The George W. Roby

• Decision Date: 08 October 1901
• Docket Number: 914-916.
• Parties: THE GEORGE W. ROBY (three cases.
• Court: U.S. Court of Appeals — Sixth Circuit

111 F. 601

THE GEORGE W. ROBY (three cases.

Nos. 914-916.

United States Court of Appeals, Sixth Circuit.

October 8, 1901

John C Shaw, for Miller and others and the Florida.

Harvey D. Goulder, for the Roby.

F. H Canfield, for British & Foreign Marine Ins. Co.

The lake steamers George W. Roby and Florida came into collision on Lake Huron on the morning of May 20, 1897, by which the Florida was almost instantly sunk, and became a total loss together with her cargo. Two libels were filed against the Roby, one by the owners of the steamer Florida, and the other by the British & Foreign Marine Insurance Company as underwriters upon nearly all of the Florida's cargo. Subsequently, the Lakeland Transportation Company, the corporate owner of the Roby, filed a petition to limit its liability. In response to the monition under this petition, the owners of the Florida, for themselves as owners of the Florida, and as trustees for cargo uninsured, and for the effects of her officers and crew, filed an answer and claim. The British Insurance Company also filed its claim and answer, both answers setting up substantially the same state of facts alleged in the original libels. The case was tried first upon the questions of fault, before the district judge in open court, the witnesses being examined orally. The Roby and Florida were both held at fault. Upon this branch of the case it is much regretted that we have not the benefit of any finding of facts or statements of the faults found against either vessel, and we are left to conjecture as to the views taken by the learned trial judge of the really controverted questions in the case. The appraised value of the Roby in the limited liability proceeding was $59,300, and bond with security was given for this sum, and the vessel released. The aggregate of the claims proven and allowed was $118,379.39, the value of the cargo being more than one-half of this aggregate loss, and exceeding the stipulated value of the Roby. The court below held that the owners of the Roby were entitled to the benefit of the limited liability act, and awarded priority of payment to the cargo interests over both the hull or vessel interest and the claim of the officers and men for their effects. 103 F. 328.

The cases here comes upon three separate appeals: (1) The owners of the Roby appeal upon the question of fault, claiming that the Florida was wholly to blame. (2) The owners of the Florida appeal upon the question of fault, claiming that the Roby was alone at fault. They also appeal from the decree awarding priority in payment to the cargo interests, and from the decree allowing the owners of the Roby the benefit of the limited liability act. (3) The British & Foreign Insurance Company appeals upon the single ground that the court below erred in not construing the stipulator's bond, entered into by the owners and surety of the Roby, as bearing interest from date of its execution. The said propeller Florida was bound from Chicago to Buffalo, and at the time of collision was bound down Lake Huron, the place of collision being a few miles below False Presque Isle point. The propeller George W. Roby was bound up the lake on a voyage to Lake Superior. The Florida had a full cargo of wheat and sundries. The Roby had in tow the schooner William D. Becker, neither being loaded. The Florida was 275 feet long, 41 feet beam, and her gross tonnage was 2,100. The Roby was of about the same length, beam, and tonnage. The collision occurred about 9 o'clock in the morning. A fog of considerable density prevailed, neither of these steamers seeing the other until they were within about two lengths of each other. The wind was very light, being northerly, and there was no sea. There is much conflict as to the passing signals given by these steamers to each other, and greater still as to the order in which signals were given, and as to most of the material facts in the case. The place of collision is in the general track of the great commerce bound up and down Lake Huron, and is a locality where vessels bound to and from Lake Michigan and Superior pass very close together upon varying and uncertain courses.

