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

• Decision Date: 21 July 1924
• Citation: 300 F. 827
• Parties: NEW YORK & CUBA MAIL S.S. CO. v. UNITED STATES. THE CONNER. THE ESPERANZA.
• Court: U.S. District Court — Southern District of New York

300 F. 827

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

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

July 21, 1924

Burlingham Veeder, Masten & Fearey, of New York City (Chauncey I. Clark of New York City, of counsel), for libelant.

William Hayward, U.S. Atty., and R. B. Romaine, Asst. U.S. Atty both of New York City.

WINSLOW District Judge.

These are cross-suits in admiralty-- one brought by the New York &amp Cuba Mail Steamship Company, owner of steamship Esperanza, against the United States, owner of the torpedo boat destroyer Conner, and by the United States against the steamship Esperanza, to recover damages arising from a collision between the Esperanza and the Conner on February 15, 1918, off Barnegat.

The original suit was begun by a libel filed by the Esperanza on April 17, 1923. The cross-libel by the United States was filed July 25, 1923. The suit was not sooner brought because of lack of jurisdiction in the court; the Conner being a public vessel at the time of the collision and continuing as such. By act of Congress approved February 28, 1923, jurisdiction was conferred upon this court to hear and determine the suit and to enter a judgment or decree 'upon the same principles and measures of liability as in like cases in admiralty between private parties.' 67th Congress, Private Act No. 192.

The facts material to the determination of the issues, not disputed, are as follows:

The Esperanza, with passengers and cargo, left Brooklyn at 3:05 p.m., February 14, 1918, bound for Cuban and Mexican ports. At 7:55 she passed Scotland Light, her course being S. by W. 1/2 W. This course was maintained until off Sea Girt, when it was changed to S. by W. 1/4 W., and later was changed to S. by W. At 10:35 p.m., the weather having thickened, the engines were put half speed and fog signals were sounded at regular intervals. At 10:30 fog shut in and speed was reduced to slow. About 10:49 the speed was reduced to dead slow, three to four knots, 'just steerage way.' The Esperanza's fog whistles, in the meantime were blown at regular intervals. At 12:08 a.m., February 15th, ship's time, while running at dead slow on a course S. by W., the fog signal of another vessel was heard about three points on the starboard bow of Esperanza. The master and second officer were on the bridge and a lookout stationed on the forecastle head. The fog signal was heard and reported by the lookout, whereupon the Esperanza blew a regular blast on her fog whistle. The captain then took the whistle cord and blew three fog whistles at approximately three-quarter minute intervals. No whistle was heard from the Conner during this time. Then a loud whistle was heard from the Conner, and at the same time she broke out of the fog, apparently coming at high speed, and almost immediately struck the Esperanza a glancing blow on her starboard side, thence disappearing in the fog under the Esperanza's stern. An inspection disclosed that the Esperanza was able to make port without assistance, and she put about, heading toward New York, where she arrived February 15th, at 12:32 p.m.

The Conner, a new torpedo boat destroyer, left Philadelphia February 14, 1918, for Newport, R.I., under orders to make test runs of 12, 16, and 20 knots, using the cruising combination of her turbines. Ten minutes prior to the termination of the 12-knot test, at 9:30 p.m. February 14th, a dense fog shut in, which continued until the collision. The 12-knot test was terminated at 9:40 p.m., when the engines were shifted to high pressure combination, but no change was made in the Conner's speed at 12 knots. The Conner passed Five Fathom Bank Lightship at 7:20 p.m. about 100 yards on her port beam. From there her course was made at 34degrees true. Her course and speed of 12 knots were held until the collision occurred. The Conner's commander testified that at 12:12 a.m. February 15th--

'I heard a sound. * * * This sound attracted my attention on the ground that it might be a fog signal. I inquired, and found no one else on the bridge had heard anything which sounded like a fog signal. I gave immediate orders to exercise unusual diligence in listening and to sound our own signal, so that, if this sound had been a fog signal, we would have given an immediate response to the other vessel. Our signal had just been sounded when, through the fog, came a loud, piercing fog signal of a steam vessel under way on our port bow. I immediately called out 'Stop the engines,' and, being the nearest person to the engine room telegraph shoved them myself to the top position and got the stop signal back from the engine room.'

