Robinson v. Detroit & C. Steam Nav. Co.

• Decision Date: 14 April 1896
• Docket Number: 314,316.,315,
• Citation: 73 F. 883
• Parties: ROBINSON v. DETROIT & C. STEAM NAV. CO. HURLEY et al. v. THE CITY OF MACKINAW. HURLEY v. DETROIT & C. STEAM NAV. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

73 F. 883

ROBINSON v. DETROIT & C. STEAM NAV. CO. HURLEY et al. v. THE CITY OF MACKINAW. HURLEY v. DETROIT & C. STEAM NAV. CO.

Nos. 314, 315,, 316.

United States Court of Appeals, Sixth Circuit.

April 14, 1896

These are appeals from decrees of the district court of the United States for the Eastern district of Michigan in admiralty dismissing one libel in rem against the steamer City of Mackinaw and two libels in personam against the Detroit &amp Cleveland Steam Navigation Company, the owner of the steamer City of Mackinaw, for damages, arising out of a collision which occurred on the Detroit river between 10 minutes after 10 and 15 minutes after 10, central standard time, on the night of May 28, 1892, between the steamer City of Mackinaw and the steam tug Washburn, whereby the tug was considerably damaged, and John Hurley and William Robinson, who were on board the tug, were thrown into the water, and drowned. The Detroit & Cleveland Steam Navigation Company, under general admiralty rule No. 59 (which permits the claimant of any vessel proceeded against, or any respondent proceeded against in personam, in a suit for damages by collision, to bring into the cause any other vessel or person alleged to have been guilty of fault or negligence in the same collision, so that such other vessel or person shall be proceeded against in the same suit for such damages as if the vessel or person had originally been made a respondent), brought in the steam tug Washburn to answer to the claims of the representatives of the persons who were drowned. The tug Washburn, appearing claimed the benefit of limitation of the liability provided for in sections 4283-4286 of the Revised Statutes of the United States. Due appraisement was had thereunder. The court below dismissed all the libels. The libelants in each case appeal to this court, and the three causes have been heard together upon one record.

The City of Mackinaw is a side-wheel passenger steamer, 203 feet long, hailing from Detroit, and owned, as already stated, by the Detroit & Cleveland Navigation Company, a corporation of Michigan. Her regular route was from Detroit to Mackinac Island, between which points she made semi-weekly trips. The tug Washburn was a small harbor tug, owned by John Hurley and Timothy Hurley, of Detroit. It was 53 feet 6 inches in length, and 16 feet beam, used exclusively in river and harbor towing. The propeller Majestic, the movements of which have a material bearing on the issues in the case, was a steam propeller, also owned by the Hurley brothers, 291 feet in length, with a beam of 40 feet, employed in the freighting business upon the Great Lakes. Upon the night of the collision, the propeller Majestic was on her way up the Detroit river, bound from a Lake Erie port to Chicago, coal laden. John Hurley, one of her owners, called the tug Washburn to take him out to the Majestic, to enable him to transact some business with Capt. Lawless, her master, and to transfer some tow lines. The tug transferred the lines, put Mr. Hurley on board the propeller, and then went ashore again to get the engineer of the Majestic, Thompson W. Robinson who was waiting at Shipman's coal dock, to be taken out to the propeller. Thompson W. Robinson was the regular engineer of the Majestic, but, during an absence of a few days, had procured his brother William Robinson to take his place. The tug returned to the Majestic with Thompson Robinson, went alongside the starboard side of the Majestic, and was made fast on her starboard quarter, where she received another tow line from off the fantail of the Majestic, and waited for John Hurley and William Robinson, to take them ashore. The Washburn had a stern light burning on a pole at a proper distance from her deck. It was referred to by some of the witnesses as a common lantern. She also had her signal lights burning brightly. The Majestic had all her lights properly placed, and among them was a stern light at a considerable distance above her upper deck, and some 20 feet above the stern light of the tug. She also had a light upon her fantail. The night was cloudy, rainy, and dark, but good for seeing lights, and between 10 minutes after 10 and 15 minutes after 10, which was the time of the collision, a breeze of about 12 miles an hour was blowing from the south. The tug came alongside the Majestic the second time when the latter was abreast of the Detroit & Milwaukee Elevator, and well over on the American side, and remained fast to her starboard until just before the time of the collision. The Washburn and Majestic proceeded under a slow check, estimated at from 2 to 4 miles an hour by the land, or from 4 to 6 miles an hour through the water, on a course about E. by S.,heading for the elevator in Walkerville, on the Canadian side.

