Eldridge v. The Rose Culkin

• Decision Date: 22 July 1892
• Citation: 52 F. 328
• Parties: THE ROSE CULKIN. v. THE ROSE CULKIN. THE A. C. NICKERSON. ELDRIDGE CULKIN v. THE A. C. NICKERSON.
• Court: U.S. District Court — Southern District of New York

52 F. 328

THE ROSE CULKIN. THE A. C. NICKERSON. ELDRIDGE v. THE ROSE CULKIN.

CULKIN v. THE A. C. NICKERSON.

United States District Court, S.D. New York.

July 22, 1892

Carpenter & Mosher, for Nickerson.

Alexander & Ash, for the Rose Culkin and petitioner.

BROWN District Judge.

Between 3:30 and 4 P.M. of October 27, 1891, as the schooner 'Rose Culkin' bound down the bay from the Erie Railroad dock at Jersey City, was approaching Ellis island she came in collision with the steam tug Nickerson, striking with her stem the port side of the tug at an angle of from five to eight points. Both received damages, for which the above libel and cross libel were filed. The wind was blowing such a gale from the northwest, or west northwest, that a lighter came down to the westward of the schooner sailing under bare poles. The schooner was light, about 74 feet long and sailing under a jib, foresail and two reefed mainsail and she was going through the water at the rate of about 10 knots, or against the flood tide about 8 knots by land. The tug had taken the barge Kodiak in tow on a hawser of 18 fathoms from the anchorage ground south of Ellis island, and was heading about east for the Battery nearly across the tide, and going at the rate of about 2 knots through the water. The place of collision was near the edge of the anchorage ground a little to the northward and eastward of Ellis island, probably about 200 yards below the permanently anchored barge above Ellis island, and less than 100 yards to the eastward of that barge. The witnesses for the schooner contend that the collision was brought about by a sudden turn of the tug to starboard across the bows of the schooner, when the latter was 100 feet distant. The tug's witnesses deny this, and content that the collision happened because the schooner, after heading so as to pass to the westward of the tug and tow, paid off to the eastward in the attempt to cross the bow of the tug when very near.

1. The schooner had come down about one-third the distance across from the Jersey shore, and, as her witnesses say, was heading towards Owl's Head. But in her three different pleadings it is stated that her course was southwest, which is three points more to the westward than the course making for Owl's Head. If instead of being upon a southwesterly course, she was making for Owl's Head, without any change of course, as her witnesses contend, she must have gone at least 300 yards to the eastward of the place of the collision.

The ordinary course down the bay is south by west one-half west; and that course also would have carried the schooner considerably to the eastward of the place of collision. To account for the collision at all, therefore, I must find that she was not heading as her witnesses say she was, but more nearly towards the southwest as her pleadings allege, and as the tug's witnesses also state; and such a general course would have carried her to the westward of the tug and tow as the latter's witnesses allege. The tug's course was necessarily about due east, interrupted but a short time by a little starboarding in accordance with a signal of two whistles given a few minutes before this collision to a large steamer which came down the bay and passed to the eastward. As the tug was bound for the East river and previously heading about due east, there is small probability that she at any time, with no apparent motive or necessity, turned from four to five points to the northward, so as to head to the westward of the schooner's southwesterly course. It is difficult to make out what Capt. Woglan means to testify to. He first saw her about 900 feet off, he first says; afterwards he says about four lengths off, or less than 300 feet. The tug, he says, was then heading for the Battery, and if she had kept her course she would have passed under his stern. Yet that course was nearly due east, and no further swing to the eastward is claimed in the schooner's pleadings. The claim that the collision was caused by the sudden porting of the tug when only 100 feet away, whereby she threw herself across the schooner's bow, is absurd. Going only about one fifth as fast as the schooner, the tug could not in any such space have materially changed her position. The apparent change of the tug was caused, I have no doubt, by the real change of the schooner's heading, as the other witnesses state. The whole case on the part of the schooner presents such contradictions and inconsistencies as to make it impossible to place much reliance on their testimony concerning her navigation.

