In re Clyde S.S. Co.

• Decision Date: 07 December 1904
• Citation: 134 F. 95
• Parties: In re CLYDE S.S. CO. In re OLD DOMINION S.S. CO.
• Court: U.S. District Court — Southern District of New York

134 F. 95

In re CLYDE S.S. CO. In re OLD DOMINION S.S. CO.

United States District Court, S.D. New York.

December 7, 1904

Wing Putnam & Burlingham, for Old Dominion S.S. Co.

Robinson Biddle & Ward, for Clyde S.S. Co.

Convers & Kirlin, Hunt, Hill & Betts, Wing, Putnam & Burlingham Butler, Notman, Joline & Mynderse, Robinson, Biddle & Ward Francis D. Winston, Arthur L. Fullman, John R. McMullin, Norman B. Beecher and A. Leo Everett, for various claimants.

ADAMS District Judge.

These petitions for limitation of liability on the part of the Old Dominion Steamship Company and the Clyde Steamship Company, were the result of a collision which occurred in the Atlantic Ocean near the Winter Quarter Shoal Lightship, off the coast of Virginia, about 7 miles at sea, on the 5th day of May, 1903, in the early morning, between the steamships Hamilton and Saginaw, owned by the respective petitioners. As usual in such cases, it was sought, in the beginning, to contest, as well as to limit, liability, and each vessel charged the other with faults alleged to have produced the collision. A dense fog prevailed at the time.

The Hamilton, about 300 feet long and 40 feet beam, left New York on the 4th day of May, 1903, about 3 o'clock P.M. bound for Norfolk, Virginia. At the time of leaving the weather was fine, but about 8 o'clock a thick fog set in, and she reduced her speed slightly. At practically the same time she started her automatic electric whistle, which was blown at intervals of about 54 seconds. When the Delaware Lightship was passed at 11:35 P.M., the fog was dense and it continued so until after the collision.

The Saginaw, 238 feet long and 38 feet beam, left Norfolk, Virginia, the 4th day of May about 6:30 o'clock P.M. bound for Philadelphia. She ran into the fog about 1 A.M. of the 5th and continued her full speed of about 9 1/2 knots until a few minutes after 4 o'clock when, according to her contention, the fog first became dense. She then reduced her speed to some extent, not by orders by means of the Telegraph but by verbal directions through the speaking tube, running from the pilot house to the engine room, to slow the engine and let her steam run down. These orders were obeyed and she contends that they had the effect of reducing her headway at the point of collision to between 5 and 6 knots per hour.

The collision occurred at 4:44 or 4:45 o'clock A.M. about 2 3/4 miles S.S.E. of the Winter Quarter Lightship, the stem of the Hamilton striking the port side of the Saginaw about 30 feet from the stern and cutting off a portion of the stern, the direction of the blow extending aft. The court of the Hamilton prior to reaching the immediate vicinity of the collision was about South-west 1/2 South and that of the Saginaw North-east by North. Both vessels had for some time been sounding fog whistles and, prior to the collision, had heard the other's blasts. The Saginaw sank almost immediately and became a total loss, with some loss of life, personal injuries and damage to cargo. The Hamilton's stem was twisted slightly to port but she was not materially injured and after picking up such of the survivors as could be found, after due search, proceeded on her voyage.

The Hamilton was proceeding down the coast in a fog at about two-thirds of her full speed of 14 knots and candidly admits that she was in fault for excessive speed.

The other faults charged against her of not sounding the signals required by law; not having any competent lookout; have a defective reversing gear; and in not stopping and backing seasonably before the collision are not, apparently, sustained by the evidence but her excessive speed is enough to condemn her and consideration of the other alleged faults is not required.

The charges of fault against the Saginaw are: in not sounding the signals required by law; at proceeding at an immoderate speed in fog; in not having any competent officers in charge or any sufficient lookout; in now slowing, stopping and backing when the whistles of the Hamilton were heard; in not keeping her proper course; in porting her helm, and not taking any timely or seasonable precautions to prevent the collision.

The Saginaw strenuously contends that her own speed was not excessive, but if it was so, it was not contributory to the collision, which can be fully accounted for by the Hamilton's fault in that particular, citing The Umbria, 166 U.S. 404, 17 Sup.Ct. 610, 41 L.Ed. 1053, where it was held in a collision case between that vessel and the Iberia, that the faults of the Umbria were so gross that the rule regarding any doubt as to the management of the other vessel, should be resolved in her favor.