The commander further says that--

'The only thing which was seen at first was a string of white lights; nothing to indicate the heading of a vessel of her character.'

He thereupon ordered 'hard right' to the steersman, and--

'just after that a green light appeared close under the bow, and the Conner struck a glancing blow against some large vessel.'

It may be noticed that the Conner's engines were ordered stopped and her helm put 'hard right' before either of the Esperanza's side lights came into view. The engines were not reversed, nor her headway checked, and she continued on, striking the Esperanza on the starboard side, glancing off and passing under the Esperanza's stern and disappearing in the fog.

The litigants do not agree as to the place of the collision. The commander of the Conner fixes it at about 12 miles from Barnegat Buoy. The Esperanza fixes it at 3 miles southeast of Barnegat Buoy.

Owing to the fact that no suit could be brought, due to lack of the court's jurisdiction, until after the act of Congress some five years after the collision, the depositions could not be taken earlier. Owing to the lapse of time, only two depositions of Esperanza's witnesses were produced-- that of the master of the Esperanza and of the second officer, both of whom were in extremely feeble health. There was also received in evidence, however, the record of the proceedings of the investigation on board U.S.S. Arkansas, February 16, 1918, made pursuant to order of the commander of the Battleship Force 2, U.S. Atlantic Fleet. There is also in evidence the record of the investigation held by the Steamboat Inspection Service at the office of the local inspectors in New York on February 28, 1918.

In determining the question of responsibility, the conduct of each vessel will be considered separately. The International Rules adopted for the purpose of preventing collisions provide that the regulations to that end 'shall be followed by all public and private vessels of the United States upon the high seas.'

'Art. 16. Every vessel shall, in a fog, mist, falling snow, or heavy rain storms, go at a moderate speed, having careful regard for the existing circumstances and conditions. ' Comp. St. Sec. 7854.

That these rules govern the navigation of a war vessel in time of war has been distinctly held by this court. Watts v. U.S. (D.C.) 123 F.

105. This case arose out of a collision between the U.S.S. Columbia and the Foscolia during the Spanish-American War. It was contended that the Columbia was proceeding at an immoderate speed in fog; the speed, however, being 6 knots. The government contended that the failure of a war vessel to obey the navigation rules during war time was excusable. The court refused to agree with this contention. In the act which authorized the present suit it is provided, among other things, that the issues shall be determined 'upon the same principles and measures of liability as in like cases in admiralty between private parties.'

The Conner was under a duty to observe the rule as to moderate speed in like manner as a privately operated ship in the admittedly dense fog. In a recent case, in which Judge Ward wrote the opinion, not yet reported (N.Y. & Porto Rico S.S. Co. v. Director General, June 3, 1924), the definition of a dense fog is given as the obscuration of objects 1,000 feet away or less.

Some evidence in the instant case is that the fog was so thick that the lookout on the Conner's bow could not be seen from her bridge 50 feet away. Commander Howe, a most excellent witness, described the visibility as 'between 50 and 100 yards.'

What is a moderate speed is, of course, a relative term, but it has been the subject of frequent comment and determination. The Colorado, 91 U.S. 692, 702, 23 L.Ed. 379; The Nacoochee, 137 U.S. 330, 339, 11 Sup.Ct. 122, 34 L.Ed. 687. Mr. Justice Brown, in The Umbria, 166 U.S. 404, 17 Sup.Ct. 610, 41 L.Ed. 1053, stated the rule as follows:

'The general consensus of opinion in this country is to the effect that a steamer is bound to use only such precautions as will enable her to stop in time to avoid a collision, after the approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law.'

And again, in The Chattahoochee, 173 U.S. 540, 19 Sup.Ct. 491, 43 L.Ed. 801, Mr. Justice Brown again referred to the rule using the following...