The Hercules

• Decision Date: 04 May 1897
• Docket Number: 206.
• Citation: 80 F. 998
• Parties: THE HERCULES. v. CROSSLEY. THE MORGAN. TAYLOR
• Court: U.S. Court of Appeals — Fourth Circuit

80 F. 998

THE HERCULES. THE MORGAN. TAYLOR v. CROSSLEY.

No. 206.

United States Court of Appeals, Fourth Circuit.

May 4, 1897

This was a libel in rem by W. W. Crossley, master of the schooner Morgan, against the steam tug Hercules (George Taylor, her master, claimant), to recover damages resulting from a collision. The district court found both vessels in fault and entered a decree for divided damages. 70 F. 334. The claimant has appealed.

Robert M. Hughes, for appellant.

Floyd Hughes, for appellee.

Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge.

BRAWLEY District Judge.

The decree of the court below holding both vessels in fault for the collision in the libel mentioned, and there being no appeal in behalf of the schooner, our attention will be limited to the consideration of the fault imputed to the tug. The learned judge, in his opinion, holds that 'the tug was in fault in failing to stand by the schooner after the collision, as well as in other particulars not material to the decision. ' The Morgan was a three-masted schooner loaded with coal, which sailed from Hampton Roads on March 24, 1893, bound for New Haven. The steam tug Hercules, having in tow the barge Charter Oak on a 200-fathom hawser, was bound south to Norfolk. The collision occurred between half past 10 o'clock and 11 o'clock at night in the Atlantic Ocean, about 20 miles to the southward of Winter Quarter Shoal lightship, and about 40 miles from Cape Charles lightship. The tug struck the schooner on the port side between the fore and the main rigging, and cut down into her timbers, making a large aperture. The schooner was promptly hauled up in the wind and hove to. She proved to be in a sinking condition, and, spite of all efforts to staunch the leak, the water gained so rapidly that her master endeavored to make port, but was unable to do so, and at 5 o'clock the water had so increased in the hold that the crew were obliged to take to the small boat, and were rescued the same morning by a passing tug. The schooner sank at 6 o'clock in the morning of March 25th, about seven miles northeast of Winter Quarter lightship. At the time of the collision the schooner was making about 5 or 6 knots an hour. The tug was making from 2 1/2 to 4 knots an hour, the wind and tide being against her. There was a heavy sea running, and a thick fog.

The testimony, as is usual in such cases, is more or less conflicting. As the collision occurred in the open sea, in the nighttime, and in a thick fog, the rule which requires a steam vessel to keep out of the way of the sailing vessel must be construed according to the circumstances. That it was the duty of the tug to proceed slowly in such weather is clear. The officers and men aboard of her say that she was making from 2 to 2 1/2 knots an hour, but the court below finds that she was moving at about 4 knots. It does not hold that this was too rapid a speed, and it is not clear to us that the rate of speed can be imputed to her as a fault. The Martello, 153 U.S. 70, 14 Sup.Ct. 723. Nor is it clear to us that there was any failure on the part of the tug to keep a proper lookout, or in giving the proper signals. The testimony in her behalf was that everything was done that ought to be done. The court below, which had the advantage of hearing that testimony, has not found her at fault in either particular. The testimony of the master in charge was that immediately before the collision he heard one faint blast of the fog horn aboard the schooner: that he put his wheel a-port, and in a second or two saw a red light. The testimony showed that the schooner was not provided with a mechanical fog horn, as required by law, and for this the court below has held her in fault. As it is not clear from the testimony that there was any act of commission or omission on the part of the tug tending to bring about the collision, and as the opinion of the court below, which was made a part of the decree, has not pointed out such fault, it remains to consider only the correctness of the conclusion which holds the tug responsible in one-half of the damage for its conduct after the collision in failing to stand by. The act of September 4, 1890 (1 Supp.Rev.St. (2d Ed.)p. 800), provides:

Section 1. That in every case of collision between two vessels it shall be the duty of the master or person in charge of each vessel, if and so far as he can do so without serious danger to his own vessel, crew, and passengers (if any), to sty by the other vessel until he has ascertained that she has no need of further assistance, and to render to the other vessel, her master, crew, and passengers (if any), such assistance as may be practicable and as may be necessary in order to save them from any danger caused by the collision, and also to give to the master or person in charge of the other vessel the name of his own vessel and her port of registry, or the port or place to which she belongs, and also the name of the ports and places from which and to which she is bound. If he fails to do so, and no reasonable cause for such failure is shown, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrongful act, neglect, or default.

'Sec. 2. That every master or person in charge of a United States vessel who fails, without reasonable cause, to render such assistance or give such information as aforesaid shall be deemed guilty of a misdemeanor, and shall be liable to a penalty of one thousand dollars, or imprisonment for a term not exceeding two years; and for the above sum the vessel shall be liable, and may be seized and proceeded against by process in any district court of the United States by any person, one-half such sum to be payable to the informer and the other half to the United States.'

There is some conflict in the testimony as to the conduct of the tug after the collision. The master, mate, and fireman of the tug testify to efforts made to find the schooner, and that she disappeared in the darkness and fog, and could not be found, and that the usual signals of distress were not given or heard; but, inasmuch as the court below has found that she did not stand by, we will assume the correctness of that finding, and consider whether, for that reason alone, the tug should be held...