In re Landi's Petition

• Decision Date: 23 June 1960
• Citation: 194 F. Supp. 353
• Parties: Petition of Alfred LANDI, Edward Mainieri and Mildred Mainieri, as Co-Owners of the Chris-Craft Sedan Cruiser Yacht, THE ESCAPE II, for exoneration from or limitation of liability. Alfred LANDI, Edward Mainieri and Mildred Mainieri, as Co-Owners of the Chris-Craft Sedan Cruiser Yacht THE ESCAPE II, Libellants, v. THE S.S. M. J. DERBY II, Diesel Tanker M. J. Derby, Inc., Claimant.
• Court: U.S. District Court — Southern District of New York

194 F. Supp. 353

Petition of Alfred LANDI, Edward Mainieri and Mildred Mainieri, as Co-Owners of the Chris-Craft Sedan Cruiser Yacht, THE ESCAPE II, for exoneration from or limitation of liability Alfred LANDI, Edward Mainieri and Mildred Mainieri, as Co-Owners of the Chris-Craft Sedan Cruiser Yacht THE ESCAPE II, Libellants, v. THE S.S. M. J. DERBY II, Diesel Tanker M. J. Derby, Inc., Claimant.

United States District Court S. D. New York.

June 23, 1960.

COPYRIGHT MATERIAL OMITTED

Bigham, Englar, Jones & Houston, New York City, for petitioners-libellants Alfred Landi, Edward Mainieri and Mildred Mainieri; Charles A. Van Hagen, Jr., and Donald M. Waesche, Jr., New York City, of counsel.

Foley & Martin, New York City, for claimant S.S. M. J. Derby II and Diesel Tanker M. J. Derby, Inc.; John H. Hanrahan, Jr., New York City, of counsel.

Cooper, Ostrin & DeVarco, New York City, for claimants Anne and Milton Peshkin, E. Schwartz and A. Karff, Ex'r of Ruth Yurgrau, Deceased; Richard Gyory, New York City, of counsel.

William Fried, New York City, for claimant Alfred Rutledge Nettles, Adm'r of Estate of Ruth Cochran Nettles, Deceased; Jacquin Frank, New York City, of counsel.

LEVET, District Judge.

These two proceedings are the result of a collision between the Chris-Craft Cruiser Escape II (hereinafter called the Escape) and the Coastwise Tanker M. J. Derby II (hereinafter called the Derby) which occurred in the East River between the Manhattan shore and the southern end of Blackwell's Island (Welfare Island) on May 20, 1956.

The first proceeding is that instituted by the owners of the yacht by petition, praying for a decree for exoneration from or limitation of liability arising out of the collision pursuant to Sections 183 to 189 of Title 46 United States Code Annotated.

The second proceeding is the action instituted by a libel in admiralty by the owners of the yacht against the tanker Derby, in rem, to recover for the damage to the yacht Escape.

The two proceedings were consolidated for purposes of trial.

Having examined the pleadings, briefs, proposed findings of fact and conclusions of law of the parties and having heard the testimony and other proof of the parties, I hereby make the following Findings of Fact and Conclusions of Law:

Findings of Fact

1. On May 20, 1956, petitioners-libellants, Mildred Mainieri and Alfred Landi, together with Edward Mainieri, were co-owners of the Chris-Craft cabin cruiser Escape.

2. By stipulation of all of the proctors for the parties hereto, Edward Mainieri, now deceased, was dropped from these proceedings both as a party petitioner in the limitation of liability proceeding and as a party libellant in the libel filed against the Derby. (The exact effect of this is not here determined.)

3. By stipulation of all of the proctors for the parties hereto, the libel filed herein was amended to bring in the Fireman's Insurance Company of Newark, New Jersey as a party libellant.

4. Libellant, Fireman's Insurance Company of Newark, New Jersey, is a corporation organized and existing under and by virtue of the laws of the State of New Jersey, with an office and place of business at 123 William Street, New York, N. Y. Prior to May 20, 1956, said insurance company had issued a policy of hull insurance covering the Escape and by reason of the payments made to its assured arising out of this collision has become subrogated to the rights of the assured to the extent of its payment.

5. Claimant, Diesel Tanker M. J. Derby, Inc., is a corporation organized and existing under and by virtue of the laws of the State of New York, and on May 20, 1956 was the owner of the tanker Derby.

6. The Escape is a wooden hulled Chris-Craft cabin cruiser, 33 feet long, with a 10 foot beam, powered by two 105 h. p. engines. On May 20, 1956 all of her engines, steering gear and navigational equipment were working properly and the vessel was in all respects seaworthy.

