The City of Norwalk

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation55 F. 98
Decision Date27 March 1893

Hyland & Zabriskie, for administratrix.

Owen Gray & Sturgis, for New York & N. Steamboat Co.

Page & Taft and Wheeler H. Peckham, for New York, N.H. &amp H.R.R. Co. and for Transfer No. 4 and Car Float No. 16.

BROWN District Judge.

At about half past 3 o'clock in the morning of March 30 1892, the steam tug Transfer No. 4, having a railroad car float, 225 feet long, in tow on her starboard side, and projecting about 40 feet ahead of her, was proceeding up the East river against the ebb tide through the easterly channel between Blackwell's island and the Long Island shore, at the rate of about 2 knots per hour by land. She was bound for the New Haven docks in the Harlem river. The weather was fair; the night starlight, but dark. When near the upper end of Blackwell's island she shaped her course to cross to the westward between the upper end of Blackwell's island and Mill rock, and so into the Harlem river. When from one to three hundred feet above the northerly point of Blackwell's island, the forward end of her float came in collision with the steam propeller City of Norwalk, about 125 feet long, which had come down through the easterly channel between Flood rock and Hallett's point, and was making for the westerly channel between Blackwell's island and the New York shore. The square bow of the float struck the port side of the City of Norwalk, aft of her forward gangway, at an angle of about six points. A considerable part of the side of the City of Norwalk was carried away, and part of her cargo was knocked overboard, or shifted, so that she immediately took a strong list to starboard. She rapidly filled with water, and was soon after beached a short distance below on the Blackwell's Island shore. The fireman and one of the deck hands in alarm jumped from the upper deck of the City of Norwalk to the bow of the float. The engineer, Patrick McCullough, husband of the libelant administratrix, was seen a few moments after to jump for the float from the rail of the steam on the main deck; but failing to reach the float, he fell into the water and was drowned. The libelant sued under the state statute to recover damages for his death, as having been caused by the negligence of all the vessels. The steamboat company also filed its libel in rem against the Transfer No. 4 and the float, for the damages sustained by the City of Norwalk.

The tide was ebb at the time of the collision, and being about an hour before low water, the current was probably not less than 4 knots. The City of Norwalk, which did not slacken her full speed of about 8 knots, was, therefore, coming down at the rate of about 12 knots by land, and was making, therefore, about six times the speed of the tug and tow by land. When the former was abreast of Flood rock, she was about 550 yards from the place of collision, while the latter could not then have been more than about 90 yards from it. The lights of all the boats were properly burning.

1. In those positions, if the vessels had followed the usual courses, the pilot of the Norwalk should have seen the green light of the tug, and the tug should have seen the red light of the City of Norwalk. The witnesses on both boats, however, testify in the most positive manner that the lights seen at that time were precisely the reverse; the steamer showing only her green light, and the tug, her red light. Accordingly, the pilot of the tug testifies that he supposed the steamer was going down the easterly channel between Blackwell's island and the Long Island shore; while the pilot of the steamer testifies that he supposed the tug was intending to keep up by the Astoria shore, to go between Flood rock and Hallett's point. Those are the reasons stated by each for not giving the signals required by the inspectors' rules. Each testifies that subsequently the other gave a sheer across his bow, and thus brought about collision. A whistle was given by the City of Norwalk just before collision. But the evidence shows that the boats were then so near that the signal was of no use; and on account of their nearness, also, the Norwalk did not reverse, but kept on at full speed, as offering the only chance of escape.

Each, also, contradicts the other as to the positions of the boats respectively at the time they were first seen. But I do not find it necessary to determine the precise positions of either vessel in the channel, or the lights which at different times might have been exhibited to each other; for both were swinging more or less, and different lights were not doubt exposed to view at different times during a short interval. Independently of these controverted points, there is sufficient to charge both the steamer and the tug with fault; because it was a misunderstanding by each as to the supposed intent of the other, that caused the collision; and this misunderstanding could not possibly have happened had either given the signals required by the inspectors' rules.

The vessels were visible to each other, and were probably seen by each other, when at least 700 yards apart, the steamer being then a little above Flood rock, and the tug a little below the Blackwell's Island light. As respects the line of the channel, the two were very nearly ahead of each other, although from some swinging by each, they may each have borne somewhat on the other's bow. The inspectors' rules imperatively required a signal to be given; and the circumstances were such as made the omission of signals in this case specially dangerous and reprehensible. The tug was recognized has having a railroad float in tow, bound for the Harlem river. Even if the custom had been fixed and invariable for such tows to proceed up the easterly channel between Flood rock and Hallett's point, the rule would have still required signals to be given. But there was no such invariable custom, and the frequent practice of going to the southward of Little Mill rock in the nighttime made it at least uncertain which course the tug and float would pursue. In passing around curves and through so swift a current, there was from the first the greatest danger of collision unless a common understanding was had. Neither had any right in such a situation as Hell Gate to trust to mere inference derived from the light seen, or the supposed position at a particular moment. The Transfer No. 5, 49 F. 398. The rules as to signals are designed for the purpose of securing a common understanding and of preventing just such mistakes as the present. The Connecticut, 103 U.S. 710, 713; The Ice King, 52 F. 894, and cases there cited. The duty to give such a signal rested upon each alike, and both are alike to blame for the omission. Without considering, therefore, any other faults alleged against Transfer No. 4, and the City of Norwalk, those vessels must both be held liable; but not the car float, as no fault in her is proved.

The New York & Norwalk Steamboat Company is, therefore, entitled upon its libel to a decree for one half its damages and costs.

2. The other libel is brought by the administratrix, for damages for the death of her husband, the engineer of the City of Norwalk. It has been held in this district and circuit court in a number of cases that a seaman cannot recover against his own ship for damages occasioned by the negligence of any of the ship's company in the details of navigation, such as the omission of proper signals, as in the present case, the owners being in no personal fault. Even the officers, in the performance of the ordinary duties of navigation do not stand as the representative, or alter ego, of the owners as respects the other employes on board. As respects such details, all are engaged in one common employment, viz. the navigation of the ship, in their several grades, and each person so employed takes the risk of any negligence of the other in the common employment. The Queen, 40 F. 694; The Frank and Willie, 45 F. 494, and cases there cited; Quinn v. Lighterage Co., 23 F. 363. And such in effect is the decision of the supreme court in the case of Steamship Co. v. Merchant, 133 U.S. 375, 378, 10 S.Ct. 397. See, also, Hedley v. Steamship Co., (1892) 1 Q.B. 58. The deceased being, therefore, disabled from recovering anything from his own ship by reason of his special relation to her as a fellow servant, as respects her share in causing the collision, must be limited to a recovery of only one half his damage against Transfer No. 4; since the latter cannot be prejudiced, nor her liability be increased, by reason of that disability. The Queen, supra.

3. It is further contended that the administratrix can recover nothing from Transfer No. 4, because the deceased lost his life through his own contributing negligence in attempting to jump from the City of Norwalk to the float, when the circumstances made such an attempt dangerous. The right of action conferred by the statute is upon condition that 'the deceased, if living, might himself have maintained an action' for his damages. By the law of this state the plaintiff's contributory negligence bars his recovery and such contributing negligence, if found, must, therefore, bar any recovery by the administratrix in an action in this court based upon the state statute. The Harrisburg, 119 U.S. 199, 214, 7 S.Ct. 140; The A. W. Thompson, 39 F. 115. I am of the opinion, however, that the attempt of the deceased to jump to the float should not be treated as a legal fault, though a mistake, and an error of judgment. He had doubtless seen one or both of his shipmates jump just...

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