The Yarmouth

100 F. 667, 1900 U.S. Dist. LEXIS 420

• Court: District Court, D. Massachusetts
• Decided: March 19, 1900
• Docket: No. 1,031
• Status: Published

Opinion

LOWELL, District Judge.

This was a suit brought to recover damages caused to the sidewheel harbor steamer Mayflower, plying between Boston and Nantasket, by a collision in Boston Harbor with the iron screw steamship Yarmouth, plying between Boston and Yar-mouth, Nova Scotia. The collision occurred August 22, 1899. At the place of collision there Avas a thick fog. In some other parts of the harbor there Avas little more than a haze. The weather Avas other-Avise pleasant; the wind very light from the eastward; the hour between 2:25 and 2:40 p. m.; the tide about half ebb. The Mayflower had left Pemberton on her way to Boston. Nine minutes after passing Nix Mate she passed on her port hand the steamship Sagamore lying at anchor. Very soon after, the Yarmouth seemed to emerge from the fog. The Mayflower's engines were at once reversed, and her helm put to port; but the bow of the Yarmouth entered her port side about 40 feet from the stem, cutting in nearly to the pilot house. Almost immediately the vessels separated. The shock.was slight to both vessels, — not enough to upset the passengers or disturb the position of the furniture. The Yarmouth had left her wharf to proceed upon her voyage. She entered the fog near the gas buoy on the Upper Middle, which she passed not far away. Later she passed buoy No. 8 close upon her port hand. She heard several fog blasts, which those aboard her subsequently supposed to have come from the Mayflower. On hearing the last and nearest, her engines were immediately reversed full speed at almost the exact moment when the Mayflower was first perceived, bearing a little on her starboard bow. The helm of the Yarmouth was put to port, but the collision occurred as above described. The libel of the Mayflower alleges faults on the part of the Yarmouth as follows:

1. Failure to observe article 25 of the new inland rules, by the Yar-mouth’s keeping wholly upon the port side of the channel, instead of upon the starboard side, as' required by the article. President Roads and its approaches are, I think, a “narrow channel,” within the meaning of the rules. The claimant contends that article 25 is not intended to apply in a fog, but only where objects can easily be distinguished for a considerable distance. He urges that a compliance with the rule is practically impossible in a fog, because then the position of a vessel cannot be known at every moment with entire accuracy, but she is compelled to take the best course she can, irrespective of the imaginary line of the “mid channel.” The article requires steain vessels to keep on the starboard side of a narrow channel “when it is safe and practicable.” Doubtless it may occasionally be unsafe and may often be impracticable to keep with accuracy on the starboard side' of a narrow channel in a thick fog or in thick darkness, and 80> a deviation from the starboard side which would be blameworthy in open daylight may be excusable in fog or darkness, but the article is not to be limited strictly to clear daylight. So far as is safe and practicable under all the circumstances, a steam vessel must always keep herself on the starboard side of “a narrow channel.” Steamship Co. v. Smith, 20 C. C. A. 419, 74 Fed. 261; The Vanderbilt, 6 Wall. 225, 229, 18 L. Ed. 823. in this case not only was the Yarmouth’s course far upon the port side of the channel, but she made not the. slightest effort to avoid that course. A reporter who talked with her captain two days after the collision testified that the captain informed him that he had tried to keep on the starboard side of the channel; but the captain made no such statement in his evidence, and I am forced to conclude either that the reporter misunderstood the captain, or that the captain’s statement was incorrect when made. There was nothing in the circumstances of the case or in the situation to exonerate the Yarmouth from attempting to comply with the literal meaning of the article, and, as no attempt was made, I must find her at fault for disobeying the rule.