For the Florida it is contended: (1) That she first encountered the fog about 40 minutes before the collision, and that her engines were at once checked, and that she afterwards proceeded at a moderate speed; (2) that the course of the Florida, from Presque Isle point until changed in response to a two-blast passing signal from the Roby, was S.E. 3/4 S., or a quarter of a point outside of her ordinary course; (3) that in from 20 to 25 minutes after checking she heard the fog whistle of a steamer between 2 and 3 points off her starboard bow, which proved to be from the steamer St. Paul, bound up the lake on a course substantially parallel with that of the George W. Roby; that the Florida was then also blowing her fog signals as required by law; that the master was then on the pilot house in charge of her navigation, her second mate alongside of the master, blowing fog signals, and a lookout on duty forward on the spar deck, and that this lookout had no other duty than to keep a lookout and report signals and sounds; that the St. Paul and Florida each blew fog signals two or three times; that then two or three exchanges of passing signals of two blasts each were given, and that as they were about abreast the Florida saluted, which was returned. Owing to the fog, these vessels did not see each other, but from the sounds their distance apart is estimated at from one-half to one mile when abreast. The evidence from the deck of the Florida is that no change in her course was made. The evidence from the deck of the St. Paul is that she had been on a compass course of N.W. by N., and starboarded about two and one-half points when passing signals were exchanged with the Florida, and that she held this altered course until nearly abreast of the Florida, and then returned to her original course. The evidence from the deck of the Florida is that the blowing of fog signals was continued after passing the St. Paul, at intervals of one minute, and that after two or three such signals a signal of two blasts was heard about one point on her starboard bow, at an estimated distance of three-eighths of a mile ahead. This was immediately replied to by a like signal of two blasts, and her wheel put hard a-starboard. After the wheel had been thus put over, the Florida blew two whistles again, which was answered by two. About this time there came in sight the top of a spar, and then the pilot house of the Roby. Thereupon the captain of the Florida blew a long whistle to his engineer to put on all his steam, his theory being that his best chance to avoid collision was to get out of the way by crossing the probable course of the Roby as rapidly as possible. It is then claimed for the Florida that after this long engine whistle had ceased blowing there was heard from the steamer, which proved to be the Roby, a series of engine whistles, three to check, one to stop, two to back, and that these were followed by a long whistle, which was blown until the Roby struck her. The distance at which the spar was first seen is estimated at from seven to eight hundred feet, and the pilot house at about two lengths, or six hundred feet. The bow of the Roby struck the starboard side of the Florida at a right angle, about amidship, and penetrated a distance of from ten to twelve feet, making a wound about twenty-five feet wide, from which she sank in about fifteen minutes. The Florida witnesses say that when the bow of the Roby came in sight she was carrying a 'big bone in her teeth' and going at a speed which they estimated at from eight to ten miles per hour. They also say that she was apparently not under a starboard helm, as she was not swinging in accordance with her passing signal. It is claimed for the Florida that she began to swing under her starboard wheel as soon as it was put over, and had swung so far as that her head was pointed N.E. by E. when struck, being a change of seven and three-quarters points to port from her course before starboarding.

From the witnesses from the Roby and her tow, the Becker, we get a story which in most points differs radically from that given by the officers and crew of the Florida. (1) The Roby was proceeding up the lake upon a course N.W. by N. 1/4 N., a course substantially parallel with that claimed to have been the course of the Florida. This course, it is claimed, was not altered until changed by starboarding under a passing agreement supposed to have been made with the Florida just before the collision. (2) The Roby was passed by the St Paul, bound up the lake upon a course substantially parallel with and about one mile on the port side of the Roby. As the Roby and St. Paul were about abreast, there was a rift in the fog, and each vessel saw the other, and from this sight, as well as from signals and engine whistles, the distance between the two steamers is judged to have been closely in the neighborhood of one mile. (3) After the St. Paul had passed, the fog signals of a steamer 'in the same direction as the St. Paul, but further up the lake,' were heard. This turned out to be the Florida. They heard her blow a passing signal of two blasts to the St. Paul, which were answered by the latter. These signals were estimated by the master of the Roby as about three points off his port bow. For the Roby it is claimed that on hearing these passing signals her speed was checked down, and according to her engineer this checking down occurred just ten minutes before the collision. In respect to the speed of the Roby under this check, the evidence from her deck is that it was between four and five mile an hour. According to the testimony...