136 F. 825 (5th Cir. 1905), 1,273, Quinette v. Bisso
|Citation:||136 F. 825|
|Party Name:||QUINETTE v. BISSO et al.|
|Case Date:||April 10, 1905|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
This is an appeal from the decree of the District Court dismissing the libel exhibited by Malvina L. Quinette, a feme sole, against Joseph Bisso and Joseph A. Bisso, owners of the steam tug Leo (Joseph A. Bisso being master) for running down a skiff, in which libelant's daughter Sophie L. Quinette and a negro oarsman were attempting to cross the Mississippi river, in consequence of which Miss Quinette was drowned, on the morning of the 5th of November, 1900, at Nine-Mile Point, above New Orleans.
The libel charged that the Leo failed to give fog signals, got out of her proper course, maintained an immoderate rate of speed, failed to keep a proper lookout, and did not use proper efforts to rescue Miss Quinette after she was thrown in the water. It alleged 'that Robert Bolds, the oarsman, gave signals by calling out in a loud voice, sufficient to be heard by those in charge of the Leo, and, further, that the noise made by the patent rowlocks with which the skiff was equipped was equivalent to the signal required to be given by skiffs in a fog, and a due compliance with the laws of the United States,' and that the death of Miss Quinette 'was due wholly and solely to the incompetency, unskillfulness, wanton negligence, and gross, criminal negligence of those in charge of the Leo, and by reason of the violation of navigation laws of the United States. ' The answer denied generally and specifically all the faults charged, and that the noise made by the rowlocks was an equivalent for the signal required by the statute and rules, and, further, insisted that Miss Quinette's 'death was caused by her own fault, as well as the fault of said Robert Bolds, in that said skiff was navigated in a dense fog without observing due care and caution, in failing to give fog signals, although in the track of vessels, crossing the course of approaching vessels, and in not keeping out of the way of an approaching steamer, and in failing to give any signal or warning of their location and proximity to the tug. ' The case was heard upon the depositions of some 50 witnesses, taken down stenographically before a commissioner. The witnesses were examined at great length, and the record contains 330 pages of printed testimony. It is impossible, without unduly swelling the statement of facts, to notice in detail the testimony of the different witnesses. It suffices to say that the record, in substance, presents the following state of facts:
Miss Quinette at the time of her death was not quite 22 years of age. She lived with her mother at Nine-Mile Point, and had two brothers, James and Frank, and a sister, who also resided there. For three or four months prior to the time of her death she had been going from Nine-Mile Point to New Orleans, where she had been studying to perfect herself as a milliner. She was then paying her own board, and had just begun to receive $12 a month from her employer. In that time her brothers had given her $60. Her mother testified 'that she had made as much progress in four months as some others had in two years and a half,' and stated that, 'had she lived, she had a prospect of receiving sixty dollars a month,' which statement libelant made 'because others were getting that, who were not as efficient as she. ' This was all the testimony on that point. Bolds, the negro oarsman, was then 21 years of age, but had lost an eye by an accident in his youth. He was shown to be a good oarsman, having had 8 years' experience on the river. On the morning of the accident, James Quinette, who was the owner of the skiff, told Bolds, who was in his employ, 'to get the boat ready to take his sister over the river,' and shortly afterwards she and the oarsman got in the skiff and started on their journey. It was then a few minutes before 7 o'clock. The skiff was 20 feet long, the sides of cypress plank, 2 inches thick, according to the testimony of its owner, and was substantially built, and propelled by oars. 'It was an extra long skiff, more like a yawl. ' Miss Quinette took her seat in the stern of the vessel, and the oarsman sat near the front end, pulling the oars at the front oarlocks. They boarded the skiff while fog hung low on the river just above the raft of logs, about five or six hundred feet long and one hundred and twenty feet in width, which was moored to the bank, near, if not at, the very apex of the bend at Nine-Mile Point. As the raft lay partly aground, only about half of it rested in the water.
The part which was in the water jutted out nearly at right angles from the shore, a distance of about 60 feet, into the river. The skiff was afterwards found, deposited on the top of the logs, on the edge of this projecting side of the raft, not over 35 feet from the shore. Photograph marked 'P1' shows the situation.
