The Nassau

35 F.2d 709, 1929 U.S. App. LEXIS 3055

• Court: Court of Appeals for the Second Circuit
• Decided: July 22, 1929
• Docket: Nos. 206-208
• Status: Published

Opinions

SWAN, Circuit Judge

(after stating the facts as above). Mueh of the argument has revolved about a dispute as to a custom that vessels bound west on the flood tide go down on the Astoria side of the channel and pass east-bound vessels at Hallett’s Point starboard to starboard. Sueh a custom has received recognition in this court. The Transfer No. 21, 248 P. 459; The C. Gallagher, 262 P. 97. The dispute is whether it applies at so late a stage of the flood tide as existed in the instant ease. The Terje’s evidence indicated that the tide was negligible, and that the custom ceases when the velocity of the flood tide is sufficiently reduced to render safe a return to the usual narrow channel rule. The Nassau, on the contrary, took the position, and supported it by expert opinion, that the custom continues up to the very moment of slack water. Her witnesses testified to a tide of at least a knot and a half. The tide was running ebb past the dredge at 12:55, and the usual period of slack water at Hell Gate is testified to be about three minjites. It seems incredible that, six minutes before slack water, the tide could have had any sueh strength as the Nassau’s witnesses claimed for it, but we do not find it necessary to decide this disputed question of fact, nor to determine the precise conditions under which the custom prevails. If a port to port passage was proper the Terje should have held to her own side of the channel.

The evidence of disinterested witnesses, and particularly of Reilly, to whose testimony the trial court gave especial credence, shows that she did not do so. His diagram, drawn to scale, placed her about 250 feet from the Astoria shore. While his recollection on the stand was more favorable to her, he held to his original estimate when the discrepancy was called to his attention. Moreover, had she not been considerably on the port side of the channel when she sighted the Nassau, her hard-aport helm, resulting in a swing of two to three points, would certainly have carried her further over on the starboard side of the channel than she was at the moment of collision. There is dispute as to just where the collision occurred, but Reilly’s diagram, which the Terje accepts, puts it about 40 feet beyond the center line. Hence, if the narrow channel rule applied, the Terje< came down on the wrong side of the channel, and this fault is not shown to have had no causal relation to the disaster merely by the fact that she got back to the right side at the moment of collision; If, however, the custom applied at that stage of the tide, the Terje was obliged to give the east-bound vessel the right of way and pass to starboard. Hence on neither hypothesis can her navigation be justified.

Moreover, she was found at fault in failing to blow a bend whistle. If the Terje sounded no bend signal below the railroad bridge, she violated rule 5 of article 18 of the Inland Rules, for the bridge is more than half a mile distant from- Hallett’s Point. She asks us to reverse this finding of the lower court. Her master, chief officer, second officer, and lookout testified by deposition that such a signal was blown, without very definitely fixing her location at the time. Pilot Horton, her only witness examined in court, testified on direet that he. blew the bend whistle about under Hell Gate bridge, and on cross-examination marked the place on the chart as almost half way between the bridge and Negro Point.' On the other hand, Capt. Holmes, of the tug volunteer, which met the Terje a little below Negro Point, and Capt. Parkinson, of the steamer Riverside, which closely followed the Terje down the river, testified positively that the Terje blew no signals whatever. Reilly and Panzenhagen, who were also independent witnesses, testified that they heard no bend signal from the Terje. On such a record we cannot say that the finding is unsupported by evidence. The faults with which the court charged her are, in our opinion, substantiated, and she is not entitled to exoneration from liability.

There remains the question whether the Nassau was rightly exonerated. The trial court made no specific findings regarding her navigation, other than that she properly sounded a bend signal, but says generally that she exercised every possible precaution. With this conclusion we cannot agree, after a careful reading of the record. Her master says that he shaped her course with reference to the custom which requires a starboard passing on the flood tide. Nevertheless she passed,the Point within 300 feet of the shore, and claims to have hugged the eastern shore as elosely as she safely could with due regard to her draft. If, she was relying on the custom, she should have kept to the port side of the channel, which would have enabled the vessels to see each other sooner; if, on the other hand, the custom did not apply at that stage of the tide, and a port to port passage was proper, she should have rounded the Point more elosely than she did. Her course evidently was shaped to carry her into the port side of the channel, for, even after reversing, when her master saw the Terje," she could not avoid getting across the center line. She doubtless was relying on the channel being clear, because she had heard no reply to her bend signal; but this did not justify disregarding the rule of the road, and this she did, whether the custom was or was not applicable to the existing stage of the tide.

Furthermore, we are not convinced that her navigation was free from fault after the Terje was, or should have been, discovered. All but one of the Nassau’s crew testify that the Terje was distant only a length or two of the barge when she was sighted. If true, she should have been sighted earlier. Bertram, the second mate, who was stationed as lookout on the bow of the barge, testified that the Terje was about 1,200 feet away when he reported her. This conforms fairly closely to the estimate of a quarter of a mile, made by the Terje’s witnesses. We accept this estimate of the distance between the vessels when they became visible to eaeh other. Bertram reported that a vessel was coming out of Pots Cove, but the master took no action until he saw her himself, which he says was a minute later. He estimated her distance at that time as only 400 or 500 feet. Had he acted at once on the lookout’s report, the collision would probably have been averted, for the vessels came within 35 feet of clearing as it was. It is true that the log of the Nassau showed that the engines were in reverse for four minutes before the collision; but it was written up after tbe event, and we regard it as demonstrably erroneous, being inconsistent, not only with the testimony of the crew, but with the probabilities, in view of the stated speeds of the 'approaching vessels.

Similar criticism may be made of the log <of the Terje, upon which the appellee has relied to support numerous arguments based on the premise that the Terje took 17 minutes to pass from Hell Gate bridge to the point of collision. Her log entry of 12:30 as the time of passing under the bridge we do not credit as accurate. It is inconsistent with the testimony of her' own crew and with the probabilities 'at that stage of the tide. It is claimed that the Nassau swung 45 degrees to starboard. This is a palpable exaggeration. Redly observed,, no change in her course, and Parkinson said she swung slightly. Had her master ordered the helm of the barge as well as the tug to be put hard aport, possibly the swing would have been great enough to clear.

For the reasons given above, we think the Nassau was not free from fault, and that she must share equally with the Terje responsibility for the collision. The cause is therefore remanded, with directions to modify the decrees in conformity with this opinion.