Clyde-Mallory Lines v. New York Cent. R. Co.

• Decision Date: 06 April 1936
• Docket Number: No. 286.,286.
• Parties: CLYDE-MALLORY LINES v. NEW YORK CENT. R. CO.
• Court: U.S. Court of Appeals — Second Circuit

83 F.2d 158 (1936)

CLYDE-MALLORY LINES v. NEW YORK CENT. R. CO.

No. 286.

Circuit Court of Appeals, Second Circuit.

April 6, 1936.

Bigham, Englar, Jones & Houston, of New York City (Leonard J. Matteson and Andrew J. McElhinney, both of New York City, of counsel), for appellant.

Burlingham, Veeder, Clark & Hupper, of New York City (Chauncey I. Clark and Stanley R. Wright, both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

This case arises out of a collision in the North River on the evening of November 13, 1929, between the steamer Neches, bound out for Tampa, and the New York Central tug No. 31, bound up stream, with a carfloat on her left hand. The judge found the tug alone at fault and entered a decree upon the libel of the Neches, dismissing the tug's cross-libel. The collision was at about 5:42 p. m., one thousand feet off the Manhattan pier ends opposite the Pavonia ferry rack, between Piers 19 and 20; it was dark, but the night was clear enough for all practical purposes. The Neches had left her berth, Pier 45, at 5:30, and had got under way headed down stream at 5:33 or 5:35. Her course was about eight hundred feet off the pier ends and she was stemming a flood tide of about two knots. When off Pier 26, or thereabouts, she overhauled the tug, Bush, with two carfloats in tow, bound out and nearer the centre of the stream. After exchanging signals of two blasts, she passed the Bush on her right hand, and found herself faced by the Pavonia ferry, which was crossing from New Jersey into her slip. Being the giving-way vessel as to the ferry, she went under her stern by a quick swing to the right, and in so doing passed so close across the bows of the Bush as to force her to stop and reverse to avoid collision. Not until she had come out from under the ferry's stern did she see the Central tug and tow whose green light and towing lights then appeared on her left bow; at this time the vessels were about one thousand feet apart. The Neches sounded a single whistle, to which the tug blew an alarm, whereupon the Neches backed with a right rudder, and the tug kept on, hoping to clear. The collision was a glancing blow on the tug and carfloat's right quarter.

The No. 31 had made up her tow off the north side of Pier 17. She got under way about two hundred feet from the pier ends and was moving on a diagonal course for the middle of the river, where she meant to turn north to her destination upstream. She saw the Bush and some other lights behind her, which turned out to be the Neches, while she was making up the tow, or certainly as soon as she got under way. She exchanged two blast signals with the Bush, getting consent to cross her bows; she says that she gave the Neches a similar signal a little later, and we will assume that she did, though, as the judge finds and we agree, the Neches never accepted. The two versions do not substantially differ in other respects, except as to the position of the collision, for which we take the judge's finding. He thought that it was a crossing situation in which the Neches had kept her course and speed, and that the tug failed in her duty to keep out of the way.

We cannot absolve the Neches, quite aside from her speed which was probably too great in any event. She failed to make out the tug and tow until she was at most not more than four lengths away and when the situation was already in extremis. It is idle to put forward the ferry as an excuse; she should have seen the tug long before the ferry came between them. The only possible excuse for her is that, as holdingon vessel, she would have had to hold her course and speed, if she had made out the tug in time, and that this is what she did in fact. While she did not indeed hold her heading, choosing rather to go under the stern of the ferry than to slow and let her pass, heading is not "course" under the crossing rule, as we have often declared. The Hallgrim (C.C.A.) 20 F.(2d) 720; Commonwealth & Dominion Line v. U. S. (C.C.A.) 20 F.(2d) 729. This was acutely presented in The Hoboken (C.C.A.2) 59 F. (2d) 993, which concerned a number of vessels meeting in the North River, some going up and down and one crossing. We held that from the rule that to a giving-way vessel the course of the holding-on vessel is what ought reasonably to be expected of her, it followed that if the holding-on vessel was herself a giving-way vessel as to the third vessel, her course was what she was bound to do to keep out of the way of that third vessel. This sounds complicated, but really it is not; it means no more than that the giving-way vessel is to assume that the holding-on vessel will "hold on" in the manner that her own duties to others require; an entirely practical rule. Since the Neches might go under the ferry's stern, her apparent course was not a straight course. Nor...