot commissioners, in making this rule, probably had in view the case of two vessels meeting on crossing courses at an angle greater than a right angle. In that situation, if both back, they naturally get away from each other. But if they are on crossing courses, at an angle less than a right angle, by backing they may get into greater danger. I think this rule is invalid, and one which sometimes, if acted on, violates the statute.

Here we have a collision taking place in which the burdened vessel strikes the barge near her stern. Suppose, when the Pollock gave her danger signals, she had backed, she would have come into a position of greater danger, in my opinion. Therefore I do not think this rule has any application here. I think the pilot did just what he should have done. The special circumstances were not such as to justify anything different. I do not think the Pollock is guilty of fault in this case. Probably the,captain has been in error in some of his evidence, and I think his report is probably correct. I think he gave one whistle, held his course, and that the other vessel, like many of the vessels around the harbor, wanted to go ahead, and make the privileged vessel yield her fights, and he jammed ahead, and ran into the other vessel.

I think the Walsh is wholly in fault, and I direct a judgment to that effect.