The Albany

• Decision Date: 21 July 1897
• Citation: 81 F. 966
• Parties: THE ALBANY. v. THE ALBANY. McCULLOUGH et al.
• Court: U.S. Court of Appeals — Second Circuit

81 F. 966

THE ALBANY.

McCULLOUGH et al. v. THE ALBANY.

United States Court of Appeals, Second Circuit.

July 21, 1897

This is an appeal from a decree of the district court, Southern district of New York, apportioning the damages in an action arising out of a collision between the libelants' ferryboat Susquehanna and the claimant's ferryboat Albany. The district judge held both vessels in fault, but only the libelants appealed. 74 F. 314.

Wilcox Adams & Green, for appellants.

Ashbel Green (Herbert E. Kinney, of counsel), for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

About 9:45 p.m. of February 20, 1895, the Susquehanna left the foot of Chambers street, New York, on a trip to the Pavonia ferry Jersey City. She ran out from her slip, and, under a port wheel, turned upstream somewhat east of the middle of the river. At about the same time the Hamburg, a double-decked ferryboat of the Hoboken Ferry Company, left her slip at the foot of Barclay street, which is below Chambers street, also ran out, and swung up the river, bound for the foot of Newark street, Hoboken. By the time they had steadied on their respective courses, both boats were heading about up the river,-- the Hamburg a little more towards the Jersey shore. The Susquehanna was to the eastward of the Hamburg about a length to a length and a half, her bow lapping on the Hamburg's starboard quarter. The Hamburg was the faster boat, and as they proceeded up the river she gradually drew ahead, until she left the Susquehanna entirely astern. Meanwhile the Pennsylvania tug Harsimus, with a car float in tow, was proceeding directly across the river from pier 29 North River, to Harsimus Cove, next to the abattoir in Jersey City, which is some 500 feet south of the lower slip of the Pavonia ferry. About 9:30 o'clock the West Shore ferryboat Albany left Weehawken, N.J. bound for Franklin street, New York. The distance is about 4 1/2 miles, and she hugged the Jersey shore pretty well all the way, to get the benefit of the tide, which, her pilot says, was slack in mid river, but running ebb along shore. As she reached a point nearly opposite the Pavonia ferry the ferryboat Delaware ran out of the slip, bound for Chambers street, New York, and the Albany slowed down and headed for her own slip at the foot of Franklin street, New York. A line drawn across the river at Franklin street would be about halfway between the two Erie terminal slips. In other words, by the time she was opposite Franklin street an Erie ferryboat would have made only about half the northing necessary to bring her from Chambers street to Pavonia. While the fleet was in this position the colored lights of the Albany and the Susquehanna were obscured from the view of each other by the high double deck of the Hamburg, and the Albany, on a crossing course, was drawing nearer to the other two vessels, which were crossing her bows; the Hamburg showing her red light, and the Susquehanna presenting her red light, temporarily obscured from the Albany by the superstructure of the Hamburg. Proceeding thus, the situation so changed that, as the district court finds, 'when off Franklin street, and probably about one-third of the way across the river, * * * (the Hamburg) drew away from between the Susquehanna and the Albany, so that the red lights of each became suddenly visible to the other a few hundred feet apart. Each ferryboat at once ported her helm, and very soon each reversed her engine, but they come in collision before the progress of either was stopped. ' The details of navigation subsequent to the time when the Hamburg moved out of the line of sight need not be rehearsed, for the district court has found that 'the collision did not arise from anything that can be called a legal fault after the vessels were aware of each other's near presence. ' The faults for which both vessels were condemned are thus stated in the opinion:

(1) 'The primary fault was in proceeding so near to another high vessel as to be concealed from the view of others likely to be approaching, so as to leave no sufficient time for any effective maneuvers after the proximity of the other vessels is known.' (2) 'Each boat, I find, was swinging under the stern of the Hamburg in order to go to her slip. * * * There was not the least need of navigating or rounding so near to the Hamburg. * * * She (the Susquehanna) had no right voluntarily and unnecessarily to hide her side lights behind the Hamburg, and then draw under her stern without giving any such timely notice by lights and signals as is required,' etc.

As above expressed, the first of those faults might be held to arise whenever a vessel navigating in a crowded harbor, on a fixed course, as in the case of a ferryboat, is temporarily 'blanketed' by some faster craft overtaking her. The affirmance in the circuit court in the cause of The Seacaucus (reported in district court; 34 F. 68), which was referred to on the argument, was upon the ground of an abrupt sheer around the stern of the intervening boat by the Hawley, and the failure to keep a proper lookout by the Seacaucus. We are not prepared to hold that the mere fact that a faster vessel has temporarily obstructed the view from and towards another vessel is sufficient to charge that vessel with fault, when its lookouts have been vigilant, and it attempts no change of course until after the intervening vessel has moved so far ahead as to cease to be an obstruction to the view of other vessels. So long as neither vessel of the two which have been temporarily hidden by a third draws or swings or crosses under her stern without giving opportunity for timely notice to and from whatever craft may be found beyond the removed obstruction, it is difficult to see how either of them is guilty of a fault tending to bring about collision. There may be cases where on vessel voluntarily places herself so close to another one, and unnecessarily continues in her place of concealment so long, as to warrant a finding that her navigation is imprudent, but the facts in proof here do not warrant such a finding. The district court, however, as appears from the citation supra, held that each boat was in fault for swinging under the stern of the Hamburg so quickly as to prevent the giving or receiving of timely notice to and from whatever vessel the Hamburg had previously obscured. That the Albany committed this fault is undisputed here, since she has not appealed; and, even...