Yerton v. The Robert Robinson

S.D. New York

Yerton v. The Robert Robinson

55 F. 123

DecidedApril 15, 1893

StatusPublished

This text of 55 F. 123 (Yerton v. The Robert Robinson) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Yerton v. The Robert Robinson, 55 F. 123 (S.D.N.Y. 1893).

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Opinion

BROWK, District Judge.

The above libelants were the owners respectively of the canal boats Jones and Mulhare, which, at about 2 A. M. of October 15, 1891, were sunk a few hundred yards below Fort William, abreast of Governor’s island, through collision with Scow I\To. 5, which was in tow of the tug Robinson. The canal boats were in tow alongside of the tug Sheer, and bound from Morris’ dock to Gowanus. The Robinson was towing the scow up the bay upon a hawser of about 75 fathoms. When the Sheer had approached the Robinson within about a quarter of a mile, she gave her a signal of one whistle, indicating that she would go under the Robinson’s st'ern, to which the Robinson answered with one whistle. The Robinson was a little on the port bow of the Sheer, and their courses were crossing, probably from two to three points. That is to be inferred, not merely from the testimony and the diagrams, but from the fact that the Sheer and the Robinson passed each other from 200 to 400 feet distant; and nevertheless, in going not over a hundred yards, the Sheer brought her boats in collision with the scow, which, according to the .testimony, was directly behind the Robinson, and in line with her course. The two canal boats projected considerably ahead of the Sheer; and the scow, coming somewhat crosswise, first struck the starboard boat on her bow, and then passing on, ran into the port boat, causing both to sink in a few moments. The Sheer backed away from between them unharmed.

The first and principal point of controversy in the case is, whether at the time of the exchange of whistles, the Robinson exhibited two white vertical lights, as required by the rules, to indicate a tow, or only one white light, as three witnesses for the Sheer expressly testify. The master of the Robinson, on the other hand, testifies that on giving his ansAvering whistle, he turned to look at his pole lights and saw both burning brightly. Two or three other witnesses for the Robinson testify to observing both vertical lights not long before the collision. The shock of collision parted the hawser of the Robinson and- broke one of the pole halyards. There is no doubt that immediately after the collision only one staff light was burning. For the Robinson it is claimed that the shock of collision extinguished one of the lights; that until then, both vertical lights were burning; and that the witnesses for the Sheer misapply the time when the second pole light went out.

The contradictions on this point are extremely embarrassing, and I haAre found it difficult to arrive at any very satisfactory opinion. From the testimony, however, which Mr. Littlefield, the master of the Robinson, gives as to the conversation between him and Capt. Kelly just after the collision, as to the absence of one of the two vertical lights, as well as from the testimony of other witnesses, there can be no doubt that the charge was made against him at that time that he had not had the proper lights to indicate a tow; and it is difficult to suppose that that charge would have been Avillfully and falsely trumped up within a few moments of the collision, as it must have been, if the pilot and the mate of the Sheer had seen two pole lights instead of one. They had noticed the Robinson at a sufficient dis[125]*125tance; each, was showing to the other her red light, and the officers of the Sheer were the first to give proper signals to indicate that she would go under the Robinson’s stern. It seems scarcely credible, therefore, that they should not have noticed the two staff lights of the Robinson, if at that time two had been showing; nor, if they had noticed two, that they should a few -moments afterwards have charged the master of the Bkeer with having hut one. Their testimony is confirmed by the man on the Jones, who-came on deck when the scow was only 100 feet away, and is quite positive that there was but a single pole light then burning. ’ A rigid cross-examination seems to me to have been well supported by him, and I do not think it is shown that lie was not in a position to see the tug and her staff lights before collision. It is, however, possible in Ms case that the time of noticing the pole light may have been transposed.