Bolds testified that after getting in the skiff he 'pulled out about middleways of the raft,' and was headed down the river to Protection Levee, on the opposite bank, and 'never heard any noise of the tug or whistle blowed at all; and so, in pulling, all of a sudden she said, 'Robert, look at that tug,' when I looked around and the tug was coming right on me. I pulled and hollered all I knew how, and jumped up and tried to check her headway, but she just run into us and upsetted us. ' Bisso made the following report of the accident:
'New Orleans, Nov. 5th, 1900.
'Messrs. Kelly and Youngblood, Local Inspectors, New Orleans, La.-- Sirs: I herewith respectfully report that while ascending the Mississippi river, on the tug Leo, at about 7 a.m., during a dense fog on the river, yet the tops of the trees were visible, and running under a slow bell, I sighted a skiff some fifteen or twenty feet in front of the tug. I immediately stopped and backed the boat at full speed astern. The skiff contained two persons, a young lady and a one-eyed negro, who was rowing the skiff. The tug came in collision with the skiff, shattering it, thereby throwing the occupants into the water. The mate of the tug jumped overboard to assist in the rescue of the parties, and at the same time a boat was lowered, but unfortunately the negro alone was saved. I have since learned that the name of the unfortunate lady who was lost was Miss Sophie Quinette. All possible means were used to preserve life. The tug at that time was about 150 feet from the right bank, just above Nine-Mile Point.
'Yours truly, . . . Joseph A. Bisso, Master.'
The Leo left her landing in New Orleans, at the foot of Walnut street, nine miles from Nine-Mile Point, early that morning, to go to Twelve-Mile Point for a tow. After reaching the ferry landing, she quartered across the river until near Westwego, on the opposite bank, and then went up on that side towards Nine-Mile Point. The Leo is an ocean-going, iron-hull, steam tug, 83 feet in length, 19 feet in beam, and 7 feet draught. She had one compound condensing engine, of 16 and 28 inches diameter of cylinder, and 20' stroke of piston, and one boiler, 14 feet in length and 117 inches in diameter, and was allowed a steam pressure of 127 pounds to the square inch. The record does not show her horse power. All the evidence shows, however, as her master states, that the Leo was 'a powerful boat'; an 'ocean-going, steam, iron tug.' Her propeller sat rather low in the water, and being driven by a low-pressure engine, she made less noise when in motion than high-pressure boats. She ordinarily carried 90 pounds steam pressure. Her pressure that day was from 90 to 95 pounds. Her ordinary speed was from four to five miles an hour, but she could make twelve miles an hour. The testimony of the witnesses is quite conflicting as to her speed that day. Her master swears that her speed was between three and four miles an hour. Her engineer testifies that it could not have been more than four or five miles an hour. Some of the crew testified she was not going 'over three to three and a half miles an hour.' Other witnesses, who are not shown to be interested in any way, say the 'Leo was not going over four miles an hour at the outside.' Other witnesses, more numerous, and most of them disinterested, testify that 'the Leo was going at a pretty fair rate of speed'; that 'she was going pretty fast.' Some of them fixed the speed at 'seven or eight miles an hour'; and others, 'eight or nine miles an hour.' The witnesses as to the giving of fog signals are generally the same witnesses who testified as to speed, some affirming and others denying that fog signals were blown. In the view the court took of the matter, it is unnecessary to detail the testimony on that point.
During the voyage of the Leo a low-lying fog hung over the river, and there was no breeze. The fog was quite thick, and rose 8 or 10 feet above the water. It was densest at the water, and gradually grew thinner upwards. 'At times it would raise, and at times lower. Sometimes a little gush of it would come
up, and then it would lower. ' The lookout stationed at the stem of the bow, which stood about 10 feet above the water, could not see objects ahead in the fog, like small water craft, which sat low in the water. Persons standing in her pilot house were from 20 to 25 feet above the water, but could not see an object like a skiff in the water more than 25 or 30 feet ahead, although the tops of the trees on either bank were visible from the pilot house. As the Leo was nearing the point of Nine-Mile Point bend, Capt. Bisso discovered ahead, not over 25 or 30 feet distant, a skiff in which Miss Quinette and the negro oarsman were seated. The captain immediately gave the signal to back the tug astern at full speed, which order was at once obeyed, and shouted that some one...
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