The Washington

Second Circuit

The Washington

250 F. 436, 162 C.C.A. 506, 1918 U.S. App. LEXIS 1912

CourtCourt of Appeals for the Second Circuit

DecidedMarch 13, 1918

DocketNo. 168

StatusPublished

This text of 250 F. 436 (The Washington) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

The Washington, 250 F. 436, 162 C.C.A. 506, 1918 U.S. App. LEXIS 1912 (2d Cir. 1918).

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Opinion

HOUGH, Circuit Judge

(after stating the facts as above). This appeal has, we think, resulted from indignation over the conduct of the Rice in drifting, tail to, down the North River for- nearly three miles, in a dense fog.

[1, 2] We are not concerned to palliate such conduct, but must inquire whether it proximately caused this particular collision. Whether by good or bad navigation the Rice and her tow got in front of the Washington’s slip, and made their presence known by the only signal known to the law. The Washington heard, recognized a tow, knew it might be either on a hawser or alongside, and when the sound was sufficiently broad off the bow to give apparent clearance for either kind of tow went ahead, and found the end of a moderately long hawser tow so close aboard that she could not stop in time to avoid collision. Assuming that the Rice had drifted into the Washington’s path, she went ahead properly on hearing (and she says seeing) that ferryboat, which came into collision by miscalculating, or rather not guessing right, as to the prohable length of the possible hawser tow.

The navigation of the Rice, before she and the Washington began to navigate with reference to each other., is immaterial, unless her position when such related or relative action began caused or contrib- ^ uted to collision. Plainly it did not; and what caused contact was the. Washington’s error in going faster than would permit her to avoid the kind of tow she admits might have been encountered. Until 500-foot tows are illegal in this harbor, they must be reckoned on. Of course, tugs with such tows owe a corresponding duty of care; but absence of such care must contribute to injury to produce liability.

[3] That the boat in tow could not whistle is admitted. The statute now prevents any other noise, and the reasons for the present written rule are set forth in The City of New York, 49 Fed. 956, 1 C. C. A. 483. Cf. Hughes v. Penn._R. R. Co. (D. C.) 93 Fed. 510, affirmed 113 Fed. 925, 51 C. C. A. 555. Decisions imposing a duty of making signals on a boat left moored'or swinging at a pier end in a fog (The Jersey Central, 221 Fed. 625, 137 C. C. A. 349), or declaring it negligence in a tug to let her tow so swing out into the stream from a pier, without producing a noise at the distant and moving end (The Express, 212 Fed. 672, 129 C. C. A. 208; The Bern, 243 Fed. 859, 156 [438]*438C. C. A. 371), have no application to a tug navigating with a tow. The statutory noise excludes any other.

Decree affirmed, with interest and costs to both appellees, against owners of the Washington.

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HOUGH, Circuit Judge

(after stating the facts as above). This appeal has, we think, resulted from indignation over the conduct of the Rice in drifting, tail to, down the North River for- nearly three miles, in a dense fog.

[1, 2] We are not concerned to palliate such conduct, but must inquire whether it proximately caused this particular collision. Whether by good or bad navigation the Rice and her tow got in front of the Washington’s slip, and made their presence known by the only signal known to the law. The Washington heard, recognized a tow, knew it might be either on a hawser or alongside, and when the sound was sufficiently broad off the bow to give apparent clearance for either kind of tow went ahead, and found the end of a moderately long hawser tow so close aboard that she could not stop in time to avoid collision. Assuming that the Rice had drifted into the Washington’s path, she went ahead properly on hearing (and she says seeing) that ferryboat, which came into collision by miscalculating, or rather not guessing right, as to the prohable length of the possible hawser tow.

The navigation of the Rice, before she and the Washington began to navigate with reference to each other., is immaterial, unless her position when such related or relative action began caused or contrib- ^ uted to collision. Plainly it did not; and what caused contact was the. Washington’s error in going faster than would permit her to avoid the kind of tow she admits might have been encountered. Until 500-foot tows are illegal in this harbor, they must be reckoned on. Of course, tugs with such tows owe a corresponding duty of care; but absence of such care must contribute to injury to produce liability.

[3] That the boat in tow could not whistle is admitted. The statute now prevents any other noise, and the reasons for the present written rule are set forth in The City of New York, 49 Fed. 956, 1 C. C. A. 483. Cf. Hughes v. Penn._R. R. Co. (D. C.) 93 Fed. 510, affirmed 113 Fed. 925, 51 C. C. A. 555. Decisions imposing a duty of making signals on a boat left moored'or swinging at a pier end in a fog (The Jersey Central, 221 Fed. 625, 137 C. C. A. 349), or declaring it negligence in a tug to let her tow so swing out into the stream from a pier, without producing a noise at the distant and moving end (The Express, 212 Fed. 672, 129 C. C. A. 208; The Bern, 243 Fed. 859, 156 [438]*438C. C. A. 371), have no application to a tug navigating with a tow. The statutory noise excludes any other.

Decree affirmed, with interest and costs to both appellees, against owners of the Washington.

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250 F. 436, 162 C.C.A. 506, 1918 U.S. App. LEXIS 1912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-washington-ca2-1918.

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