THE GEORGE H. JONES

• Citation: 27 F.2d 665
• Decision Date: 23 July 1928
• Docket Number: No. 318.,318.
• Parties: THE GEORGE H. JONES. THE SUNOCO.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

27 F.2d 665 (1928)

THE GEORGE H. JONES.

THE SUNOCO.

No. 318.

Circuit Court of Appeals, Second Circuit.

July 23, 1928.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (J. Harvey Turnure and William H. McGrann, both of New York City, of counsel), for the George H. Jones.

Bigham, Englar & Jones, of New York City (Leonard J. Matteson and T. Catesey Jones, both of New York City, of counsel), for the Sunoco.

Leo J. Curren, of New York City, for the Kellers.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

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

Prima facie the Jones stands at fault. Minnesota S. S. Co. v. Lehigh Valley Transportation Co., 129 F. 22 (C. C. A. 6). She left her course, came at least 100 feet in shore, and collided with a tow which was on a steady and obvious course safely on her port hand. The Jones' pilot frankly concedes that he did this because, in a choice of evils, he preferred taking the chance of hitting the tow to risking a collision with a tanker full of explosive cargo. We do not necessarily charge him with fault in making that choice, because, if he had been otherwise blameless, the Jones' peril might excuse what would otherwise be a deliberate tort. As we view the facts, it is unnecessary to say anything on that score, because there seems to us no reason to doubt the conclusion of the learned District Judge that she was moving at too high speed for the waters she was in.

As is common in such cases, the testimony is in much dispute, and it is impossible to reach a certain conclusion in figures. We should be disposed to question whether her speed was as high as 10 miles, as the judge found. Most of the witnesses put it at 7 and we are satisfied that it was at least as much. Speed is clearly relative to the situation of the ship; what is proper at sea is ordinarily improper in a harbor, and one harbor speed should differ from another. The Jones was moving into crowded waters; besides the Sunoco and the tow, there were several small tugs thereabouts, and she was to pass within 400 or 500 feet of a ferry slip from which at any time a ferry might emerge, and into which another was bound. At such a place and at such a time she was bound to hold herself in reserve against possible miscarriages on the part of any of these vessels.

Not much can be deduced from the fact that she had so much difficulty in checking her way after passing the Sunoco. She had put on what steam she had when she hard astarboarded to escape that vessel, and in that we cannot charge her with fault. We believe, however, that the rate at which she was approaching upset the Sunoco's composure and made her miscalculate the Jones' course and her purpose. For that she was at fault, quite as though it had been the direct cause of the collision. Amid such a tangle of shipping and in such a narrow berth, she should have foreseen that the only safe course was to move at a very moderate speed.

The Jones argues, however, that the Kellers was herself at fault for pulling the tow over to the shore, instead of stopping where she was and signaling her barges to let go their anchors. The Kellers was suddenly confronted by a large vessel bearing down upon her at full speed, suddenly and unaccountably deviating from her course, bent apparently on her destruction. The occasion called for quick action, and should be judged with lenity. We are by no means sure that the suggested course was better than that taken. The assumption that the tug whipped her tow into the course of the Jones is not entirely demonstrated, though perhaps she did. Be that as it may, to hold a master at fault for failing in such an emergency to choose the better part seems to us too severe a standard. In following his instinct to get away as quickly as possible, we think that the Kellers' master acted within the pardonable margin of choice. Therefore we hold that the Jones has not shown herself free from that fault with which prima facie she was chargeable.

The case, therefore, turns upon whether she has shown the Sunoco also at fault, despite the fact that she did not collide either with the tow or the Jones. The Two Sisters, L. R. 1 Pro. Div. 117 (C. A.). The Mayor Gaynor appears by her log to have reached the slip at 7:52, to have backed out at 7:55 and gone in at 8:08. As a number of witnesses testify to the fact that two ferries passed between the tankers, we can only conclude that she was the ingoing one. We think, therefore, that the Sunoco's pilot was right when he said that there was a ferry just off his port bow, to which he blew, and for which he waited. It can only have been the Mayor Gaynor, whatever those on board the Sunoco thought her name. The signal, whatever its primary purpose, was by the pilot's own testimony intended also for the Jones, if she would so accept it. While we regard his intention as immaterial for purposes of navigation, we think it conclusive evidence that at that time he...