7. The Derby is a steel hulled tanker, 180 feet long with a pilot house located 131 feet 5 inches aft of the bow.

8. On May 20, 1956, Anne Peshkin, Milton Peshkin, Ruth Yurgrau, Ruth Johnson, Ruth Nettles and Alfred Landi boarded the Escape at the 79th Street Yacht Basin, located at 79th Street and the Hudson River. The Escape proceeded north in the Hudson River, thence into the Harlem River and then headed south in the East River. It was a sunny, clear day with little wind and excellent visibility. The tide in the East River was setting to the north and between Blackwell's Island and the Manhattan shore was flowing at a speed of approximately 4 knots.

9. The Escape proceeded southerly in the East River maintaining a course parallel to the banks of the river in about midstream. Alfred Landi was at the steering wheel of the yacht and in charge of its navigation. When the Escape was in the vicinity of 60th Street, just to the north of the Queensboro Bridge, Landi reduced the engine speed on both engines from 2,000 revolutions per minute to 1,500 revolutions per minute. At the reduced speed the Escape was proceeding at about 2½ knots over the bottom.

10. When the Escape was in the vicinity of 55th Street proceeding at a speed of about 2½ knots over the bottom about in the center of the river, a yacht called the An-Ge overtook and passed the Escape on the Escape's starboard side. Alfred Landi turned the Escape to starboard in order to take the wake of the An-Ge on the Escape's bow. Shortly thereafter, Landi turned the Escape to port so as to straighten out and proceed down river. There was no change in speed during this operation.

11. The Derby was also proceeding down river further to the north of the Escape but proceeding faster than the Escape. The distance between the Derby and the Escape at the time of the slight alteration in the course of the Escape was about 150 yards.

12. The Derby proceeded downstream almost directly astern of the Escape, rapidly overtaking that vessel. Shortly after 4.00 P.M., with the Escape proceeding at a speed of about 2½ knots over the bottom on a course almost parallel to the banks of the river and with the bow of the Escape pointed slightly to the port, Ruth Yurgrau noticed a ship a few feet astern. Immediately thereafter the starboard bow of the Derby struck the transom of the Escape at its port stern corner, causing the Escape to list heavily to starboard. The starboard bow of the Derby rubbed along the port side of the Escape. The Escape was carried to the south on the starboard bow of the Derby for a considerable distance.

13. The collision occurred about off 50th Street. The Escape had not altered course from the time she turned to go downriver after taking the waves of the An-Ge on her bow until the collision. The speed of the Escape had not been changed from the time she reduced speed at 60th Street until the engines were placed full ahead seconds prior to the collision.

14. At no time prior to the collision did the Derby sound any whistle signals. No one was stationed on the tanker's bow. At no time prior to the collision, as the Derby was overtaking the Escape, did the Derby change her speed or alter her course.

15. The navigator of the Derby had not seen the Escape prior to the collision and was not aware that a collision had occurred until some minutes after the event had occurred.

Discussion

The conduct of the two vessels involved in this collision as they proceeded down the East River was governed by the Inland Rules of the Road, Act of June 7, 1897, 30 Stat. 96, 33 U.S.C.A. § 154 et seq.

The yacht Escape was a "steam vessel" within the definition of the Act, which stated that the words "steam vessel" shall include any vessel propelled by machinery.

The Inland Rules of the Road applicable to this overtaking situation are as follows:

Article 18, Rule VIII, 33 U.S.C.A. § 203:

"Rule VIII. When steam vessels are running in the same direction, and the vessel which is astern shall desire to pass on the right or starboard hand of the vessel ahead, she shall give one short blast of the steam whistle, as a signal of such desire, and if the vessel ahead answers with one blast, she shall direct her course to starboard; or if she shall desire to pass on the left or port side of the vessel ahead, she shall give two short blasts of the steam whistle as a signal of such desire, and if the vessel ahead answers with two blasts, shall direct her course to port; or if the vessel ahead does not think it safe for the vessel astern to attempt to pass at that point, she shall immediately signify the same by giving several short and rapid blasts of the steam whistle, not less than four, and under no circumstances shall the vessel astern attempt to pass the vessel ahead until such time as they have reached a point where it can be safely done, when said vessel ahead shall signify her willingness by blowing the proper signals.

"The vessel ahead shall in no case attempt to cross the bow or crowd upon the course of the passing vessel."

Article 24, 33 U.S.C.A. § 209:

"Notwithstanding anything contained in these rules every vessel, overtaking any other, shall keep out of the way of the overtaken vessel.

"Every vessel coming up with another vessel from any direction more than two points abaft her beam, that is, in such a position with reference to the vessel which she is overtaking that at night she would be unable to see either of that vessel's side lights, shall be deemed to be an overtaking vessel; and no subsequent alteration of the bearing between the two vessels shall make the overtaking vessel a crossing vessel within the meaning of these rules, or relieve her of the duty of keeping clear of the overtaken vessel until she is finally past and clear.

"As by day the overtaking vessel cannot always know with certainty whether she is forward of or abaft this direction from the other vessel she should, if in doubt, assume that she is an overtaking vessel and keep out of the way."

Article 21, 33...