Southern Pac. Co. v. United States
| Decision Date | 31 July 1934 |
| Docket Number | 483.,No. 482,482 |
| Citation | 72 F.2d 212 |
| Parties | SOUTHERN PAC. CO. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Martin Conboy, U. S. Atty., of New York City (Charles E. Wythe, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.
Burlingham, Veeder, Clark & Hupper, of New York City (Chauncey I. Clark and Eugene Underwood, both of New York City, of counsel), for Southern Pacific Co.
Bigham, Englar, Jones & Houston, of New York City (T. Catesby Jones and Leonard J. Matteson, both of New York City, of counsel), for cargo claimants of the El Sol.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
These appeals are from a single decree in two limitation proceedings which were consolidated, and which arose out of a collision between the ships, "El Sol," of the Southern Pacific Company, and "Sac City" of the United States, at 7:45 on the morning of March 11, 1927, in New York Harbor, close to the boundary of the western anchorage ground, and just below the Big Tom channel. The "Sac City" was bound out on an ebb tide of about two miles, well over on the west side of the channel; she was going through the water at about five miles an hour. "El Sol" was bound up, on the wrong side of the channel, butting the ebb at about four miles. The cause of the collision was a fog which lessened the visibility to a distance, variously estimated at between 1,000 and 2,000 feet. There is less conflict than usual between the stories, and so far as there is any, we see no reason not to accept the findings of the judge who saw most of the witnesses. He found that the "Sac City" heard the fog signals of "El Sol" before she saw her and did not stop her engines, which were then at "slow ahead." She sighted "El Sol" about two minutes before the collision — we should be disposed to put it at a little less — fine on her port bow, and headed on a course crossing from port to starboard, but at an angle of less than a point. She stopped her engines at once, but accepted "El Sol's" double blast and went ahead again at "slow." The ships thereafter exchanged two more double blasts, each time on "El Sol's" initiative, but the "Sac City" did not stop and back until about half a minute before contact. The master and pilot said that they had starboarded her helm on the first exchange, but that the ship had no steerage-way, and it was for this reason that the engines were put ahead after being stopped. At any rate she did not fall off to port at all, but on the contrary sheered a point or so to starboard, probably principally because she had let go her starboard anchor just before she struck, cutting deep into "El Sol's" starboard quarter between fifty or seventy feet forward of the taffrail. "El Sol" having stopped her engines when she heard the "Sac City's" fog signals, went ahead by starts and stops, until the "Sac City" came into view about 1,300 feet off. She says that at this time she was partly across the "Sac City's" bows and concluded for this reason that her best chance was to press on, though she did so only at half speed. She starboarded in accordance with her agreement, thus exposing her side to the "Sac City's" blow, and when it became apparent that a collision was inevitable, hard-a-ported to swing herself away. On these facts both vessels were held at fault, and each appealed. The cargo of "El Sol" also appealed from the allowance of the "Sac City's" limitation, but as the facts governing this question are separate, we reserve it for the moment.
The United States does not on this appeal challenge the correctness of the finding that the "Sac City" did not stop her engines when she heard "El Sol's" whistle forward of her beam. That alone is enough to charge her, because to stop would probably have prevented the collision; "El Sol" needed only about ten seconds to escape even at the speed she was going, four miles. Again, the "Sac City" ought not to have agreed to a starboard passing, when "El Sol" was nearly dead ahead and asked to cross her bows. Her proper course was to stop and back, especially if she had no steerage-way with which to manoeuvre, as was the case. If both had backed, they might still have collided, but it was the less dangerous course; and it was certainly impossible to avoid collision by keeping on with a hard-a-starboard helm; each ship had only about a length and a half to move before she met the other, and the helm has little effect in so short a space; the bow will scarcely have left the course. Knight (7th Ed.) pp. 304-310. Had each backed, her bow would indeed have fallen off somewhat to starboard, but she would still have substantially presented it to the other, and the speed, already low, would have been substantially reduced. The admonition to stop and back in emergencies has been often given, and is especially imperative. The New York, 175 U. S. 187, 207, 20 S. Ct. 67, 44 L. Ed. 126. Finally, the "Sac City" changed her heading the wrong way by more than a point, and this remains unaccounted for. As we have said, it was probably due to letting go her starboard anchor, though the weight of the testimony is that the port anchor would have had the same effect. The explanation is not very satisfactory; it is that the ebb was on her starboard side and that to stop her bow was necessarily to turn her head to starboard. Yet there is other evidence that the ebb runs true at the locus in quo, and that she was straight with the thread of the channel. Both states of fact cannot be true; and the ship is in this dilemma: Either the starboard anchor did make a difference, or she ought not to have anchored at all. The judge excused this fault as in extremis, and possibly, taken alone, that was fair; yet the results of her anchoring when and as she did strongly corroborate the impropriety of her navigation as a whole. If she could not anchor and if she had not way enough to answer her helm, certainly backing was the only proper action.
"El Sol" was also at fault. First, she was on the wrong side of the channel. It is true that we have often condoned this; twice very recently. Baltimore & Ohio R. Co. v. U. S. (C. C. A.) 72 F.(2d) 206; Eastern S. S. Co. v. Tug Syosset (C. C. A.) 71 F.(2d) 666. But these decisions were all cases where the offending ship was visible long enough in advance to give full and seasonable information of her position, and when...
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