Western Assur. Co. v. Eagle

69 F. 157, 1895 U.S. Dist. LEXIS 31

• Court: District Court, S.D. New York
• Decided: June 6, 1895
• Status: Published

Opinion

BROWN, District Judge.

Between half past 12 and 1 o’clock of the morning of July 25,1894, as the libelant’s canal boat McWilliams was going east through the Bound, in tow of the steam tug Thomas Purcell, and on her starboard side, she was brought in collision with the steam tug Eagle, which was going west at a point about midway between Throgg’s Neck and Stepping B tones, the stem of the Eagle striking the starboard side of the McWilliams and causing her to sink speedily. The libelant, as insurers of the cargo, having settled for the loss on the cargo, filed the above libel to recoup their damages, alleging negligence in both tugs.

The Eagle liad in tow on her port side the disabled steamboat Vulcan, which was not under steam. Both had the regulation side lights burning. The witnesses for the Purcell contend that no staff lights were shown from the Eagle indicating her tow, nor any masthead light on either the Eagle or the Vulcan to indicate that they were -steamers. From, the contrary testimony on the part of the Eagle, however, it is probable that the tow lights were set, though it is certainly somewhat remarkable that so many witnesses in behalf of the Purcell saw no tow lights. The evidence of some of the Purcell’s witnesses is weakened by their statement that the night was dark, and that the hulls of vessels could be seen but a- lew hundred feet The almanac shows that the moon at the time of collision was nearly two hours high; and while that might possibly make- the tow lights less sharply visible, it must have afforded the Purcell sufficient opportunity to see that the Eagle and the Vulcan were steamboats long before they were within 300 or 400 feet of each other, when for the first time any signals were given by either. The boats were on crossing courses, differing about three-quarters of a point from opposite after the Purcell had rounded Throgg’s Neele and taken a course of N. N. E., or allowing for an error of about one-quarter of a point, N. by E., three-quarters E.; the Eagle being on a course S. W. by S., half S. Upon these courses the Purcell when from one-quarter to one-half mile distant, saw the Eagle’s red light, soon after rounding the red buoy at Throgg’s Neck, a little on her starboard bow; and she was bound to keep out of the way of the Eagle, as well as to signal her properly under the inspector’s rules. She did neither. Tier excuse is, that not seeing" any white light to indicate a steamer, she did not know what the two red lights seen might be, and therefore gave no signal at all until after receiving a single blast from the Eagle, when about 300 or 400 feet distant. I cannot accept this as a reasonable or sufficient excuse for not signaling earlier. It must have been seen that the boats were steamers long before this, had any proper attention been given to them; and even if the red light had been that oí a sailing vessel, as the Purcell’s witnesses say they first supposed, her duty to keep out of the way would have been the same. Nothing effectual was done by her until too late, when the only chance of escape was seen to be to go on as fast as possible, and this was unavailing. The fault of the Purcell was, the lack of suitable care and attention, i. e. a proper lookout, and consequent failure to take any efficient and timely measures to keep out of the way of the red lights admitted to have been seen, as well as the failure to signal when the two, red lights ought to have been seen to be Steamers’ lights.

The fault of the Purcell does not excuse the equally plain fault of the Eagle. Her contention is, that the red light of the Purcell continued to bear about half a point upon her port bow until the vessels had come within about 300 or 400 feet of each other, when the Purcell, it is alleged, made a sheer to the westward across the bow of the Eagle, showing then for the first time her green light; whereupon the Eagle gave a signal of one whistle, which was soon followed by collision. It is evident, however, that no continuous watch was kept by the Eagle after the red light 'of the Purcell was first seen. No person was stationed as a constant lookout. The sheer of the Purcell, as alleged by the Eagle, is altogether improbable. It is denied by the Purcell, whose course of N. N. E. by her compass, was taken and kept from the time of rounding the buoy at Throgg’s Neck. Her story' in that regard is consistent and probable, and should be accepted.

I have no doubt that the red light of the Purcell testified to by the Eagle’s witnesses was the light seen while the Purcell was rounding the buoy at Throgg’s Neck, and before she had taken her compass course of N. N. E.; and that the change from red to green was made as soon as she took that course, which must have .been when she was from one-quarter to one-half a mile distant from the Eagle. That no one on the Eagle was watching the Purcell, and did not know just when that change of light from red to green was made, is shown by the fact that none of them saw the Purcell’s green and red lights at the same time, which they must have seen had they been watching, and known when the change was made. It was the duty of the Eagle to keep a proper continuous lookout; to observe in time the change which put the vessels on crossing courses after the Purcell rounded Throgg’s Neck, so as to involve danger, and required the rules as regards signals to be observed. Through lack of proper attention in this regard, the Eagle failed to give the signal which she was bound to give under the inspector’s rules, and which if given in time, as required, would have corrected the mistake and confusion to which the Purcell’s witnesses testify in regard to the Eagle and Vulcan, through not seeing the vertical staff lights, whether they were properly set and burning, or not.

For these reasons, both vessels must be held in fault, and the libelant is entitled to a decree against both vessels, with costs.