CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation5 F.2d 425
Docket NumberNo. 63.,63.
Decision Date15 December 1924

5 F.2d 425 (1924)


No. 63.

Circuit Court of Appeals, Second Circuit.

December 15, 1924.

5 F.2d 426
5 F.2d 427
Hunt, Hill & Betts, of New York City (Geo. Whitefield Betts, Jr., and George C. Sprague, both of New York City, of counsel), for appellant Compania Transatlantica

Bingham, Englar & Jones, of New York City (T. Catesby Jones, of New York City, of counsel), for appellee West India Oil Co.

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

J. Harvey Turnure and Eustace Conway, both of New York City, for appellee administrator.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above).

The collision complained of occurred in the Atlantic Ocean on the morning of May 10, 1920. The steamship Buenos Aires was a passenger steamship carrying 698 persons on board and was on its way from Cadiz, Spain, to New York City. It was a Spanish owned vessel and was proceeding on its course at a speed of about 9½ knots per hour when it discovered the bark Windrush almost directly before it, and which it had not before seen. A collision resulted between the two vessels, and the Windrush was sunk. It was an American vessel built in England in 1892, and classed by Lloyds as 100-A-1. The bark sailed from the port of New York and was bound for the port of Montevideo, Uruguay, with a full cargo of refined petroleum. The whole cargo was lost and five out of eighteen members of her crew were either drowned or died of exposure.

The libels are on behalf of the owner of the bark, the owner of the cargo, and the administrators of the sailors who lost their lives.

The libelants claim that the collision was due solely to the fault and neglect of those in charge of the steamship Buenos Aires. The steamship alleges that the collision was not due to any fault or negligence on the part of her owners, officers, or crew, but solely to the fault, negligence, and lack of care of the owners, officers, and crew of the Windrush.

The Buenos Aires was the burdened vessel and the Windrush the privileged one. A sailing vessel, except when it is the overtaking vessel, is always the privileged vessel as against a steamer, and it is her duty to hold her course and speed. Article 20 of the International Rules (Comp. St. § 7859) is as follows:

"When a steam vessel and a sailing vessel are proceeding in such directions as to involve risk of collision, the steam vessel shall keep out of the way of the sailing vessel."

Article 22 of the same rules (section 7861) is as follows:

"Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other."

See the following cases: The Carroll, 8 Wall. 302, 305, 19 L. Ed. 392; The Illinois, 103 U. S. 298, 299, 26 L. Ed. 562; The Lafayette (C. C. A.) 269 F. 917; The Stifinder (C. C. A.) 275 F. 271; La Boyteaux's Rules of the Road at Sea, 135. The general rule requires a sailing vessel meeting a steamer to keep her course, and it is the steamer's duty to keep out of the sailing vessel's way. "The rule creates a mutual obligation, whereby the sailing vessel is required to hold its course in order that the other may know its position, and not be led into erroneous maneuvers in endeavoring to comply with the requirements of the rule." The Europa (D. C.) 116 F. 696, 698; The Free State, 91 U. S. 200, 23 L. Ed. 299; The Scotia, 14 Wall. 170, 181, 20 L. Ed. 822. In this case the Windrush obeyed the rule and the Buenos Aires disobeyed it. It is true that the Windrush changed her helm. But this she did not do until just prior to collision when it became evident that the Buenos Aires was not observing the rule and would collide with her unless she could in some way make her escape. If the Windrush in the extremity of collision changed her helm, it cannot be attributed to her for a fault.

The rule which requires a steam vessel to keep out of the way of a sailing vessel when proceeding in such directions as involve a risk of collision seems to have been a rule of navigation in the United States as long as steam has been used as a motive power. The reason lies in the fact that the motive power

5 F.2d 428
of the steamer is under human control and is at all times available, while the motive power of the other is not. As was said by Judge Sprague in The Osprey, 18 Fed. Cas. 884, No. 10,606: "The wind bloweth not only where it listeth, but when it listeth. * * * It may suddenly come ahead, or wholly cease; and in the latter case, she the sailing vessel would be helpless." And see The Leopard, 15 Fed. Cas. 351, No. 8,264; The Northern Indiana, 18 Fed. Cas. 351, No. 10,320

The libelants' witnesses testified that the night was clear with the moon shining about 20° above the horizon, the last quarter of the moon not having come; that few stars were visible and light cirrus clouds hovered in the sky.

