Erie & Western Transp. Co. v. City of Chicago

• Decision Date: 04 January 1910
• Docket Number: 1,623,1,624.
• Citation: 178 F. 42
• Parties: ERIE & WESTERN TRANSP. CO. v. CITY OF CHICAGO et al. CITY OF CHICAGO v. ERIE & WESTERN TRANSP. CO. et al.
• Court: U.S. Court of Appeals — Seventh Circuit

178 F. 42

ERIE & WESTERN TRANSP. CO. v. CITY OF CHICAGO et al.

CITY OF CHICAGO v. ERIE & WESTERN TRANSP. CO. et al.

Nos. 1,623, 1,624.

United States Court of Appeals, Seventh Circuit.

January 4, 1910

Harvey D. Goulder and F. S. Masten, for Erie & Western Transp. Co.

Charles E. Kremer, for City of Chicago.

Rob't. J. Folonie, for Fitzsimons & Connell Company.

John C Shaw, for Pratt & Lambert.

F. M Brown, for British & Foreign Marine Ins. Co. and others.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

SEAMAN Circuit Judge.

The final decree in admiralty from which the present appeals are brought, arose out of a collision of the steamer Conestoga with a waterworks crib, erected by the city of Chicago, in the navigable waters of Lake Michigan, northeasterly of the harbor entrance. The steamer, laden with a cargo of general merchandise and bound for Chicago, was approaching port after midnight in a dense fog, when she struck the crib and received injuries which caused her to founder before reaching a dock.

For recovery of damages to the cargo, the Erie & Western Transportation Company, owner of the steamer, as the representative of cargo interests, filed a libel in personam, charging the city of Chicago, together with Fitzsimons & Connell Company (contractors for erection of the crib) with fault and liability for the disaster; and various cargo owners and insurers subsequently intervened for direct recoveries. On petition of the city, the appellant, Erie & Western Transportation Company, was joined as defendant to such libel; and it thereupon filed a cross-libel, in its own right as owner, to recover damages suffered by the steamer. Issues were joined upon charges and countercharges of fault for the disaster, and the testimony thereunder was heard in open court, resulting in a finding and interlocutory decree, in substance: That the collision arose through joint fault on the part of the city of Chicago and the Conestoga; that the city was chargeable for failure to give audible signals from the crib, and the steamer was chargeable for excessive speed in approaching the harbor in a fog; and that Fitzsimons & Connell Company, as contractors for the crib work, had released possession to the city, and were not answerable under the libel, cross-libel or interventions.

The issues of damages to cargo and steamer were referred to a commissioner, to hear the testimony, ascertain and report the various amounts attributable to the collision, and upon report thereof, with exceptions filed, the final decree was entered. It approves the report, which fixes the aggregate of damages, to the steamer at $25,674.37, and to the cargo at $48,308.51, allows interest at 5 per cent. on the several amounts, and adjudges: (1) Recovery against the city of Chicago, in favor of the cargo representatives respectively, for such cargo damages and interest, with right reserved to the city to recoup one-half thereof 'from whatever sum may be due from said respondent, city of Chicago,' to the owner of the steamer; (2) recovery against the city and in favor of the Erie & Western Transportation Company, as owner of the steamer, for one-half of the amount (including interest) fixed for damages of the steamer, subject, however, to recoupment as above provided; (3) that the respondent, Fitzsimons & Connell Company, 'be dismissed with its costs;' and (4) that each of the present appellants pay one-half of the costs of suit.

In No. 1,623, Erie & Western Transportation Company appeals from this decree, contending that the trial court erred, primarily in the finding of negligence on the part of the steamer and rulings predicated thereon; also assigning error for dismissing Fitzsimons & Connell Company and for excluding certain claims from allowance. In No. 1,624, the city of Chicago appeals and assigns error on various rulings, with its main contentions: (a) That negligent navigation of the steamer was the sole cause of the collision; (b) that erection of the crib, as located, was authorized by the War Department, without requiring signals to mark its presence, and sufficient warning was furnished in fact by a signal light; and (c) if other signals were needful, the contractors, Fitzsimons & Connell Company, had not completed their contract and were alone chargeable thereunder for any fault.

