The Delaware

• Decision Date: 02 March 1896
• Docket Number: Nos. 555 and 570,s. 555 and 570
• Citation: 40 L.Ed. 771,16 S.Ct. 516,161 U.S. 459
• Parties: THE DELAWARE
• Court: U.S. Supreme Court

161 U.S. 459

16 S.Ct. 516

40 L.Ed. 771

THE DELAWARE

Nos. 555 and 570.

March 2, 1896.

This was a suit in admiralty, instituted by Charles H. Winnett, the owner and master, and the crew of the tug Talisman against the steamship Delaware, to recover damages for a collision between these vessels, which occurred on September 16, 1893, about 10 o'clock in the morning, in Gedney's Channel, off Sandy Hook, at the outer entrance of New York harbor, and within three miles from land.

In the district court the Delaware was held solely in fault (61 Fed. 525), and a decree was entered against her for $21,318.70. Her owner thereupon appealed to the circuit court of appeals, which affirmed the decree of the district court as to the fault of the steamship, and certified to this court certain questions as to whether she was absolved from liability by the provisions of the act of February 13, 1893 (27 Stat. 445), entitled 'An act relating to navigation of vessels, bills of lading and to certain obligations, duties and rights in connection with the carriage of property.' This certificate was docketed as a separate cause. The owner of the Delaware thereupon applied for and was granted a writ of certiorari to bring up the whole record, upon the ground that the circuit court of appeals erred in failing to find contributory negligence on the part of the Talisman.

The first three sections, containing the material provisions of the act in question, commonly known as the 'Harter Act,' are printed in the margin.¹

J. Parker Kirlin, for appellant.

Harrington Putnam, for appellees.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

There are two questions involved in this case: First, whether the tug Talisman was guilty of a fault contributing to the collision; and, second, whether the Delaware is exonerated from liability under the act of February 13, 1893, known as the 'Harter Act,' by the fact that her owners had used due diligence to make her seaworthy, and provide her with competent officers and crew.

1. Gedney's Channel, in which the collision took place, is a dredged passage, about 1,100 feet in width, running from the open ocean in a direction about W. N. W. 1/4 W., and constituting the main entrance to New York harbor. It is defined by red buoys, bearing even numbers, along its northerly side, at intervals of 2,000 feet, and corresponding black buoys, bearing odd numbers, on the southerly side, at the same distance apart. Two iron can buoys, sometimes called 'fairway buoys,' the northerly one red and the southerly one black, mark the outer entrance to the channel. About a mile out to sea beyond the channel entrance an automatic whistling buoy marks the prolongation of the central axis of the channel. Directly outside the entrance is located the station pilot boat, which anchors near black buoy No. 1, and sends out small boats to take off pilots who have been taking vessels to sea through the channel. Within the bar at the other end of the channel the water widens, and the Swash Channel diverges from the main ship channel as shown in the following diagram:

Counsel upon one, if not upon both, sides have assumed, upon the authority of The Aurania and The Republic, 29 Fed. 98, and Singlehurst v. La Compagnie G en erale Transatlantique, 11 U. S. App. 693, 3 C. C. A. 539, 53 Fed. 293, that Gedney's Channel is within the 'coast waters of the United States,' and therefore that the vessels involved were subject to the revised international regulations of March 3, 1885 (23 Stat. 438). We think that they are mistaken in this assumption.

The international code for preventing collisions was first adopted by act of April 29, 1864, now incorporated into the Revised Statutes as section 4233, and was made applicable generally to the 'vessels of the navy and of the mercantile marine of the United States.' This code remained substantially unaffected by congressional legislation until March 3, 1885, when the revised international regulations for preventing collisions at sea were adopted by act of congress, and made applicable to 'the navigation of all public and private vessels of the United States upon the high seas and in all coast waters of the United States.' By section 2, all laws inconsistent with these rules were repealed, except as to the navigation of such vessels within the harbors, lakes, and inland waters of the United States. As to such waters, the original code of 1864 still remains in force, explained and supplemented by the rules of the supervising inspectors.