The persons in the best position to judge of the course of the schooner, were the captain of the Kodiak, who was behind the rug, and the persons on the Raymond alongside the barge. They all testify that the schooner at some little distance away was heading towards or the westward of the tug and tow; that she luffed up somewhat in passing the anchored barge so as to go very near to it, and that had she continued that luff, she would have passed the tug and tow without difficulty to the westward; but that instead of doing this, she paid off again when near the barge apparently attempting to cross the bow of the tug, and thus brought about the collision. The account given by the schooner is so inexplicable and unreliable, that unimportant to determine what previous yawing, or what changes of heading before that had been made by the schooner, or whether her course when from one fourth to one half mile distant was such as to go to the eastward or to the westward of the tug and tow, about which the witnesses differ. The fact that she got so near to Ellis island from a position one third windward of the usual course down the bay. She was probably unsteady; and the fact that the schooner's master, lookout, and crew saw no steamer go down just before them, and only saw the tug when she was near and roused their attention by her whistles, proves great negligence and inattention in their navigation at such high speed, and in part explains the confusion and contradiction in their testimony. But the tug's narrative and the testimony of disinterested witnesses leave no doubt that after having approached near the tug and upon a course to the westward of the tug, the schooner brought on collision by a sudden change of her course and an attempt to cross the tug's bow. This was at her own risk and fixes the blame on her, because there was undoubted room to continue on her previous course to the westward of the tug and tow.

2. I do not think, under the circumstances, any fault can be ascribed to the tug. Though bound, under rule 20, to do all she could to keep out of the way of the schooner, she was not bound to do more than was possible. But what is possible to a tug and tow going at the rate of two knots through the water, as respects a schooner coming down near the line of her course at the rate of ten knots? The ordinary rule presupposes an ability to keep away, and a relative freedom of motion in the steamer as respects the sailing vessel. When those conditions are mainly reversed, the exceptional case arises that is provided for by rule 24. The A. P. Cranmer, 1 F. 255; The C. F. Ackerman, 9 Ben. 179. Under such circumstances, when the tug has comparatively small power to make any change in her position, in respect to a sailing vessel at high speed, it is the duty of the sailing vessel seasonably to shape her course with reference to the situation of the tug and tow, and not to rush blindly into danger, or into such close quarters that it is practically impossible for the tug to avoid accident. The general testimony on the part of the schooner indicates that her master, from the time he saw the tug, intended to act on this principle; but that from miscalculation through not observing the tug and tow seasonably, or by undertaking to run too close, or at the last by some vacillation or change of purpose, he brought about the collision by attempting to cross the tug's bow. Both the master and the lookout of the schooner ascribe the collision to the change made by the tug when not over a hundred feet off. This apparent change as I have already said, was the schooner's change; not the tug's. Nothing the tug could possibly have done within any such small distance could have contributed anything material either to bring on, or to avoid, the collision. And before the schooner's change, so certain is it that she was working up close to windward towards the southwest, that I am satisfied the best the tug could do to keep out of her way was to pull off to the eastward, as she did, as fast as she could. The course when heading for the Battery was about east by north, instead of northeast by east as stated by the captain. But this error is immaterial. I must, therefore, hold the collision to have occurred by the fault of the schooner.

3. The amount of damages sustained by the Nickerson being in excess of the amount in the registry realized from the sale of the Culkin, viz., $888.05, it has been objected both in the answer to the petition and on the argument, that the petitioner cannot limit her liability to that sum, through a surrender and sale of the vessel, because immediately after the filing of the Nickerson's libel, the petitioner, as owner of the Culkin, gave a stipulation in that cause for $3,500, as the agreed value of the vessel; and having afterwards repaired her, thereafter employed her in making a number of voyages between New York and Rockaway during about seven weeks prior to the filing of the petition to limit liability, with the offer to surrender the vessel; this being nearly four months after the libel was filed.

The stipulation for value in the sum of $3,500, seems on the evidence to have been given unadvisedly, and in...