The Mauch Chunk

124 F. 671, 1903 U.S. Dist. LEXIS 161

Opinion

THOMAS, District Judge.

On the 5th day of February, 1900, at 10 a. m., the libelant’s tugboat R. J. Moran was injured by collision with the steam ferryboat Mauch Chunk in the vicinity of the latter’s slip, near South Ferry. The wind was fresh from the northwest, the tide strong flood, and the weather clear. The Mauch Chunk was about 162 feet in length, of the propeller type, and plied between Communipau and her slip, which was between the slips of the Ha.mil-' ton Avenue Ferry and Staten Island Ferry. As the Mauch Chunk came out of the North river, she rounded-to in the East river, about six or seven hundred feet out from her slip, for the purpose of entering the same, being at the time slightly below it. Below her upon her port hand, and nearer to the dock of the Barge Office, was the tug Garfield, bound into the East river, while a steam lighter was coming down in the vicinity, and passed the Mauch Chunk shortly before the accident. The Moran was lying outside of two other tugs off the face of Pier 4, headed downstream, bound for Bayonne, N. J. She started out at or shortly before the time the Mauch Chunk was making her turn from the North river for the purpose of entering her slip, and at the same time the Garfield was approaching in the neighborhood of the Barge Office. There were other vessels passing up and down and out in the general locality of the Battery near the time of the accident. Nevins, 29 years old, was the Moran’s mate and pilot, and was in the pilot house; but Cutler, her captain, was also there, and took immediate charge of the wheel. Nevins states that as they started out the Mauch Chunk was lying still six or seven hundred feet out from the Battery, and that several tows passed her — among others, the lighter Freeman, with a barge, going into the North river — and that the Moran, lapped on the barge, also followed, and that the signals were given as hereinafter stated. Cutler, the captain of the Moran, Chenier, the steward, whose evidence is useless, and Howe, captain of the Garfield, gave evidence in behalf of the Moran, and stated the order of signals as given below. In behalf of the Mauch Chunk, Burns, the pilot, and Van Wart, testified.

The following tables epitomize the evidence of the witnesses on both sides in the matter of signals, and show the signals in order of priority as stated by them:

Burns, Pilot Mauch Chunk.

Number. Whistles.

1. Moran ...... 2 to Mauch Chunk.

2. Mauch Chunk 2 “ Moran.

3. Moran ...... 1 “ Mauch Chunk.

4. Mauch Chunk 2 “ Moran.

5. Moran ...... 1 “ Mauch Chunk,

6. Mauch Chunk alarm.

Van Wart, Quartermaster Mauch Chunk.

Number. Whistles.

1. Moran ........................ 2

2. Mauch Chunk ................. 2

3. Moran ........................ 1

4. Mauch Chunk.................2

5. Moran ........................ 1

6. Mauch Chunk .................2 and alarm and reversed.

7. Moran ........................ 1 “ “ “ «

Cutler, Captain Moran.

Number. Whistles.

1. Moran .......................'. 2 to Garfield.

2. Garfield .......................2 “ Moran.

3. Moran ........................ 1 “ Mauch Chunk, no answer.

4. Moran ........................ 1 “ Mauch Chunk, “ “

5. Moran ........................ alarm.

6. Mauch Chunk................. “

Nevins, Pilot Moran.

Number. Whistles.

1. Moran ........................ 1 to Mauch Chunk, no answer.

2. Moran ........................ 2 “ Garfield.

3. Garfield ....................... 2 “ Moran.

4. Moran ........................ 1 “ Mauch Chunk.

5. Mauch Chunk ................. 1 “ Moran.

6. Moran ........................ alarm and reversed.

7. Mauch Chunk ................ “ “ “

Chenier, Steward of Moran.

Number. Whistles.

1. Moran ........................ 1

2. Moran ........................ 2

3. Garfield .......................2

4................................. danger signals.

Howe, Captain Garfield.

Number. Whistles.

1. Moran ........................ 2 to Garfield.

2. Garfield ....................... 2 “ Moran.

3. Moran ........................ 1 “ Mauch Chunk.

4. Moran ........................ 1 “ Mauch Chunk.

5. Mauch Chunk.................1 “ Moran (thinks Mauch Chunk was lying still outside a barge). ■

6. Moran ........................ alarm.

(He heard no alarm whistles from Mauch Chunk. An attempt has been made to state the order of signals as given by Howe, although his evidence was very imperfect as to the sequence of events, and he disagrees with all the principal witnesses. His whole evidence shows little orderly recollection of events.)

The foregoing tabulation justifies the following conclusions:

(1) Cutler, captain of the Moran, Howe, captain of the Garfield, Burns and Van Wart, of the Mauch Chunk, state that the first signal was two whistles from the Moran. This is better evidence than Nevins’ statement that the first signal was one whistle from the Moran to the Mauch Chunk.

(2) Cutler and Nevins, of the Moran, and Howe, of the Garfield, state that the next signal was two whistles from the Garfield. This is better evidence than that of Burns and Van Wart that they heard no signals from the Garfield. Hence the second event was two whistles from the Garfield.

