The Aurania

• Decision Date: 27 October 1886
• Citation: 29 F. 98
• Parties: THE AURANIA AND THE REPUBLIC. [1] v. THE AURANIA. OCEANIC STEAM NAV. CO., Limited, CUNARD S.S. CO., Limited, v. THE REPUBLIC.
• Court: U.S. District Court — Southern District of New York

29 F. 98

THE AURANIA AND THE REPUBLIC. ^[1]

OCEANIC STEAM NAV. CO., Limited, v. THE AURANIA.

CUNARD S.S. CO., Limited, v. THE REPUBLIC.

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

October 27, 1886

At about 24 minutes past 3 o'clock in the afternoon of September 19, 1885, the weather being fine, the sea smooth the tide flood, and the wind light from the southward, as the steamship Republic, of the White Star Line, and the Cunard steamer Aurania, both outward bound from this port, and in charge of competent pilots, were about entering Gedney's channel to cross the bar, they came into collision; the stem of the Republic striking the port quarter of the Aurania about 50 feet from her stern, and at an angle of about 25 or 30 deg. The Aurania's stem was, at the time, about 100 feet to the westward of the Fairway buoy, which is situated in the middle of the western entrance to that channel. The Aurania, though somewhat damaged, was not so much injured as to prevent the continuance of her voyage. The Republic's whole stem was carried away to port, compelling her to return to New York for repairs, to her alleged damage of $35,000. The above cross-libels were filed by the owners to recover their respective damages, each alleging that the collision was by the other's fault.

The Aurania is of 4,030 tons register, and 7,275 tons burden, 480 feet long by 56 feet beam, and she was drawing 26 1/2 feet of water.

The Republic is of 2,187 tons register, 3,700 tons burden, 420 feet long by 42 feet beam, and she was drawing 25 1/4 feet. The Republic passed Governor's island (Fort William) under full headway at 2:05 P.M. The Aurania was then a little behind, and not under full headway; but she overtook and passed the Republic about midway between Bedloe's island and Robbins reef. After passing the Narrows, the Aurania kept to the main or Horseshoe channel, around the south-west spit. The Republic took the Swash channel, being, at the time she left the main channel, from one to two miles astern of the Aurania. The Swash channel is a short cut to the left; the main channel sweeps around to the right; and the distance to the Fairway buoy is about two and one-half miles greater by the main channel than by the Swash. The two channels are separated by shoals, impassable to such steamers, until within about one mile of the Fairway buoy, towards which the two channels converge by an angle of 25 deg., and there unite. At the place of widest separation the two channels are about two miles apart.

The speed of the two steamers, and the precise direction of their courses, as they approached the buoy, when from half a mile to a mile distant from it, are in dispute. The Aurania's speed was admitted to be not less than between 14 and 15 knots; the Republic's between 11 and 12. Their courses differed from one to two and a half points. About the time when the Republic was approaching the end of the Swash, or was already rounding out of it, the Aurania gave her a signal of one short whistle, to which the Republic replied with two which, if the nineteenth article of the new rules is applicable, would indicate that the one was directing her course to the right, the other to the left. Each did so to some extent, but not enough to avoid collision.

Although there is sufficient water on the south side of the Fairway buoy, it is the most common practice for outward bound steamers, like these, to go to the northward of it in order the more easily to make the necessary turn to the southward after passing it; and the channel is not wide enough for two such steamers to navigate safely abreast of each other on the northerly side. The pilot and the master of the Aurania testified that it was their intention to pass on the southerly side of the Fairway buoy; that they steered for that buoy, keeping it, as they approached it, a little on the port bow; and that the blow of the Republic so changed the Aurania's direction that she passed the buoy close on its northerly side, instead of the southerly side, as intended. Both vessels were under full speed of their engines from the time of passing Governor's island, about 2:05, although there was some increase at least in the Republic's speed as the steamers proceeded down the bay. The Aurania did not slacken speed after her whistle, and prior to the collision. The Republic stopped and reversed her engines not more than a half minute previous, but without any material effect in checking her speed.