The witnesses testifying for the Buenos Aires said that the moonlight was visible at times only; that nimbus clouds floated across the sky, covering the moon at times and interfering with visibility. They, however, admitted that the night was good for observing lights.

It was the duty of the Buenos Aires when she discovered the Windrush ahead, without knowing definitely the course the latter was pursuing, to stop and reverse in the face of the manifest danger of the situation. In The Cushing (C. C. A.) 292 F. 560, 563, 565, this court held that the failure of the steamer to stop and reverse her engines in the face of danger was sufficient to fasten liability upon her. We there said:

"Failure to reverse until just before the collision is indicated by the log. Steam vessels must stop their engines in the presence of danger, or even anticipated danger, and the failure to do so has been the cause of condemnation of many vessels, where collisions have occurred. The New York, 175 U. S. 187, 20 S. Ct. 67, 44 L. Ed. 126."

And in The Diana (D. C.) 181 F. 263, affirmed 194 F. 1021, 114 C. C. A. 654, the court (at page 265) says:

"If the boats steamer and bark were in such position that there was not time to correctly ascertain what course the bark was holding, and to estimate whether the steamer could go to port or should proceed across the bark's bows, then the steamer should have stopped and reversed so as to lessen the danger of the position."

The failure to see lights when properly set and burning, where due to want of vigilance, renders the vessel liable for a resulting collision. The John Rugge, 234 F. 861, 148 C. C. A. 459; The W. H. Gilbert, 232 F. 547, 146 C. C. A. 505; The David C. Ritcey (D. C.) 223 F. 179; The Number 32, 170 F. 932, 96 C. C. A. 148.

It appears that for some time prior to the collision and at the time thereof the Windrush was proceeding with all her sails set except her royals, fore-top-gallant sail, flying gib and gaff topsails, all of which were furled. It also appears that the second mate, who was in charge of the watch, was aft; that a seaman was at the wheel; and that a competent lookout was stationed forward on the forecastlehead.

It is claimed on behalf of the Windrush that she was, prior to and at the time of the collision, displaying the regulation red and green side lights, which had been lighted at sundown on the evening before. But it was alleged by the Buenos Aires, in the answer which was interposed, that no lights were displayed by the Windrush or were visible to those on the Buenos Aires at any time.

The statute required the bark to exhibit a proper red light on the port side and a green light on the starboard side visible for a distance of two miles. Comp. St. §§ 7836-7841. The court below has found as a fact that the lights of the Windrush were burning properly. We are convinced of the correctness of that finding. The sailor whose duty it was to care for the lights on the Windrush, and who was detailed as lamp trimmer, and who cleaned the lamps, testified that the binnacle lights and the lamps used about the deck were cleaned every day and the running lights every other day. On his cross-examination he testified as follows:

"Q. Of course, you took good care of them, didn't you? A. Certainly, I would hear about it if anything went wrong with them and the mate would find out about them.

"Q. Was the mate likely to find out about them? A. Yes.

"Q. How? A. Every half hour a bell was struck aft at the wheel; the wheelman struck the bell every half hour; the man on the forecastlehead, the lookout man — every time he struck the bell he had to report the lights, and he would sing out when the bell was struck, `The lights are burning bright,' and the mate would answer, `All right.'

"Q. Did the mate make any inspection to see if they were burning bright? A. No.

"Q. Then it wasn't certain that he would ascertain any default on your part in caring for the lamps? A. Why, yes; it is because if the lamps were out the lookout would let him know they were out."

The witness, whose testimony shows him to

5 F.2d 429
have been truthful, testified on his direct examination as follows

"Q. Can you tell me now when the lamps, particularly the running light of the Windrush, were trimmed by you previous to the collision? A. No, I am not absolutely sure whether it was that day or the day before; I couldn't say; I am not positive.

"Q. It was your custom, was it, to trim them every other day? A. Every other day.

"Q. And you can't recall now whether you cleaned them the day before the collision or the day before that? A. No.

"Q. What was the condition of those lights? A. They were in good condition."

This testimony was given nine months after the accident happened. But the steward on the Windrush testified positively that he saw the man cleaning the lights on the...

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