The act of 1885 did not attempt to draw the line between the high seas and the coast waters of the United States, on the one hand, and the harbors and inland waters on the other. Nor was it possible by any general legislation to do so. We are of opinion, however, that the dredged entrance to a harbor is as much a part of the inland waters of the United States, within the meaning of this act, as the harbor within the entrance, and that the real point aimed at by congress was to allow the original code to remain in force so far as it applied to pilotage waters, or waters within which it is necessary, for safe navigation, to have a local pilot. It is important that a pilot, while conducting a vessel in or out of a harbor, should not traverse waters governed by two inconsistent codes of signals; and, if there are to be two codes, the line should be drawn between the high seas and the inland waters, wherein the services of a local pilot are requisite for safe navigation. If, as has been suggested, ocean steamers were authorized or compelled to observe the new revised rules until their arrival at their docks, while vessels engaged in local traffic were observing the original rules, great confusion would result, and the probabilities of collision be materially increased. It is evident that all vessels running upon the same waters should be bound by the same rules and regulations in respect to their navigation.

Recent legislation has not only established the proper practice for the future, but has explained what must have been the intention of congress in passing the original act. By act of February 19, 1895 (28 Stat. 672), 'to adopt special rules for the navigation of harbors, rivers and inland waters of the United States,' these waters are declared to be still subject to the provisions of Rev. St. § 4233 (the original code), and to the regulations of the supervising inspectors (§§ 4412, 4413). By section 2 the secretary of the treasury was authorized and directed from time to time 'to designate and define by suitable bearings or ranges with light-houses, light vessels, buoys or coast objects, the line dividing the high seas from rivers, harbors and inland waters.' Pursuant to this authority the secretary of the treasury, on May 10, 1895, by department circular 95, designated and defined the dividing line between the high seas and the rivers, harbors, and inland waters of New York as follows: 'From Navesink (southerly) light-house N. E. 5/8 E., easterly, to Scotland light vessel, thence N. NE. 1/2 E. through Gedney Channel whistling buoy (proposed position) to Rockaway Point life-saving station.' The whole of Gedney's Channel is within this line.

This, of course, must be accepted as the dividing line as to all future cases; but as the secretary of the treasury was merely directed to carry out the existing law upon the subject, we think it should be treated as cogent evidence of what the law had been before, and we are therefore of the opinion that Gedney's Channel should be treated, for the purposes of this case, as belonging to the inland waters of the United States. We are the less reluctant inspectors' rules rather than the revised international that the pilots of both steamers appear to have acted in contemplation of the supervising inspectors's rules rather than the revised international rules and regulations.

The Delaware was an English tank steamship of 2,495 tons registered, 345 feet in length, and was engaged in the business of transferring petroleum in bulk from New York to London and Liverpool. She was returning to New York in ballast only, and had taken a duly-licensed Sandy Hook pilot, who was in charge of her navigation at the time of the collision. The Talisman was an ocean tug, 100 feet in length, and at the time of the collision was engaged in towing the station pilot boat Edmund Driggs, with a hawser 15 fathoms in length, from a point some distance to the northward of the northerly line of Gedney's Channel diagonally across the channel towards the pilot station outside of the black fairway buoy, on the southerly side of the channel.

During the morning of the collision the weather was cloudy and overcast until the Delaware got within three or four miles of the outer end of the channel, when a heavy rain squall came on which lasted for about ten minutes, during which time the vessels were lost to view of each other. About four or five minutes before the collision, and when the vessels were probably a mile or more apart, the squall passed over, and each vessel sighted the other, and kept her in sight from that time until the collision. As the squall passed over, the pilot of the steamship made the outer red buoy about half a point on his port bow, and thereupon starboarded one point, to bring the buoy upon his starboard bow, and was brought into the channel upon a true course of W. by S. At the same time the Talisman was entering the channel from the northwest, upon a course about S. S. E., and not far from a right angle to the course of the Delaware.

Without inquiring minutely into the respective maneuvers and courses of the two steamers, it is sufficient to say that they were approaching each other upon crossing courses, and that, under the nineteenth rule, the steamship, having the Talisman on her starboard side, was bound to keep out of her way. By rule 23 there was a corresponding...