1. A large ocean steamer, running at the rate of eight or ten
miles an hour and close in with the Brooklyn shore on the East
River and across the mouths of the ferry slips there in order to
get the benefit of the eddy, condemned for a collision with a New
York ferry boat coming out of her dock on the Brooklyn side and
which, owing to vessels in the harbor, did not see the ocean
steamer.
2. Demurrage charged also against the ocean steamer for the time
that the ferry boat was repairing, though her owners, a ferry
company, had a spare boat which took her place on the ferry.
Among the numerous ferries between Brooklyn and New York is that
known (from the name of its New York dock) as the Catharine Street
Ferry. The dock on the Brooklyn side is at Main Street, not
opposite to Catharine Street but considerably to the east of it, so
that all ferry boats coming out of it and on their way to the
Catharine Street dock on the New York side have, after getting out
of their dock, to turn considerably to the westward, and so run
over to New York. To the west of Main Street, the Brooklyn shore
projects somewhat and then falls off towards the south.
On the afternoon of April 14, 1865, the
Manhassett, a
ferry boat belonging to the Union Ferry Company, a company having
several other ferries between New York and Brooklyn, was coming out
of her dock at Main Street on
Page 85 U. S. 599
one of her regular trips. A good deal of shipping was lying at
anchor outside and to the southwest of the dock in a way that
intercepted the view westward by a boat coming out.
At the same time that the
Manhassett was thus coming
out of her dock, the ocean steamship
Favorita was coming
up the river (eastwardly or northeastwardly), and with a view of
getting or keeping the eddy was running, as this Court assumed on
the weight of the evidence, "close in with the Brooklyn shore and
across the mouths of the ferry slips" which line it.
A statute of New York makes it obligatory on all vessels passing
up or down this part of the river to keep the center and to move
slowly. The
Favorita was not at her full speed at all, but
was still running at the rate of eight or ten miles an hour.
The pilot of the
Manhassett, on account of the shipping
lying adjacent to the pier and perhaps in part from the curve in
the shore, was unable to see the
Favorita until he had
passed out of the slip. As soon as this was done and the vision to
the southwest was unobstructed, he discovered the
Favorita
coming up the river within such close proximity to the Brooklyn
side as to render the danger of collision imminent. Acting on the
exigency of the moment, he rang his bell to stop, then to back, and
blew two whistles, indicating to the
Favorita his wish
that she should sheer to the New York shore, and endeavored by a
pressing signal to his engineer "to back her strong," so as to get
his boat again into her slip. The
Favorita, if she heard
the whistles, did not respond to them, and if she changed her
course at all, it was in the direction opposite to that called for
by the signal. A collision ensued; the
Manhassett was
struck forward of her port wheelhouse and suffered material
injury.
The owners of the ferry boat put another boat, which they owned,
on the ferry, and sent the
Manhassett for repairs. These
it took ten days to make. They then libeled the
Favorita
for damages.
A good deal of testimony was taken, and it conflicted in
Page 85 U. S. 600
certain parts, including especially that as to whether the
Manhassett had executed the proper maneuvers when she saw
her peril -- that is to say, whether she ought not to have gone
straight on -- and as to what the distance was as which the
Favorita was running from the Brooklyn shore. The court,
as already said, assumed that the
Favorita was running
"close to the Brooklyn shore and across the mouths of the ferry
slips."
The district court decided that both boats were in fault, and
apportioned the damages, while the circuit court, imputing no fault
to the
Manhassett, fixed the blame on the
Favorita alone, and decreed accordingly, and decreed also
a certain sum, based upon the evidence, for demurrage. From that
decree the present appeal was taken.
MR. JUSTICE DAVIS delivered the opinion of the Court.
It is not necessary for the proper disposition of this case to
reconcile conflicting testimony, as is frequently required in
causes of collision. It is true the witnesses differ in opinion on
the question whether the
Manhassett pursued the proper
course when threatened with danger, and also in the matter of
distances, but these differences do not affect the main points on
which we rest our decision.
It is manifest, on account of the extent of the shipping
constantly passing through the East River at this point of it, that
the greatest vigilance is required in the navigation of the stream
by vessels passing up or down it. More especially is this so by
reason of the constant passage of ferry boats across the river. The
extent of this business can hardly be overstated. Millions of
passengers are transported between Brooklyn and New York annually,
and, of necessity, the boats must make their trips with regularity
by night as well as by day and in all kinds of weather. All persons
who seek the waters of this river must observe the rules which tend
to the safety of navigation. This observance
Page 85 U. S. 601
involves no hardship and does not assert any exclusive or prior
right in behalf of ferry boats. It is necessary for the protection
of all the different interests centering in this great harbor, and
these interests are all to be recognized and considered in
determining what is or is not good navigation under the
circumstances. Manifestly the rules of navigation must vary
according to the exigencies of business and the wants of the
public. The rule which would be applicable in a harbor where the
business was light and the passage of vessels not liable to be
impeded would be inapplicable in a great thoroughfare like the East
River. In the former it might be that vessels could with safety run
across the mouths of ferry slips in going to or from their wharves,
while in the latter such navigation would necessarily be hazardous.
