The Lisbonense

• Decision Date: 13 December 1892
• Citation: 53 F. 293
• Parties: THE LISBONENSE. v. LA COMPAGNIE GENERALE TRANSATLANTIQUE. LA CHAMPAGNE. SINGLEHURST et al.
• Court: U.S. Court of Appeals — Second Circuit

53 F. 293

THE LISBONENSE. LA CHAMPAGNE. SINGLEHURST et al. v. LA COMPAGNIE GENERALE TRANSATLANTIQUE.

United States Court of Appeals, Second Circuit.

December 13, 1892

Subsequent to the denial of the motion to dismiss, the depositions in question were by agreement of the counsel eliminated from the controversy, and the new proofs to be offered consist only of two items:

First. A transcript of the engine telegraph dial plate on board La Champagne, showing that provision was made for three different speeds while under way, namely 'lentement,' (slowly,) 'demi-vitesse,' (half speed,) and 'toute-vitesse,' (full speed.) This was offered for the purpose of showIng that La Champagne could have slackened her speed from half speed to slow.

Second. The original books kept by the French consulate in New York entitled 'Registre des Actes de la Navigation,' containing the 'Rapport de Mer' made on December 9 1890, by the master and certain of the officers and crew of La Champagne, and also by her pilot and the master of her tug Assistance, and also a supplemental series of statements made on December 12th by the signers of the original 'Rapport de Mer' in consequence of a sharp contradiction contained in the original 'Rapport de Mer' between the French-speaking affiants, on the one side, and the English-speaking affiants, (De Vere, Sandy Hook pilot, and Porter, tug captain,) on the other.

Sidney Chubb, (R. D. Benedict, advocate,) for appellant.

Jones & Govin, (Edward K. Jones, advocate,) for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

The facts in this case will best be presented by stating the findings of the district judge:

On December 7, 1890, the Lisbonense, a steamer 270 feet in length, 32 feet beam, and drawing 19 1-2 feet, was bound into the port of New York on a voyage from the Brazils. La Champagne, a steamer 503 feet long, 51 1-2 feet beam, and drawing 25 1-2 feet of water, was bound out from the same port. The latter, on account of her deep draught, was proceeding out around the Southwest Spit by way of the main ship channel and Gedney's channel. The former was coming in by way of the south channel and the swash, the axis of which crosses the main ship channel at an angle on the southwest side of 10 3-4 points. Each vessel was in charge of a pilot, and the master of each was on deck. The night was clear, but dark. The tide had been running ebb two hours, setting to the east or southeast with a velocity of between 2 and 3 knots. The wind was fresh from the northwest. La Champagne, in consequence of fog, had been detained over night in the lower bay, and resumed her voyage about 4 A.M. She passed the meridian of the Sandy Hook lights at 5:20 A.M. As she passed she burned her private signal torches, and soon after burned a blue light for the pilot boat outside to receive her pilot. Just prior to the burning of these signals, while she was on the regular main channel course, which is E. by N. 1-4 N., the red and white lights of the Lisbonense were seen about two points on the starboard bow. About the same time the green and white lights of La Champagne and her signal torches were observed by the Lisbonense, without knowing or noticing their precise colors or character, or understanding what line or what vessel they indicated. The Lisbonense was then on the usual course up the south channel about N.W. 3-8 N. The vessels at the time of sighting were about 2 miles apart, and respectively a mile and a mile and a half from the point of collision. The speed of La Champagne was about 12 knots over the ground; the 10 1-2 knots derived from her engines, running at 35 revolutions, being supplemented by wind and tide. The speed of the Lisbonense, allowing for retardation by wind and tide, was a little less than 7 1-2 knots. The captain of La Champagne, upon sighting the Lisbonense, observed her carefully with the alidade to see whether her bearing changed or not in reference to the necessity of taking precautions against collision. No change was apparent. When the pilot of La Champagne signed the Lisbonense, he ordered the engine to slow, (an order which was not transmitted, though he believed it to be carried out,) and 'ported a little to-- as we call it-- 'shave' along the southerly side of the channel, and about that time they (the Lisbonense) blowed the whistle. ' This was immediately answered by one whistle from La Champagne. The vessels were then about three fourths of a mile apart. The district judge finds that La Champagne 'ported her helm so as to change her heading about one quarter of a point to starboard. ' That she did make such change is plain upon the evidence, but it seems equally plain that such change and the subsequent steadying were complete before the exchange of whistles. The evidence of the captain of La Champagne would support the inference that this was after the signals, but is not so positive as that of the pilot, who places it before, while the cross libel alleges that La Champagne did not then port, (i.e. after signaling,) and the answer of the latter does not aver that she did then port, but alleges that continuously 'until the collision her course was that of the line of the (main channel. ' We are satisfied, however, as was the district judge, that the course of La Champagne was in the southerly part of that channel, and that in an ebb tide, with northwest wind, to have headed more to the starboard would have exposed her to serious risk of going ashore. She kept herself on the right-hand side of the channel as much as was prudently possible, but she put herself on that side before the signals were exchanged. The Lisbonense ported 'so as to change her heading half a point or a point only, whereupon she steadied her helm upon the proper course to go up the swash channel. ' The district judge finds that 'thereby she resumed substantially the same course she was on before.'

The appellant assigns this finding as error, contending that she swung from half a point to a point to starboard, and was steadied on that new course. An examination of the evidence and of the chart satisfies us that the district judge was correct in finding that upon giving her signal she made no substantial change in her course. Disconnected references to the evidence of those on board might seem to support the appellant's contention; but, taken as a whole, that evidence indicates that she adhered to her intention-- manifest from the moment she entered the south channel-- to hold her course by the south and swash channel lights, (the two channels are in the same course,) and the location of the collision confirms this conclusion: Had she steadied on the course to starboard, she would have crossed the axis of the main channel to the eastward of the place of collision, proceeding, not as her captain puts it, 'upon the proper course to go up the swash channel,' but toward the Romer shoals. The captain of La Champagne continued carefully to watch the Lisbonense, and, judging maneuvers necessary, stopped his engines, and a few seconds afterwards reversed at full speed, at the same time giving a signal of three whistles, which announced his reversal to the Lisbonense, and soon after repeated the same signal. The Lisbonense was all the time going at full speed and she continued at full speed until collision. The district judge finds the distance between the two vessels when the three whistles of La Champagne were blown to be from 1,500 to 2,000 feet. Just before collision the Lisbonense's helm was put hard astarboard to ease the blow, which cut into her counter about two feet. The district judge found the Lisbonense in fault because, having given a signal of one whistle, she did not conform her course thereto, and held La Champagne free from fault. When the vessels sighted each other, La Champagne had the Lisbonense on her starboard hand.

We do not understand that either side contends that the locality was not within coast waters, (covered by chapter 354 of the Laws of 1885,) where the revised international rules are to be followed, in which respect the case resembles that of The Aurania and The Republic, 29 F. 98, and does not call for an exact determination of the line where the 'coast waters' end and the 'harbor' of New York begins. The sixteenth article of those rules provides that if two ships under steam are crossing, so as to involve risk of collision, the ship which has the other on her own starboard side shall keep out of the way of the other. Had she been in the open ocean, La Champagne might have done this by coming to starboard, so as to allow the Lisbonense to go by,-- a maneuvre, as her captain says, 'so simple that there is no need of mentioning it,' or she might have slowed or stopped so as not to reach the course of the Lisbonense till the latter had passed on, out of danger. We are satisfied however, that the existing conditions of wind and tide, the depth of water in the south channel, the length and draught of La Champagne, were special circumstances involving such immediate dangers of navigation as would (under article 23) warrant her master in avoiding the particular maneuvre which compliance with the sixteenth article would naturally suggest. We are not satisfied, however, that down to the time when whistles were exchanged the navigators of the Lisbonense either knew, or were fairly chargeable with knowledge of, the fact that the existence of such special circumstances was going to prevent La Champagne from conforming her navigation to the requirements of article 16. We are not prepared to assent to the proposition contended for by the appellee, that, because deep-draught steamers find it necessary to take the main and Gedney channel course, it is to be assumed that all...