The Owego
| Decision Date | 17 December 1895 |
| Citation | 71 F. 537 |
| Parties | THE OWEGO. v. THE OWEGO et al. THE CHICAGO. THE TOWNSEND DAVIS. THE W. I. BABCOCK. FOSBINDER UNION MARINE INS. CO. v. SAME. |
| Court | U.S. District Court — Northern District of New York |
Adolph Rebadow, for libelants.
George S. Potter, for the Owego.
George Clinton and Harvey D. Goulder, for the Davis and Babcock.
George B. Hibbard and Josiah Cook, for the Chicago.
On the evening of October 2, 1893, the steamer Owego, partly loaded and headed up stream, was lying at the Erie Railway dock in Buffalo harbor. The steamer Chicago was at the same time lying at the Central dock, headed down stream, her bow just reaching to the northerly side of Cincinnati street. The canal-boat W. A. Hedden was lying at the Kellogg Elevator loaded with grain. At about 9:15 the Owego, in charge of the tugs Babcock and Davis, proceeded, stern foremost, down the river, bound for Chicago. When the stern of the Owego reached a point about opposite amidships of the Chicago, the latter having previously swung out so that the bluff of her starboard bow was 15 feet from the dock, started down stream bound also for Chicago. When the Owego had reached a point about opposite the Kellogg Elevator she took a sudden sheer to the port side of the river and collided with the Hedden causing the canal-boat to sink, totally destroying her cargo. The libel was originally filed against the Owego. On the petition of the Owego the tugs and the Chicago were made parties. The libelant, the Union Marine Insurance Company having paid the full value of the cargo was subrogated to all the owners' rights and sues as for a total loss.
On the night in question there was no moon, the sky was overcast but it was starlight and not dark. There was no wind or current to affect in any way the navigation of the river. The river at the point in question is about 230 feet in width and 17 feet deep. About 900 feet below the Central dock where the Chicago lay, 180 feet below the elevator dock where the canal-boat lay and 2,600 feet below the Erie dock where the Owego lay, is the Michigan street bridge. This is a swing bridge with a central pier and a clear space about 50 feet wide on the starboard side and a somewhat wider space on the port side. The port side is usually taken by large steamers when going down the river. The Owego is a large steamer, 353 feet over all and 41 feet beam. Her wheel is 12 1/2 feet in diameter with a pitch of 25 feet. Her draught on the evening in question was 8 feet, 3 inches forward and 14 feet, 10 inches aft. The Chicago is 265 feet on the keel, about 280 feet over all and 36 8/10 feet beam. Her wheel is 11 1/2 feet in diameter with a pitch of 15 1/2 feet. Her draught was 9 feet forward and 13 1/2 feet aft. The Babcock is 73 feet long and 17 feet beam. The Davis is 80 feet long and 19 feet beam. The draught of the tugs is about 10 feet. The canal-boat was 98 feet long and 17 1/2 feet beam. The Babcock, which was the forward tug, had two lines extending from the Owego's port and starboard quarters to her towing post. The space between the two boats was about 20 feet in the clear. The Davis, whose duty it was to act as a rudder for the Owego and hold her back in case of danger, was attached to the Owego by a line extending from her forward towing post to a chain bridle attached to the Owego's bow. The speed of the tugs and the Owego down the river was from 1 1/2 to 2 miles an hour. The Owego's rudder was held amidships, her engines at a standstill. Her master was on the bridge, the first mate was on the forward deck and the second mate was aft. All her officers were at their posts. The moment the sheer began it was noticed by those in charge of the steamer and the tugs. The Davis immediately reversed and backed with all her power. The Owego ported her wheel and started ahead, the Babcock also ported and endeavored to pull the Owego's stern into the middle of the stream. The tendency of all these maneuvers was, of course, to lessen the force of the Owego's sheer. Nothing more could have been done to prevent it.