Most of the witnesses testified that shortly before the collision, and when the Republic's stem was from 60 to 300 feet from the Aurania's side, her stem seemed suddenly to fall upon the Aurania. The libelants contended that the Aurania was an overtaking vessel, and, as such, bound to keep out of the Republic's way; that she was also in fault for not keeping to the starboard side of the channel, in accordance with her signal, and for coming so near to the Republic's course, and then porting her wheel, as they allege she did, so as to throw her quarter upon the Republic's stem. The Aurania denies these alleged faults. She denies that she ported at that time, and denies that she was an overtaking vessel. She alleges that the vessels were crossing; that the Republic, having the Aurania on her own starboard hand, was bout to keep out of the way; and that the Republic brought on the collision by not doing so, and by porting her helm just prior to the collision, which porting the Republic denies.

Wheeler & Cortis and J. H. Choate, for the Republic.

Owen & Gray and F. D. Sturgis, for the Aurania.

BROWN J.

Considering that Gedney's channel across the bar is the principal, if not the only, thoroughfare for deep draught vessels in coming into and going out of the harbor of New York, it is a matter of surprise as well as of regret that where two vessels are going down the bay, and are approaching that fairway, the one by the Swash channel, and the other by the Main or Horseshoe channel, any doubt or uncertainty should exist which of them should keep out of the way of the other. It is still more to be regretted that any doubt should exist, since our adoption of the new international rules by the act of March 3, 1885, (23 St. at Large, 438,) whether the case is governed by those regulations, or by the rules previously existing and embodied in the Revised Statutes, (section 4233,) and by the local rules adopted by the supervising inspectors. And yet, at the very threshold of this case, I find a difficulty and embarrassment in determining which set of rules is applicable to vessels navigating in harbors within our coast waters that I have not been able satisfactorily to solve.

The enacting clause of the act of March 3, 1885, provides 'that the following 'Revised International Rules and Regulations for Preventing Collisions at Sea' shall be followed in the navigation of all public and private vessels of the United States upon the high seas, and in all coast waters of the United States, except such as are otherwise provided for. ' Then follow the twenty-seven articles of the new regulations. The concluding section of the act is a repealing clause, declaring that 'all laws and parts of laws inconsistent with the foregoing revised international rules and regulations for the navigation of all public and private vessels of the United States upon the high seas, and in all coast waters of the United States, are hereby repealed, except as to the navigation of such vessels within the harbors, lakes, and inland waters of the United States.' Both these vessels were, indeed, English; but the British act subjects British ships to these same regulations, whether within British jurisdiction or not. Orders in Council, April 14, 1879, (4 Prob.Div. 243;) Orders in Council, August 11, 1884, (9 Prob.Div. 247.) Article 25 of the new rules provides that 'nothing in these rules shall interfere with the operation of a special rule, duly made by local authority, relative to the navigation of any harbor, river, or inland navigation. ' If, therefore, by the exception in the repealing clause of the act of March 3, 1885, the old rules are in force in the navigation of harbors situated within our coast waters, they would seem to cover foreign vessels while navigating within such a harbor whether in going out or in coming in. The new rules have made important changes. See 1 Abb.Nat.Dig. 664. Besides those there mentioned, article 14, in relation to sailing vessels, is wholly changed in phraseology, and would seem to reverse the obligation to keep out of the way as it formerly existed under rule 12, in certain situations. See The Commodore Jones, 25 F. 506. The changes in the new regulations are so numerous and important that, in my judgment, it would prove practically impossible for the two sets of rules to be applied successfully to vessels engaged in foreign commerce, and upon the same voyage, on passing the indefinite line where a 'harbor' might be supposed to begin; and only misapprehension, confusion, and fatal consequences can be expected from any such attempt.

The exception as regards 'lakes and inland waters of the United States' seems to be surplusage, for the reason that lakes and inland waters do not fall within the enacting clause of the statute, which applies only to 'the high seas and coast waters. ' This language may have been employed from superabundant caution, to indicate that the old rules were unchanged as respects the 'lakes and inland waters.' The word 'harbors' cannot be construed in the same sense, a sociis, as meaning harbors only that are situated upon the lakes or inland waters, without taking from that word all effect whatsoever; since that meaning is already covered by the words 'lakes and inland waters,' without the use of the word 'harbor;'...