Both appeals are presented in a single record, were submitted together in briefs and oral argument, and such material questions as arise for solution under either appeal are considered in this opinion; and they are taken up in the order which seems to us preferable, irrespective of the order of their presentation in one and the other appeal.

1. In the nature of the case, the primary inquiry is whether an actionable neglect of duty is established, in the undisputed failure of either respondent named in the libels to give audible signal from the crib while it was enveloped in fog. This waterworks crib was located, under authority from the War Department, in navigable waters of Lake Michigan and within the roadstead of commerce to and from the port of Chicago; was erected (under contract) on behalf of the city of Chicago, in circular form, 112 feet in diameter, with masonry work extending 27 feet above the water level and banded with steel. It was surmounted by one-story brick buildings and a steel light tower about 60 feet in height. At the time of the collision, the structure was completed, except in minor particulars, and was occupied by a cribkeeper and workmen, all employed by the city and asleep in their quarters. A temporary lantern was in use for a signal light, was lighted and suspended in the tower, and no other signal was displayed or given to mark the location of the crib.

The Conestoga was approaching the harbor entrance, on her regular course from Milwaukee, about midnight, in a dense fog, when the crib light above mentioned was sighted by her lookout, 'almost ahead and very close aboard,' giving the first warning of proximity of the crib. As the steamer was then within about 150 feet of the crib-- less than her length away-- efforts to avoid collision, by putting the helm hard astarboard and reversing the engine, were unavailing. The testimony is substantially undisputed that the light was insufficient to be discoverable sooner in the fog then existing, and that 150 feet was the utmost distance the location of the crib could then be observed. We believe this warning to be plainly insufficient to enable a steamer of the class of the Conestoga (265 feet in length), running at her lowest practicable speed for fair control and headway, to clear the crib, thus standing directly ahead. To meet such contingency, therefore, was it the duty either of the city or contractor to provide signals of longer reach?

The War Department 'permit,' in evidence, is the only authorization for locating the crib in navigable water (Act July 13, 1892, c. 158, Sec. 3, 27 Stat. 110), and it provides, as a condition of allowance:

'That suitable lights and such aids to navigation as may be required by the United States Lighthouse Establishment shall be maintained on the crib.'

In the testimony for the city, it is stated by the engineer in charge of the work that no signals were prescribed by the Lighthouse Establishment; and it is contended, thereupon, that none were required under the circumstances-- in effect, that the structure was a lawful obstruction, through the permit (recognized by statute), and no duty arose for protection of navigation until means therefor were expressly named and ordered. Whatever may be the force of statute and permit by way of authority to maintain the crib, this contention is without sanction, as we believe, in any reasonable view either of the provisions referred to, or of the well-recognized paramount rights of commerce to use navigable waterways and have needful warnings to guard against obstructions placed therein.

The crib was a structure so placed for the purposes of the city, and with its creation the obligation was assumed to provide such means of warning as were well-known requirements for the protection of navigation, when darkness, fog, or thick weather prevented reasonable observation of the structure from an approaching vessel; and this with or without specific directions in the permit or elsewhere. While a light was needful (and so recognized on the part of the city) to mark the location at night, it is established, both by testimony in this record and by precedents, that lights are ineffectual for fog signals, and that bells or other sounding means are the imperative and customary requirements for fog and thick weather signals. Moreover, the evidence further shows: That bells have long been provided and used as fog signals on all of several other cribs maintained by the city of Chicago in Lake Michigan; that each can be heard, when sounded in a fog, at a distance of a mile or more; that such a bell was for several months in place on the crib in controversy and used as a fog signal; that for some unexplained cause this bell was taken from its mountings, prior to the night of the collision and put out of use.

We are satisfied, therefore, that placing and maintaining the crib as located involves an obligation to provide thereon and give suitable fog signals when needful for safe navigation; that the collision in controversy arose through nonperformance of such duty; and that the party responsible for the failure is answerable for resulting damages.

2. Under each appeal error is assigned for releasing the contractor, Fitzsimons & Connell Company; the appellant city contending that any negligence charged in the libel or cross-libel is attributable alone to such contractor, under the terms of the contract let by the city, and...