I do not attach very much weight to the testimony of several of the witnesses for the Robinson, who think they saw the two pole Sights shortly before collision. They had no duly in regard to it; and there was nothing to call their attention to it. The pilot and main of the Rkoey on. the other hand, were navigating in reference to the Robinson, as their original whistle to her shows, and designed to go under her stern; and from the time she was first seen by ihem until they passed from 200 to 4CO feet abreast- of her, there? was abundant opportunity to see the lights she carried; and as the Kkeer was mwRhig the Robinson's course under her stem, it se-ww to be, as above stated, incredible that ihey should not have paid sufficient attention to see whether she indicated a tow or not, or should not have seen both the staff lights, if they were properly burning. Upon these circumstances and the testimony, therefore, it seems to me that the weight, of probability is in favor of the Rkeer.

in one other regard I think the Robinson ought, also, to be held in fault; namely, for the unusual lengih of hawser which she was using for the scow in that situation. The evidence leaves no doubt that it was customary, in towing Sight scows up the bay, to shorten the hawser to about 100 feet off Bed Hook, or in that neighborhood. This was expected bj the men on board the Robinson that night; and they were in attendance for that purpose, as appears from their testimony; but it war. not shortened. The Sheer crossed the Robinson's course about 400 feet astern of her, and this was twice the distance of an ordinary scow-tow upon a hawser in that region. The scow was not seen by the Sheer until within one or two hundred feet of her, when orders to reverse wore immediately given, but too late. There is no doubt that the Sheer was misled, or misunderstood the situation. An unusual length of hawser would contribute to mislead her, even if (here had been two staff lights, and these lights had been seen. The unusually long hawser might account for the colli sion, even if the story of the Bkeer in regard to-the lights was held to be a fabrication; that is to say, if both lights had been burning, and had been seen by the pilot and mate of the Sheer, since they might have supposed that they went a sufficient distance astern to avoid any stern tow of the Robinson. But this seems hardly credible [126]*126upon such a moonlight night. For the Skeer passed the Robinson near enough to see whether the tow, which two pole lights would have indicated, was alongside, or was astern; and it being plain enough that no tow was alongside, it must have been looked for astern. So that if two lights had been visible and seen, it does not seem credible that the collision should have taken place. I think the Robinson must, therefore, be held in fault both for failure to display proper staff lights, and for the unusual length of hawser.

The Skeer must, also, be held in fault for lack of vigilance in observing the scow. She was not only a large object some 12 or 15 feet out of water, easily seen on such a moonlight night, even without lights, in ample time to avoid her; but the evidence also leaves no possible doubt that she had white lights displayed and visible, to which no attention was given until the Skeer had approached within 100 or 200 feet, of her.

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BROWK, District Judge.

The above libelants were the owners respectively of the canal boats Jones and Mulhare, which, at about 2 A. M. of October 15, 1891, were sunk a few hundred yards below Fort William, abreast of Governor’s island, through collision with Scow I\To. 5, which was in tow of the tug Robinson. The canal boats were in tow alongside of the tug Sheer, and bound from Morris’ dock to Gowanus. The Robinson was towing the scow up the bay upon a hawser of about 75 fathoms. When the Sheer had approached the Robinson within about a quarter of a mile, she gave her a signal of one whistle, indicating that she would go under the Robinson’s st'ern, to which the Robinson answered with one whistle. The Robinson was a little on the port bow of the Sheer, and their courses were crossing, probably from two to three points. That is to be inferred, not merely from the testimony and the diagrams, but from the fact that the Sheer and the Robinson passed each other from 200 to 400 feet distant; and nevertheless, in going not over a hundred yards, the Sheer brought her boats in collision with the scow, which, according to the .testimony, was directly behind the Robinson, and in line with her course. The two canal boats projected considerably ahead of the Sheer; and the scow, coming somewhat crosswise, first struck the starboard boat on her bow, and then passing on, ran into the port boat, causing both to sink in a few moments. The Sheer backed away from between them unharmed.

The first and principal point of controversy in the case is, whether at the time of the exchange of whistles, the Robinson exhibited two white vertical lights, as required by the rules, to indicate a tow, or only one white light, as three witnesses for the Sheer expressly testify. The master of the Robinson, on the other hand, testifies that on giving his ansAvering whistle, he turned to look at his pole lights and saw both burning brightly. Two or three other witnesses for the Robinson testify to observing both vertical lights not long before the collision. The shock of collision parted the hawser of the Robinson and- broke one of the pole halyards. There is no doubt that immediately after the collision only one staff light was burning. For the Robinson it is claimed that the shock of collision extinguished one of the lights; that until then, both vertical lights were burning; and that the witnesses for the Sheer misapply the time when the second pole light went out.