The facts here appear to be that prior to the collision the Saginaw had been running for more than 30 miles in a dense fog under full speed bells and that, while so continuing, there was some reduction of speed, when near the point of collision, by the said directions to that effect through the speaking tube. She was probably going 6 knots, at least, at the time of contract. That rate of speed or even less in thick fogs in a frequented part of the ocean, as this was, has been frequently condemned. The Pottsville (D.C.) 12 F. 631; The Luray (D.C.) 24 F. 751; The Oregon (D.C.) 27 F. 751; The Magna Charta, 1 Asp.Mar.Cas. 153; The Raleigh (D.C.) 41 F. 527; Id. (C.C.) 44 F. 781; The Martello (D.C.) 34 F. 71; Id. (C.C.) 39 F. 507; Id., 153 U.S. 64, 14 Sup.Ct. 723, 38 L.Ed. 637; The Colorado, 91 U.S. 692, 23 L.Ed. 379; The Michigan, 63 F. 280, 11 C.C.A. 187; The City of New York, 8 Blatchf. 194, Fed. Cas. No. 2,759; The Alberta (D.C.) 23 F. 807, 813; Watts v. U.S. (D.C.) 123 F. 105, 112.

Moreover, she failed to observe the 16th Rule for preventing collisions at sea, providing:

'A steam vessel hearing apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines and then navigate with caution until danger of collision is over.'

Prior to the Act, containing this rule (Act Aug. 19, 1890, c. 802, 26 Stat. 326 (U.S. Comp. St. 1901, p. 2868)), going into effect, under the general rule relative to vessels meeting in fog, with risk of collision, it was held that when a whistle was heard a few points on either bow, a steamer should stop and, if necessary, reverse, until the exact position and course of the other vessel could be ascertained. The North Star, 62 F. 71, 10 C.C.A. 262, and cases cited. Under the Act now in force, a failure to observe this precaution creates a presumption of fault. The Bernard Hall, 9 Asp.Mar.Cas. 300; The Koning Willem I., Id. 425. In the latter case, it was said by Bucknill, J. (427):

'The question remains whether the Koning Willem I. is also to blame. The reason given by her master for not stopping his engines when he first heard the whistle of the Bittern, or at the second or third whistle, was this-- that his ship was going to slow, and the signal seemed to be so far off that he thought it better to wait until he heard it again, and that so soon as he heard it more ahead-- that is, finer on the bow-- he stopped his engines immediately. Not having ascertained the position of the Bittern when her signals were first heard, in my opinion the engines should have been stopped, apart altogether from art. 16, but certainly in accordance with that article. I think, and the Elder Brethren of the Trinity House who assist me agree, that it was in that weather impossible to have ascertained with any degree of certainty the position of the Bittern-- that is, the bearing and distance of the Bittern from the Koning Willem I.-- when here whistle was first heard, and the master of the Koning Willem I. admits as much himself. I think his duty was, clearly, to have stopped his engines then. With regard to what has been said about signals in a fog, I think I may usefully read part of a paragraph in art. 18 of the Channel Pilot, part 1, 9th edit.: 'Sound is conveyed in a very capricious way through the atmosphere. Apart from wind, large areas of silence have been found in different directions and at different distances from the origin of a sound, even in clear weather. Therefore too much confidence should not be felt in hearing a fog signal.' Now I will refer to the judgment of the President in the case of The Bernard Hall (ubi sup.), the language of which I adopt. The learned President said: 'The Elder Brethren point out that there would be extreme difficulty in knowing how far off the vessel would be in a fog, and therefore they do not think there was any such ascertainment as to justify the Holyrood'-- in this case the Koning Willem I.-- 'in not complying with the clear terms of art. 16, by stopping her engines when she first heard the whistle of the Bernard Hall; and that it is impossible to say that it would not have been a material matter if she had done so. ' Each case must, no doubt, be considered on its own facts; and in this case I hold without doubt that the master of the Koning Willem I., a man of great experience, should have grasped the fact that, as it was impossible for him to locate with any certainty in that dense fog the bearing of the Bittern or her distance away, he should have stopped his engines on first hearing her whistle. Instead of that, he waited until he found that the whistles indicated danger, because he heard them drawing ahead, proving that the Bittern was crossing her bows. So, in this part of the case, there has been a breach of the second part of art. 16. As has been pointed out to me by the Elder Brethren, if you stop your engines you can hear better than you can when the noise of the engines and propeller is going on. If you stop your engines you lessen the danger and

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