Appeal from the District Court of the United States for the Eastern District of New York.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This suit arose out of a collision in the North River, opposite New York Pier 30 or 31, between libelant's barge Utah, in tow on the port side of the tug Sorrel, and the steamship Cherokee. The Cherokee was bound for Charleston, and had come out of her slip on the north side of Pier 37 and was maneuvering to get on her course down the river. The Sorrel and her tow were going down the river from Pier 46, in the ebb tide, and were bound for Pier 14. The District Judge held that the rule of special circumstances applied and that the Sorrel was at fault for proceeding at too high speed when her master knew that the Cherokee was coming out of her slip, for assuming without warrant that the Cherokee would pass under her stern, and for not hauling more to starboard where there was plenty of open water in which to navigate. He also held that the Cherokee was at fault either for not making a shorter turn after she emerged from her slip and going down closer to the New York shore, or for not slackening her speed and passing under the stern of the Sorrel and her tow. The damages were accordingly divided.
Counsel for the Sorrel contend that the latter and the Cherokee were in a starboard hand situation and that the Cherokee was wholly at fault for not giving way, while counsel for the Cherokee argue that the case was one of special circumstances and that the Cherokee was a privileged vessel wholly without fault. We think each vessel was to blame and that the decree should therefore be affirmed.
It cannot be doubted that the starboard hand rule did not apply here. The Cherokee had come out of her slip and was still attempting to get on her course when the collision occurred. She had blown her slip whistle. The Sorrel was near the middle of the river at the time. In such circumstances it has been frequently held that the case is one of special circumstances, and the emerging vessel and a tow going up or down the river must proceed with "due regard * * * to all dangers of navigation and collision." Article 27, Inland Rules; The Servia, 149 U.S. 144, 13 S. Ct. 877, 37 L. Ed. 681; The Olympic (C.C.A.) 27 F.2d 788. It is a case of special circumstances, whether an emerging vessel has backed from her slip and is getting on her course, as was the situation dealt with in the foregoing decisions, or whether she has left her dock, bow first, as in the case at bar. The El Valle (C.C.A.) 25 F.2d 619; The William A. Jamison (C.C.A.) 241 F. 950; The John Rugge (C.C.A.) 234 F. 861.
The master of the Sorrel testified that, when he was about off Pier 43 or Pier 42, he saw the masts and heard the slip whistle of a Clyde steamer in the vicinity of Pier 36, which was about 1,500 feet below him in the river. In spite of this warning he did not navigate with caution, but proceeded down the river at full speed. Indeed, he said that "when she was coming out didn't mean anything to me" because "I was so far out in the river, I wasn't in his way at all." When the Sorrel had got down to a point opposite Pier 38, the master of the Cherokee saw her, as the Cherokee was coming out of her slip, and blew two whistles and, as she emerged, blew two whistles again, signifying that the Cherokee proposed to cross her bow. The master of the Sorrel testified that he did not answer these signals because he believed that they were directed to the Hamburg, a vessel off about Pier 15 and coming up the river. The master of the Cherokee, however, said that the Sorrel did answer his second whistles. However this may be, as soon as the tug President had brought the Cherokee out of her slip and pointed her down the river, she cast off, and about this time the Cherokee first saw the Hamburg coming up the river, slightly to the New York side of midstream. She blew the Hamburg one whistle signifying an intention to pass to the latter's port. This was replied to by the Hamburg, who proceeded on under a starboard helm until there seemed to be danger of collision with the Cherokee, when she stopped her engines, blew alarms, and reversed, at about 500 feet from the latter. The Cherokee was curving down so as to pass the Hamburg on her port side and get into the center of the stream and proceed down the river. She was a vessel 402 feet long, and could not get on her course without a considerable swing. Meantime the Sorrel, who was apparently on the New York side of the river but near the center, after porting slightly because of the one-blast signal from the Hamburg, kept her course and went on without slackening her speed until within less than 100 feet of the Cherokee. She then put her helm hard astarboard, but too late to avoid a collision between the Cherokee and the port side of the barge Utah about amidships. Just before the collision the Cherokee blew an alarm, went hard astarboard and full speed astern, but likewise too late for any effect.
Counsel for the Sorrel contend that she was over near the middle of the river and off Pier 36 when the Cherokee was emerging from that pier and that the latter, because of too great speed, finally ran her down. Of course, such a contention would hardly have been made if some of the testimony did not tend to support it, but we think it cannot be sustained. In the first place, it is quite out of accord with the views of the District Judge, who could not possibly have reached the conclusion that the Sorrel was at fault if the Cherokee was an overtaking vessel at the time of the collision. Moreover, the master of the Sorrel, when abreast of Pier 43 or 42, heard the Cherokee blow her slip whistle to leave Pier 36 and should have navigated with extreme caution. When the Cherokee first blew two whistles to the Sorrel, she had proceeded half her length or approximately 200 feet beyond the end of her pier, so, if we fix the Sorrel as off Pier 36 at this time, we are forced to assume that the Sorrel traversed a distance of about 1,500 feet, while the Cherokee, though represented by the appellant as impatient to proceed, was traversing less than half the space. Furthermore, if the Sorrel and her tow were abreast of the Cherokee's slip when she was coming out, it is inherently unlikely that the Cherokee would have run them down. Such a maneuver not only would have involved an extraordinary and gross violation of every rule of navigation, but would have required the Cherokee to move out of her slip and cross almost to the middle of the river within a time less than that taken by the Sorrel, which was confessedly going at full speed, to go a shorter distance before reaching the point of collision. A more fantastic antic could hardly be imagined. The engine movements of the Cherokee from the time she started from her berth until the collision indicate no such mad race. According to her log, they were as follows: