New York & Cuba Mail SS Co. v. United States

• Decision Date: 10 January 1927
• Docket Number: No. 135.,135.
• Citation: 16 F.2d 945
• Court: U.S. Court of Appeals — Second Circuit
• Parties: NEW YORK & CUBA MAIL S. S. CO. v. UNITED STATES. THE ESPERANZA.

16 F.2d 945 (1927)

NEW YORK & CUBA MAIL S. S. CO. v. UNITED STATES THE ESPERANZA.

No. 135.

Circuit Court of Appeals, Second Circuit.

January 10, 1927.

Emory R. Buckner, U. S. Atty., of New York City (Charles E. Wythe, and Horace M. Gray, Sp. Asst. U. S. Attys., both of New York City, of counsel), for the United States.

Burlingham, Veeder, Masten & Fearey, of New York City (Chauncey I. Clark and Eugene Underwood, Jr., both of New York City, of counsel), for New York & Cuba Mail S. S. Co.

Before HOUGH, MANTON, and MACK, Circuit Judges.

MANTON, Circuit Judge.

The vessels referred to in these libels collided at sea, off Barnegat, N. J., on the night of February 14-15, 1918, while navigating in a dense fog. Both were damaged, and libels have been filed to recover for their respective losses. The Conner is a torpedo boat destroyer of the United States Navy, about 350 feet long and 30 feet beam, with a draft of 8½ feet and a displacement of 1,140 tons. She was equipped with four boilers, triple screws, turbine driven, with 20,000 shaft horse power. Her maximum speed was 30 knots. On the forenoon of February 14, 1918, she left Philadelphia, Pa., to proceed to Newport, R. I. She was a new vessel, and her orders required her to make four hour test runs on her cruising turbines en route to Newport at 13, 16, 20 hours, respectively. At 9:30 p. m. fog set in, which continued up to the time of the collision at 12:11. The Esperanza, carrying passengers and general cargo, left Brooklyn on the afternoon of February 14, bound for Cuba and Mexican ports. She was a twin screw steamer, about 4,200 gross tons, 341 feet long, 47.7 feet beam, with a maximum speed of 13.6 knots. After leaving her port, she continued at her maximum speed until about 10:25 p. m., when she reduced to half speed, and this speed continued until the time of the collision. The rough log entries of the Esperanza give her distance by taffrail log from Scotland Light vessel at 10:15 as 29.2 miles. An entry at 10:25 states, fog, running at half speed; at 10:30, dense fog, running slow; at 12 o'clock, total run of the taffrail log is 40.9, making a distance of 11.7 miles covered in 1¾ hours between 10:15 and midnight. This gave a speed of 6.68 knots which was her average speed. At 12:08 a fog signal from the Conner was heard by the Esperanza forward of the beam and on the starboard bow. This was three minutes before the collision. The Esperanza continued on her course and did not stop her engine until the collision. She continued blowing her fog signals at the same intervals, but did nothing more. No further fog signals were heard from the Conner until just about the time she came out of the fog and the vessels collided, when another long blast was heard from the Conner. The Conner struck the Esperanza a glancing below on the starboard side and disappeared in the fog. The Esperanza put about, headed back for New York, made her port without assistance, and was there repaired.

Article 16 of the International Rules provides that "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." Comp. St. § 7854.

Both vessels violated this rule. Fog signals were heard by the navigators of each. The Conner's commander heard two separate whistle signals, both from the Esperanza. The Esperanza's commander also heard the whistle of the Conner. In The Selja, 243 U. S. 291, 37 S. Ct. 270, 61 L. Ed. 726, the Supreme Court pointed out that the first paragraph of this rule gives to the navigator discretion as to what shall be moderate speed in fog, but the command of the second paragraph, above quoted, is imperative that he must stop his engines when the conditions described confront him. We have been firm in adhering to the obligations of this rule. See The Easton (C. C. A.) 239 F. 259; The St. Louis (C. C. A.) 98 F. 750; The Delaware (C. C. A.) 213 F. 214; The Suffolk (C. C. A.) 258 F. 219; The No. 25 (C. C. A.) 266 F. 331. Excessive speed, in violation of the second paragraph, is sufficient upon which to rest responsibility of the vessel which violates the rule. The Esperanza clearly committed a violation of the statute, and the burden rests upon her for failing to show that her failure to obey the rule could not possibly have contributed to the collision. The Pennsylvania, 19 Wall. 125, 22 L. Ed. 148; The Suffolk (C. C. A.) 258 F. 219.

The bow of the Conner struck the Esperanza about abreast of the bridge. If the Esperanza had retarded her progress but a trifle in compliance with the rule, the Conner would have cleared. If she had stopped her engines when she first heard the fog signals, three minutes before the collision, she would not have reached the intersection of the Conner's course until the Conner had passed. For the same reason, the Conner is at fault. The excuses offered by her commander for not stopping are entirely irrelevant and insufficient. Article 16 was intended for the prevention of collisions at sea, and, to be of any effect, it must be construed to require the steamers to stop their engines when any sound, which is thought to be a fog signal of another vessel, is heard, particularly in a fog, which, as in this case, had prevailed for a sufficient length of time previous to the collision to cause navigators to be alert, so as to hear signals. Where the warning was received, or even where the commander thought he heard a whistle forward of his beam, that is enough notice of the proximity of a vessel forward of his beam, so as to cause him to comply with the rule. Reasonable prudence under the circumstances would dictate the urgent demand of the stoppage and reversal of the engines, in order that the vessel might be brought to a standstill as soon as possible. And even where...