It is hazardous, because ferry boats are constantly emerging from
their slips and their masters generally unable, on account of the
shipping moored about the piers, to discover approaching vessels
until they have got their boats out into the open river. Common
prudence therefore requires that vessels in the situation of the
Favorita should occupy as near as possible the middle of
the river. This is necessary for the mutual safety of all concerned
in its navigation, and is required for the protection of life as
well as property. If the middle of the river be previously
occupied, and the ship is obliged to go nearer to shore in order to
avoid other vessels pursuing the same track, she must run at such a
slow rate of speed as to be easily stopped, so as not to endanger
boats pursuing their regular and accustomed occupation. Any other
rule than this would tend to the confusion rather than the safety
of navigation, and put in jeopardy the lives of hundreds of people.
The great and varied business interests conducted in this harbor
require the rigid enforcement of this rule. Indeed the necessity
for it was so apparent that the Legislature of New York, doubtless
in order to render it more effective, embodied it in a statute. The
Favorita, without excuse, violated this rule. It is plain
from all the evidence that her object in going where she did was to
seek and
Page 85 U. S. 602
keep the eddy. This may have made her navigation easier, but she
cannot escape in this way, for there was no difficulty in running
the boat out in the river, and the excuse that she went close in
shore to avoid other vessels is not sustained by the evidence.
There were no more vessels than usual in the river at the time, and
no reason given why a departure from the usual path was necessary
under the circumstances. Besides, suppose there was, the
Favorita is condemned by her rate of speed. If she was
placed in the predicament which compelled her to take the shore
track, obviously her speed should have been lowered so that the
boat could have been readily stopped and on a moment's warning
changed to the right or left, as the necessities of the case may
have required. It may be that in the middle of the river she could
have been safely run at eight or ten miles an hour (a point on
which we express no opinion), but clearly running along across the
pier ends and ferry slips of the East River at such a rate of speed
is at all times dangerous, and the result proves that it was
particularly so at this time.
There is a good deal of testimony bearing on the point of the
distance of the
Favorita from the shore at the time of the
collision, but it is unnecessary to consider it, for the estimate
of witnesses in times of sudden peril on such a subject is mere
conjecture and necessarily inconclusive. That the ship was out of
the path she should have occupied and improperly close to the
Brooklyn shore is evident enough, because both vessels were in
perilous proximity the moment the
Manhassett emerged from
her slip. Had she been at a suitable distance from the shore or
going with a materially lessened speed, the collision would not
have happened, and the inquiry arises whether she must alone suffer
for the loss that occurred. On a consideration of the whole
evidence, we are unable to see in what respect blame can be cast on
the
Manhassett.
It is clear that the officers of the
Manhassett did not
see the
Favorita, on account of intervening vessels, until
the former had emerged from her slip, and equally clear that
Page 85 U. S. 603
they had no right to expect the
Favorita to be in the
wrong place in the river. The peril was imminent as soon as the
Manhassett had cleared her slip and both vessels were in
full view of each other. Both at once applied the means and took
the course deemed proper by their officers to prevent the
catastrophe. It is said if the
Manhassett had advanced
instead of stopping, she would have cleared the steamship. This may
or may not be true, but if true, she is not in fault for this error
of judgment. It was a question whether to advance or to stop and
back, and the emergency was so great that there was no time to
deliberate upon the choice of modes of escape. In such a moment of
sudden danger, caused by the misconduct of the
Favorita,
the law will not hold the pilot of the
Manhassett, acting
in good faith, guilty of a fault if it should turn out after the
event that he chose the wrong means to avoid the collision, unless
his seamanship was clearly unskillful. And this we do not find to
be the case. On the contrary, if there were error at all, it was
such a mistake of judgment as would likely be committed by anyone
in similar peril. If the
Favorita had been where good
navigation required her to be, or had she slackened her speed so as
to be able to stop as soon as she discovered the
Manhassett, the danger would not have existed nor the
accident happened. She is therefore, in our opinion, chargeable
with all the consequences that flow from this collision.
The appellants object to the allowance of demurrage by the
commissioner on the ground that the ferry company suffered nothing
by the loss of the use of the
Manhassett while undergoing
repairs, because her place was supplied by a spare boat kept for
emergencies, and which would otherwise have been idle. This subject
was fully discussed in the case of
The Cayuga [
Footnote 1] by the learned circuit
judge of the second circuit, who sustained a similar allowance, and
as that case was affirmed on argument in this Court, [
Footnote 2] and
Page 85 U. S. 604
his views adopted, we must consider the question as no longer
open to discussion.
Decree affirmed.
[
Footnote 1]
7 Blatchford 385.
[
Footnote 2]
81 U. S. 14
Wall. 278.
