The Wrestler

144 F. 334, 75 C.C.A. 296, 1906 U.S. App. LEXIS 3839

• Court: Court of Appeals for the Second Circuit
• Decided: March 23, 1906
• Docket: No. 173
• Status: Published

Opinion

PER CURIAM.

Judge Thomas has most exhaustively rehearsed the facts. Most of them are not in dispute, and upon the points where there was some conflict between the witnesses he had the opportunity to hear the testimony and see those who gave it, and there, is nothing in the case which would warrant a rejection of his conclusions thereon. After a careful discussion, he held the Wrestler in fault because her navigator allowed the two-wl)istle signal, which he blew to an overtaking si earner, to have their full effect on the Tebo (whose navigator supposed they were an assent to his own two whistles), and later changed the maneuver to one suitable under one whistle, and this at so late a period that the Tebo could not respond. We concur in his reasoning and conclusion.

lie also held the Tebo in fault because she had an unlicensed pilot, who was also the only lookout, at the wheel. The absence of a stationed lookout was not contributory to the collision — each vessel saw the lights of the other at a distance sufficient to permit them to navigate conveniently and safely. The mere fact that her pilot was an unlicensed man should not be enough to condemn the Tebo. Although a violation of statutory requirement, it would not be a contributing fault if the navigation of the unlicensed man were correct. The presumption of inexperience and unskillfulness, arising from his holding no license would in such event be rebutted by proof that on the occasion in question he navigated expertly and skillfully. We are not satisfied, however, that his navigation was free from fault. The locality in question is a narrow channel, less than 700 feet wide, through which many vessels are passing by niglit as well as by day. Article %’ó required' the Tebo to keep to that side of the fairway or midchannel which lay on her starboard side, and there is nothing to show that.it was unsafe or impracticable for her to comply with this requirement. It is conceded by her own witnesses that she was not on the starboard side of midchannel, which, as she was bound east, would be towards Blackwells Island, but was on the port side, some 2-10 to 2¡>0 out from the New York shore. We cannot find that this violation of the rule did not contribute to the catastrophe. On the contrary, wc are inclined to the opinion that it was the fundamental cause of the navigation which resulted in disaster. The navigator of the Tebo undertook to pass the Wrestler starboard to starboard and signaled his intention so to do, because when he first made her out her green light was bright and her red light dim (as if only partly seen) and she was a little on his own starboard.bow. Had he been in his proper place, a little eastward of midchannel, he would have had no doubt he was meeting the Wrestler “end on, or nearly so.” Presumably in that case he would have navigated in conformity to article 18, rule 1, and undertaken to pass on the port side after giving a single-blast whistle; in which event this collision would probably not have occurred.

The decree is affirmed, with interest, but, since both sides appealed, without costs.