It is manifest that this was not an inevitable accident. Union S.S. Co. v. New York & V.S.S. Co., 24 How. 307, 313. It is conceded upon all sides that there was nothing in the elements which in any way contributed to produce it. The fault must, therefore, be attributed to the bad seamanship of the vessels or one of them. It is also conceded that the direct cause of the accident was the sudden sheer of the Owego. When, therefore, it is ascertained who caused this sheer the true culprit will stand revealed. The only accusation against the canal-boat is that she did not display a light. There were lights at the elevator and electric lights on the docks and at the bridge so that surrounding objects could be seen at a considerable distance. There is proof that there was a globe lantern forward on the canal-boat and also a light in her cabin; but whether there was nor not it is obvious that the failure to display a light upon the canal-boat did not produce the sheer of the Owego. The canal-boat might have been ablaze from stem to stern with electric lights and still the Owego would have sheered.
The only faults attributed to the Owego are, first, that she had no lookout, and, second, that the violent working of her wheel at the time of the collision added to the damage, the blades of the wheel tearing out the bottom of the canal-boat. The absence of a lookout, like the absence of the light, in no way contributed to produce the sheer. It is unnecessary to determine whether a lookout was or was not proper in such circumstances, because the accident would have happened precisely as it did although a score of lookouts had been present. The moment the sheer occurred it was instantly perceived by those in charge of the Babcock and the Owego. What took place thereafter was with full knowledge of all the facts bearing upon the situation. No additional fact could have been imparted by a lookout. How a lookout could have prevented the sheer or caused the Owego's wheel to cease revolving at the moment of contact with the canal-boat, it is not easy to perceive. All that a lookout could see was seen; all that a lookout could do was done at the instant. It was a crisis in which no help could be found either in lights or lookouts.
As to the second accusation two answers are manifest. The rapid working of the Owego's wheel ahead tended to reduce the force of the sheer and it is altogether probable that the blow would have been more serious had not this effort been made to stop her sidewise drift. But, however this may be, the rule is well settled that in such a situation of imminent peril, which was in no way caused by the Owego, her master is not responsible for mistakes in judgment. She was in extremis at the time and her master took measures which, in the hurry of the moment, he thought were best calculated to avert danger. It follows that no fault can be attributed either to the Owego or the canal-boat which, by any possibility contributed to produce the accident.
Regarding the two tugs no negligence has been pointed out which at all accounts for the sheer. It is admitted that they were properly attached to the Owego; that it was proper to tow her down the river stern foremost. Indeed, this was a necessity for she was too long a boat to be turned around, except at a point below the drawbridge. The tugs and tow were in the middle of the river where they should be and were proceeding at a proper rate of speed. It is suggested that the tugs should have had a lookout, but the masters of both tugs were shown to be in the pilot house raised above the deck and in a position where they could see the surrounding objects more readily than a lookout, and, as before stated, the presence of a lookout could not have prevented the sheer. Negligence cannot, therefore, be predicated of his absence.
It is also suggested that after passing the Chicago the leading tug turned the stern of the Owego too suddenly to the port side of the river when the tug was straightening up for the port draw. The weight of testimony is decidedly against this theory, the testimony being that the turn was gradual and hardly perceptible, but even if it were made as suggested it would not account for the sidewise sheer. In short, there is nothing in the navigation of the tugs and tow or in the position of the canal-boat which, upon any tangible theory can account for the sheer of the Owego. The record will be examined in vain for any fault on the part of the canal boat, the Owego, or the tugs which contributed, even remotely, to produce the accident. The Owego and the tugs had proceeded from the Erie dock down the river in the usual manner and at the usual speed and it is well-nigh certain that, but for the peculiar action of the Chicago, they would have passed through the draw and to the lake without accident. The tugs and tow being rightfully in the river and proceeding with care and prudence in the usual way were not required to take any unusual precautions against the Chicago; they were not called upon to anticipate that she would crowd herself into the narrow channel at the very...
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