The Mackinaw left her dock at the foot of Wayne street, in Detroit, below Woodward avenue, on her way up the Detroit river, passing Woodward avenue at 6 minutes after 10 standard time, hauled out into the stream, and passed about 200 feet on the port side of the revenue cutter Fessenden, which lay 800 feet out in the stream two blocks above Woodward avenue. From this point the Mackinaw took a course of E. 1/2 N., and here she exchanged a two-blast signal with a steam barge coming down, passing it starboard to starboard. About the same time the master of the Mackinaw saw one-fourth of a mile ahead, and from 2 to 4 points on his port bow, some bright lights, which he supposed to be the anchor lights of vessels moored there. He soon discovered that the lights, or some of them, which afterwards proved to be those on the Majestic, were working over towards the Canadian shore. The Mackinaw was a fast vessel, and on her way up the river was going 10 miles an hour, or a little better, over the land, which is equivalent to about 12 or 13 miles an hour through the water. The courses of the two vessels converged and crossed a few hundred feet from the Canadian shore near Walkerville, The Mackinaw proceeded with unabated speed, overhauling the Majestic quite fast, and came within two lengths of her stern. The course of the Mackinaw lay directly up the river close to the Canadian shore. The course of the Majestic would have carried that vessel into the shore if unchanged. When within two lengths of the Majestic, the master of the Mackinaw became doubtful as to what the Majestic intended to do, and, judging that she was about to round to, ported his helm, and checked. The officers and the men of the Mackinaw state that they did not know of the presence of the tug on the starboard quarter of the propeller, and were unable to distinguish her lights from those of the propeller. The master of the Mackinaw intended to pass the Majestic on the starboard hand of the Majestic, between her and the Canadian shore. His doubt as to her future movements, however, and his fear lest she might round to, led him to port and check. Just about this time, the tug Washburn, with William Robinson and John Hurley aboard, cast off from the Majestic; and, for fear of suction by the big screw of the Majestic, the master of the tug rang up his engine, and moved the tug forward along the starboard side of the Majestic, from the rear gangway, until about midships, gradually sheering off. At that point the master checked down, and looked out from the starboard door of his pilot house up and down the river, and, seeing no vessel in either direction, put his wheel aport, swung the tug to starboard, rang up his engine, and took a course directly towards the Canadian shore. Very shortly after he had rung up his engine, he saw some colored lights. Whether they were the lights of the Mackinaw or railroad switch lights upon the shore is in dispute. Whatever the fact, they caused him to blow two whistles. Immediately after this blast, he saw the dark form of the Mackinaw bearing down on his starboard side, and then followed the collision. While the tug was engaged in freeing itself, and swinging off from the Majestic, the master of the Mackinaw, growing more anxious and doubtful concerning the situation, ordered his wheel still more aport, and stopped his engines. Just then the lookoutsman of the Mackinaw heard the exhaust of the tug. He and the captain and the mate of the Mackinaw caught the glimmer of her green light about 75 to 100 feet off the port bow, and heard her blast of two whistles. As soon as the green light was seen, the master of the Mackinaw signaled to reverse her engines. Both vessels were swinging to starboard, and the head-reaching of the Mackinaw was sufficient to carry her bow into the starboard side of the hull of the tug through a full bunker of coal against her boiler, so as to break a plate therefrom. Her speed at the time of the collision was estimated by her officers to have been about five miles an hour. She struck the tug a point or two abaft the beam, and not at right angles. The collision threw Hurley and Robinson into the water, and, before they could be picked up, they were drowned. The tug, after it was released by the backing of the Mackinaw, its engine and machinery still being in operation, ran aground near the Canadian shore, and sank. The master of the tug caught the stem of the Mackinaw at the time of the collision, and climbed up over her bow. The rest of the crew of the vessel were saved, and taken off the tug after she went aground on the Canadian shore. The Majestic, after the tug had swung off from her, changed her course two points to port, and proceeded up the river, her officers supposing from the fact that the tug had gone towards the Canadian shore that the collision which they witnessed had not resulted in serious damage. The tug had but four men in her crew, though her papers called for five. She had no lookout. ...