(3) The third signal in order was two whistles from the Mauch Chunk, and this signal was given before the Moran gave the Mauch Chunk one whistle. This conclusion is reached for the following reasons: Burns and Van Wart state that the Mauch Chunk blew two whistles, although they did not hear the Garfield’s signal as above. Cutler heard no whistles from the Mauch Chunk. Hence his evidence is negative, and is disputed by the other witnesses. Howe is “almost sure” that he heard one from the Mauch Chunk next before the Moran’s alarm. This helps the conclusion that the Mauch Chunk gave some signal. Nevins states that he heard one whistle from the Mauch Chunk, but not in answer to the Moran’s first one whistle to the Mauch Chunk, which he incorrectly states as the first signal given, but in answer to the Moran’s second signal of one whistle. It is probable that as the first two signals, to wit, those interchanged between the Moran and Garfield, were port signals, the Mauch Chunk also gave two whistles, her signal being the third in order. It is probable, also, that the Mauch Chunk’s two whistles were given before the Moran’s first whistle. As already stated, Cutler did not hear any signal from the Mauch Chunk. Therefore he does not know whether the Mauch Chunk’s signal came before or after the Moran’s one whistle. Nevins says that the Moran’s single whistle was given twice (with the Moran’s and Garfield’s two whistles intervening) before the Mauch Chunk’s signal. This has been shown to be erroneous. So it is a question of believing Burns and Van Wart, or Nevins, for Howe’s testimony as to the order of signals is very indistinct and untrustworthy. Burns and Van Wart testify that the Mauch Chunk repeated her two whistles after the Moran gave her single whistle, and it may be that Nevins is mistaken as to the order, as he is shown to be as to when the Moran gave the first single whistle.

(4) The next signal was one whistle by the Moran. This is undoubted.

(5) The fifth signal was two whistles from the Mauch Chunk. The Mauch Chunk admits that she crossed the single whistle given by the Moran with two.

(6) The next whistle was one by the Moran. Burns and Van Wart both admit that the Moran blew a single whistle after the Mauch Chunk repeated her two whistles.

(7) After the above signals the Mauch Chunk and Moran each blew alarm whistles and reversed, each party claiming that his vessel did this before the other. In any case when the alarm whistles were blown the vessels were only about 25 feet apart.

The findings as above have established the order of signals as follows :

Number. Whistles.

1. Moran .............................................................. 2

2. Garfield ..................... 2

3. Mauch Chunk.................... 2

4. Moran ..........,.................................................... 1

5. Mauch Chunk ....................................................... 2

6. Moran .................................................,.............1

7. Alarms and reversals of engines by both vessels.

It is evident that.the Moran and Mauch Chunk were, during the above events, moving ahead and towards each other, with perhaps some momentary rest of the Mauch Chunk’s engines. Cutler states that the Mauch Chunk was always moving. If so, 'she would not give one whistle. Nevins states that the Mauch Chunk was lying still when the first whistle was given by the Moran (which he erroneously makes the initial signal); that she was lying still when the Garfield answered the Moran’s two whistles, and moving when the Mauch Chunk answered the Moran’s two single whistles. Howe had no reliable information about the Mauch Chunk’s motion or rest. It is clear enough that the Mauch Chunk kept coming in, and it is improbable that she kept in forward motion, sounding a signal that should keep her at rest, and compel her to let the Moran cross her bows. But the Moran, almost to the instant of the collision, was moving across the Mauch Chunk’s bow, and, if so, she would not give the Mauch Chunk a signal that indicated her intention to go under the Mauch Chunk’s stern. The Mauch Chunk admits that after the Moran’s first signal all her signals were starboard signals, and it has been found that the Moran’s first signal was given to the Garfield. But why did these vessels, each sounding contrary signals, after the first two, keep moving towards each other within the narrow space? The Garfield, before the collision, at least, was nearer the piers, and tended to interrupt both the other vessels; the piers were near by on the Moran’s starboard hand; the Mauch Chunk was aiming to pass between the Moran and the Garfield, and the Moran to pass between the Garfield and Mauch Chunk; and all the vessels, except when the Garfield stopped, were approaching each other, with a strong flood tide carrying the Mauch Chunk up and retarding the Moran, while the fresh northwest wind tended to set the latter out. And yet the Mauch Chunk and Moran kept approaching each other, sounding contrary signals, and neither reversed or went back until the vessels were beyond escape of collision. It may be conjectured that the Garfield and Mauch Chunk first exchanged single whistles, although the navigators of neither vessel remembered any interchange. It is probable that the Garfield and the Moran exchanged two whistles, that the Mauch Chunk appropriated the Moran’s two whistles to the Garfield and answered, and that the Moran then gave a single whistle, which the Mauch Chunk crossed, whereupon the Moran repeated her single whistle, and meanwhile both the Moran and Mauch Chunk were coming towards each other with unabated speed. The whole transaction shows gross negligence on the part of both vessels in a dangerous locality. The Mauch Chunk should have known that the Moran would give the Garfield two whistles, and should have appreciated that the signals might not be for her. The captain of the Moran was not alert enough to catch any signals from the Mauch Chunk, but even this did not stop him. So the Mauch Chunk went forwar.d, knowing, or bound to know, of the interchange of signals by the Moran and Garfield, knowing that her own signal was crossed, knowing that she finally crossed the Moran’s single whistle; and the Moran went forward, knowing, as her master testified, that her signals were not answered, but in fact twice crossing the Mauch Chunk’s signals. In short, the vessels were trying, with repeated cross-signals, to pass each other’s bow.

The damages will be divided.