2. Excessive speed in a fog: According to the testimony from the Yarmouth, she had been proceeding for some time before the accident at a rate of speed never greater than that produced by from 2“ to 20 revolutions of her engines per minute, — a rate of speed designated by her captain and engineer as ‘■'slow.’’ The engines had often been stopped, and some of those on the Yarmouth testified that they had once been reversed half speed astern for a few moments. According to the statements of most of those on the Yarmouth, her rate of speed tiuough the water shortly before the accident was not more than from 2 to 4 knots an hour; the whistle of the Mayflower was heard just before she was seen apparently to emerge from the fog; the Yarmouth gave three whistles, and her engines were reversed full speed astern. In the opinion of her captain and others on board of her, this action was causing her to move slowly astern through the water at the moment of collision. I find myself compelled to doubt the accuracy of much of this testimony. That the Yarmouth was being navigated at a speed and with a care not uncommon among steam vessels in a fog may be admitted. The reported cases contain ample proof that this customary speed is often, if not usually, too high. Soe The Columbian (D. C.) 91 Fed. 801, and cases there cited. The times taken by the Yarmouth in passing from point to point in her course, viz. from the gas buoy near the Upper Middle to the place of collision, from the gas buoy to buoy No. 8, from buoy No. 8 to the place of collision, while none of these times can be established accurately, yet, upon the whole, indicate that her rate of speed when proceeding under the “slow” signal was much more than 3 or 4 knots, — probably at least 6. That the speed had been considerably reduced before the collision occurred is not doubted, but I cannot believe that the Yarmouth .was either stationary in the water or moving astern at that time. Much expert testimony was offered concerning the inference which should be drawn from the effect of the blow and the size of the wound inflicted upon the Mayflower. The experts on both sides were intelligent and honest, but Constructor Baxter, upon whom the claimant relied, admitted that he had never seen a wound like the Mayflower’s produced in a vessel which had collided with a stationary or retreating object. lie testified that, in his opinion, the Yarmouth was going astern to 1 j; knots, and the Mayflower going ahead 2 to. 4. I cannot believe that the Mayflower, thus striking a retreating vessel, could impale herself so deeply upon it. On the contrary, I find that at the time of the collision the Yarmouth was proceeding through the water at a rate which cannot be stated accurately, — from 2 to 4 knots,— and that at the time her engines were reversed her rate of speed was excessive, considering the place of the accident. This opinion is strengthened by the fact that the Yarmouth heard several whistles on an approaching vessel, nearly ahead, and did not act upon them in any way until the last blast was heard, — whether immediately before or immediately after the Mayflower appeared, is hard to say.

3. Failure to maintain a proper and sufficient lookout: The Yar-mouth had two seamen stationed close to her stem, — one on the starboard and one on the port side. Twenty feet astern of them, halfway between' them' and the pilot house, the first officer was stationed, with no duty except to look out, and to pass to the pilot house the report made by the seamen. There were other seamen near the stem, not particularly occupied, and the second officer was heaving the lead from the starboard side of the vessel. The quartermaster was at the wheel, the captain on the starboard side of the pilot house, the pilot upon the port'side. Excluding the second officer and the seamen not especially on the lookout, there was ample provision in every respect; and upon this head I find the Yar-mouth free from blame.

4. Failure to sound a proper and sufficient fog whistle: That the fog whistle of the Yarmouth was regularly blown is testified to by all on board, — crew and passengers alike, — and I have no doubt that this was done. It has been urged that there is evidence to show that the fog whistle was insufficient, but this seems to me so unlikely, and the evidence in support of the 'contention so weak, that, although the whistle may not have been specifically distinguished, either by those on the Mayflower or by those on the anchored steamer Sagamore, until the three whistles were blown upon it, yet I am unable to find the Yarmouth to blame in this respect. Not improbably, the Mayflower’s mate did hear the Yar-mouth’s whistle some time before the latter appeared, but did not report.it. ”

5. Failure to keep clear of the Mayflower, and to pass her port to port: I doubt if article 18, rule 1, applies in this case. When a vessel in a fog, proceeding properly in other respects, hears a whistle slightly on either bow, it is not clear that the wheel should at once be put to port, as the whistle may proceed from a vessel going in any direction. So far as the fault charged in this head differs from that charged in the second head, I am inclined to think that the Yarmouth is not to blame, and she was not to blame for giving a reversing instead of a passing signal at the last moment.

Having thus found the Yarmouth at fault for the collision, it remains to consider if the fault of the Mayflower contributed thereto. The only fault stated in the answer, and that principally urged in the argument, is excessive speed. According to the testimony of those on the Mayflower, she was proceeding at what was designated by her captain and pilot as “half speed.” Various estimates of this speed were given by those on board her, and by other persons who were familiar with her movements; but it is unnecessary to consider these estimates, or those made from the Yarmouth and the Sagamore, because there is testimony establishing with sufficient accuracy wliat was her rate of speed on the day of the collision, and barely a minute before it. She was 9 minutes, precisely, in traversing the distance between Nix Mate bell buoy and the steamer Sagamore. The position of the Sagamore is determined by an observation made by those on board of her in the late afternoon of the same day. The Sagamore was'tlien swinging to a flood tide, and the position of her bridge had been brought by the change of tide about 750 feet further from Nix Mate; than at the time of the collision. Making allowance for this swing, the Sagamore lay at the time of the collision fully 1-J- miles from Nix Mate buoy. This distance, as has been said, was covered by the Mayflower in Í) minutes; that is, at a rate of speed over the ground of 7} knots, it is impossible to determine accurately the strength of the rich» which was running against the Mayflower. Between Long Island light and Deer Island light it was about ■> knots. By the Sagamore it may not have been running over knots, though probably it was a iiitle stronger. Its average strength over the course traversed by the Mayflower in these 9 minutes cannot have been less than 1¿ knots, and was probably nearer 2 knots. This would make the speed of the .Mayflower through the water from 9 to 9J- knots. Bo direct and conclusive is this evidence of the Mayflower’s speed, that to discuss the various estimates of it would be altogether unprofitable. The calculation thus made is confirmed by the fact that the ordinary running time of the Mayflower under half speed from Nix Mate bill buoy to buoy No. 8, a distance of about 2.425 knots, was 18 minutes, indicating a-speed of something over 8 knots. Again, on the day in question the distance from Pemberton to Nix Mate bell buoy had been covered in 10 minute's and a half, at a rate of speed exceeding 12 knots. According to the engineer, full speed was not kept up over 6 minutes. If full speed be taken at 14 knots, half speed was not much less than,, 10. Upon the whole, therefore, th(> half speed of the Mayflower through the water was decidedly more than 8 knots. Her speed over the ground was more than 7 knots. It was ingeniously contended by counsel for the libelant that the test of a steamer’s speed in a fog is her speed over the ground, and not her speed through the water. The true rule is stated by Mars. Mar. Coll. p. 436:

"As rosan Is danger to vessels at anclior, the speed of the other ship over the ground, and not through tlie water, Is that which must be considered, and in such cases Hie strength and direction of the tide must be taken into account. As regareis danger to vessels under way, the tide is immaterial.”

That is to say, it is the duty of a vessel to proceed in a fog at a moderate speed, both with respect to moving and to anchored vessels. That she is proceeding at a moderate rate of speed over the ground will not free her from blame, if, 'proceeding immoderately through the water, she strikes a vessel under way. That she is proceeding moderately through the water will not excuse her, if, proceeding immoderately over the ground, she strikes a vessel properly anchored. Speaking generally, speed through the water is the more important consideration. This affects more closely her maneuvering ¡lower, and under ordinary circumstances is more easily determined than-the rate over .the ground. In the case of a steam vessel, the former can be known with considerable accuracy by counting the revolutions of the engine or by the log; the latter often knowm only by an allowance for the tide, which cannot easily be made. The object of requiring a vessel to proceed slow'ly in a fog is to enable her to avoid other objects. These objects to be avoided are oftener moving than stationary, and, as a rule, stationary objects are more easily avoided. Extreme cases of very swift tide can be put, in which the ordinary requirement concerning speed must be modified, and this is to be expected; for the rules are not rigid, and do not impose upon vessels a duty to pro-' ceed at the same rate under all circumstances. Upon the whole, however, the general application of the rule requiring a vessel to proceed at moderate speed in a fog' is much more commonly applicable to her speed through the water than to her speed over the ground. It would be strange if, in a collision in the Gulf Stream, where the current is considerable, and easily and accurately determinable, an allowance should be required for this current in case of a fog. No case has been found by counsel or by the court in which a speed of 8 or 9 knots an hour through a dense fog in a crowded harbor, where, as was testified .by the* captain of the Sagamore, the air seemed filled with fog signals, has been held a safe and proper rate. Even if the speed made over the ground (say, knots) were taken as the Mayflower’s rate of speed, the same result would be reached. “While it is possible that a speed of six miles an hour, even in a dense fog, may not be excessive upon the open ocean and off the fre-quefited paths of commerce, a different rule applies to a steamer just emerging from the harbor of the largest port on the Atlantic Coast.” The Martello, 153 U. S. 64, 70, 14 Sup. Ct. 723, 38 L. Ed. 637.

It was urged with great force that the Mayflower was able to stop in not less than her own length when proceeding at this speed, and, hence, as the Yarmouth was recognizable 1-| or 2 lengths away, that the Mayflower had complied with the rule. Some of this testimony was of weight, but I am not satisfied that the Mayflower was stopped at the time of the collision. Doubtless her rate of speed was low, and also that of the Yarmouth, — a fact proved by the slightness of the shock, as testified to by all on both vessels. The rapidity with wrhich the two vessels separated proves that the engines of both were reversed at the time of collision; but I rather think that the Mayflower was then proceeding ahead at a low rate of speed, — say, 2 or 3 knots an hour; probably not quite so fast as the Yarmouth, though this is not clear. Immediately before the collision the Mayflower was proceeding át a rate of speed never held to be allowable in like case, and, if this be so, she certainly cannot be permitted to maintain her faultlessness unless she shows clearly that this rate of speed, apparently excessive, could not have contributed in any way to the collision. I do not think that this has been established. Indeed, the evidence indicates to me that her excessive rate of speed did contribute to the collision, and I find her to blame in this respect. Again, the mate of the Mayflower, who was on the lookout, heard a whistle ahead of him a little while before the collision. It is not certain that this came from the Yar-mouth. Probably it did, and, in any case, to continue at an 8 or 9 knot speed after hearing it, was in flagrant defiance of the rules. See article 16. It is immaterial whether the captain heard the whistle or not. If the mate failed to report it, the captain’s failure to hear it does not excuse the vessel. That those on the Sagamore did not hear it, or did not distinguish it among the many other blasts heard, proves nothing. The result is that both vessels contributed to the collision, and there must be a decree for the libel-ant for half the damage sustained.