The contradictions on this point are extremely embarrassing, and I haAre found it difficult to arrive at any very satisfactory opinion. From the testimony, however, which Mr. Littlefield, the master of the Robinson, gives as to the conversation between him and Capt. Kelly just after the collision, as to the absence of one of the two vertical lights, as well as from the testimony of other witnesses, there can be no doubt that the charge was made against him at that time that he had not had the proper lights to indicate a tow; and it is difficult to suppose that that charge would have been Avillfully and falsely trumped up within a few moments of the collision, as it must have been, if the pilot and the mate of the Sheer had seen two pole lights instead of one. They had noticed the Robinson at a sufficient dis[125]*125tance; each, was showing to the other her red light, and the officers of the Sheer were the first to give proper signals to indicate that she would go under the Robinson’s stern. It seems scarcely credible, therefore, that they should not have noticed the two staff lights of the Robinson, if at that time two had been showing; nor, if they had noticed two, that they should a few -moments afterwards have charged the master of the Bkeer with having hut one. Their testimony is confirmed by the man on the Jones, who-came on deck when the scow was only 100 feet away, and is quite positive that there was but a single pole light then burning. ’ A rigid cross-examination seems to me to have been well supported by him, and I do not think it is shown that lie was not in a position to see the tug and her staff lights before collision. It is, however, possible in Ms case that the time of noticing the pole light may have been transposed.

I do not attach very much weight to the testimony of several of the witnesses for the Robinson, who think they saw the two pole Sights shortly before collision. They had no duly in regard to it; and there was nothing to call their attention to it. The pilot and main of the Rkoey on. the other hand, were navigating in reference to the Robinson, as their original whistle to her shows, and designed to go under her stern; and from the time she was first seen by ihem until they passed from 200 to 4CO feet abreast- of her, there? was abundant opportunity to see the lights she carried; and as the Kkeer was mwRhig the Robinson's course under her stem, it se-ww to be, as above stated, incredible that ihey should not have paid sufficient attention to see whether she indicated a tow or not, or should not have seen both the staff lights, if they were properly burning. Upon these circumstances and the testimony, therefore, it seems to me that the weight, of probability is in favor of the Rkeer.

in one other regard I think the Robinson ought, also, to be held in fault; namely, for the unusual lengih of hawser which she was using for the scow in that situation. The evidence leaves no doubt that it was customary, in towing Sight scows up the bay, to shorten the hawser to about 100 feet off Bed Hook, or in that neighborhood. This was expected bj the men on board the Robinson that night; and they were in attendance for that purpose, as appears from their testimony; but it war. not shortened. The Sheer crossed the Robinson's course about 400 feet astern of her, and this was twice the distance of an ordinary scow-tow upon a hawser in that region. The scow was not seen by the Sheer until within one or two hundred feet of her, when orders to reverse wore immediately given, but too late. There is no doubt that the Sheer was misled, or misunderstood the situation. An unusual length of hawser would contribute to mislead her, even if (here had been two staff lights, and these lights had been seen. The unusually long hawser might account for the colli sion, even if the story of the Bkeer in regard to-the lights was held to be a fabrication; that is to say, if both lights had been burning, and had been seen by the pilot and mate of the Sheer, since they might have supposed that they went a sufficient distance astern to avoid any stern tow of the Robinson. But this seems hardly credible [126]*126upon such a moonlight night. For the Skeer passed the Robinson near enough to see whether the tow, which two pole lights would have indicated, was alongside, or was astern; and it being plain enough that no tow was alongside, it must have been looked for astern. So that if two lights had been visible and seen, it does not seem credible that the collision should have taken place. I think the Robinson must, therefore, be held in fault both for failure to display proper staff lights, and for the unusual length of hawser.

The Skeer must, also, be held in fault for lack of vigilance in observing the scow. She was not only a large object some 12 or 15 feet out of water, easily seen on such a moonlight night, even without lights, in ample time to avoid her; but the evidence also leaves no possible doubt that she had white lights displayed and visible, to which no attention was given until the Skeer had approached within 100 or 200 feet, of her. Ho doubt the fact that the scow was moving through the water, distinguishes the case somewhat from that of running into a similar boat at anchor; but the failure to observe her altogether until she was so near, deprives the Skeer of any defense on that ground, since it wholly fails to meet her negligence in observation, with which I must hold her chargeable. The nonobservance of the scow evidently contributed to the collision; and each must, therefore, contribute to the loss. Ho fault is proved against the sCow. The libelants are each, therefore, entitled to a decree against the Robinson and the Skeer; and the libel as respects the scow must be dismissed. Decrees accordingly.

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