In admiralty - Where a schooner, sailing with a free wind, meets a propeller encumbered with a long tow, the duty of avoiding a collision does not devolve wholly upon the propeller. The schooner is also bound to look out for herself and take such precaution as the circumstances seem to require.
This was a libel for collision between the barge SAGINAW, then in tow of the propeller MISSOURI, and the schooner MARION W. PAGE, which occurred in Lake Huron off Lexington, at about seven o'clock in the morning of October 20th, 1886. The libel averred in substance that the barge was the fourth of a tow of five vessels in tow of the propeller MISSOURI, and bound down the lake on a course nearly south. That the schooner PAGE bound up the lake on a parallel opposite course with a free wind approached as if to pass on the port side, but after she had passed the MISSOURI, and when a short distance ahead of the SAGINAW, she suddenly swung, as if under a starboard wheel, directly across the tow and struck the SAGINAW, upon her port bow not far from the stem. The answer of the MISSOURI did not differ essentially from the libel in the statement of facts, but denied all the allegations of fault made against the propeller. The answer of the schooner MARION W. PAGE averred that she, together with the schooners JOHN KELDERHOUSE, NEWSBOY and ARTHUR had just been cast off by the tug WILLIAM A. MOORE, and had shaped her course north by west up the lake with a free wind. That about half past six in the morning the MISSOURI was seen coming down the lake at a distance of three quarters of a mile, and bearing a point upon the barge's starboard bow; that the vessels continued on their respect) courses until the MISSOURI suddenly, and when about two lengths off, hauled up and attempted to cross the PAGE's bow. The PAGE, however, was kept steadily on her course until she approached the third barge of the MISSOURI's tow, when her wheel was ported sufficiently to clear the stern of this barge. After this had been done her wheel was put to starboard and the man on the third barge was called to let go the line to the fourth barge. This, however, was not done and before the PAGE could swing sufficiently to clear the tow line she struck, and the fourth barge, which proved to be the SAGINAW, came on without apparent change of course, struck the PAGE a heavy blow on her starboard side between the fore and main rigging, opening up her own bows and leaving her port anchor hanging on the PAGE's rail. From the time the MISSOURI and her tow were first sighted and until after they crossed the PAGE's bow, the latter was kept steadily on her course without variance, and after the MISSOURI had crossed the PAGE's course the time and distance were too short for the latter to avoid a collision with one or more barges in the MISSOURI's tow. The court was assisted upon the argument by Commander Elmer, U.S.N., and Captain Thomas Hacket, nautical assessors.
Messrs. Moore & Canfield for the libelants.
Mr. J.W. Finney, for the propeller MISSOURI.
Messrs. C.E. Cramer and H.H. Swan for the MARION W. PAGE. Brown, J.
We have found no difficulty in disposing of this case. The answer of' the PAGE sets up an improbable state of facts and the testimony discloses quite a different, but an equally improbable defense, viz., that the tow was pushing a south westerly course down the lake and so much across the course of the PAGE that the latter was unable, even with a free wind, to avoid coming into collision with the tow. Had this been the case we are by no means certain that we should have exonerated the schooner from fault. While the general rule is unquestioned that a steamer having vessels in tow is to be considered as a steam vessel and bound to keep out of' the way of' a sailing vessel, this rule is subject to important qualifications, and in fact is of little value where a propeller having four or five barges in tow meets a number of sailing vessels pursuing a different course with a free wind. In such case it is clear the sailing vessels are much better able to control their movements than the steamer, and it is but just that the cut, of avoiding a collision should not rest wholly upon the latter. Such a case would seem to be an exceptional one and falling within the 24th rule of special circumstances, rendering a departure from the general rules necessary in order to avoid immediate danger. The Kingston by Sen. 3 W. Rob. 152. The La Plata Swabey 220. The Arthur Gordon Lush 270. The American Syrie L.R. 4 Ad. v Ec. 226. But in this case we are entirely satisfied that the tow was upon the usual course of' south by east or south half east from Point aux Barques to the St. Clair river. It is true there is a great deal of conflicting testimony upon the point, and we cannot undertake to explain or reconcile the testimony of the different witnesses. Aside from the general rule that the witnesses upon a particular ship are to be believed with regard to her course and maneuvers in preference to an equal number of witnesses upon another ship testifying from appearance there is a strong probability that a steamer bound from one point to another will take the usual and shortest course between the two points, and in the absence of a showing of some good reason for a departure from the usual course, such he stress of weather, we feel ourselves safe in assuming that the usual course would be pursued. The Alberta 23 Fed. Rep. 807. Now, the uniform course from Point aux Barques to the St. Clair river is south half east or south by east, depending somewhat upon the deflection of the compass' or state of the wind, and when witnesses, who are not upon the tow, take the stand and testify that the course of the tow was south we have a very plain answer to their testimony. We simply do not believe them. It is utterly incredible to us that this tow, not having been driven easterly towards the center of Lake Huron by any stress of weather, and there being nothing to show that she had gotten off her proper course from Point aux Barques to Port Huron, should be sailing south southwest as she approached Lexington. Such a course would have carried her ashore in a very short time. We think then that we are bound to assume that the general course of this tow from the time she left Sand Beach until the PAGE hove in sight was south by east, and that the real question here is, what was the obligation of the MISSOURI when she made these four vessels? The testimony indicated that she first made them at a distance of seven or eight miles, too far off to render it incumbent upon her to take any steps to keep out of their way. After they had approached within two or three miles of each other two of these vessels appeared upon the port and two upon the starboard bow of the MISSOURI. It was evidently unsafe for the pilot of the MISSOURI at this point to port, because he would not only throw himself across the bows of the two vessels upon his starboard hand, but would endanger his running ashore. It was almost equally impossible for him to starboard without endangering a collision between his tow and the two vessels upon his port hand. He Judged and we think correctly, that as there was an opening between the vessels his better plan was to port slightly and go between them.. The two vessels upon his starboard hand kept their course and passed' between him and the shore. The KELDERHOUSE instead of porting, as the master of the MISSOURI supposed she was going to do, starboarded and acting upon that hint the MISSOURI also starboarded a little and endeavored to make her way between the KELDERHOUSE and the PAGE. Now, we think under these circumstances, the PAGE should have acted upon this intimation, and while she was not bound to make any decided change in her course, she was bound to consider the fact that the tug was coming down with a tow half a mile long, and should have looked out for herself to a certain extent and kept away from the tow, as with a free wind she might easily have done. We think if she had used ordinary care she might easily have avoided the collision without violating the well settled rules of navigation, but paying that regard to her own' safety, which is obligatory upon every vessel meeting another, where any risk of collision is involved. The testimony shows that she passed within 1200 feet of the MISSOURI. We think it entirely clear that if she had kept her course, or if she had kept off, as she might easily have done at that distance, she having a lee way between herself and the MISSOURI of 1200 feet, she would have passed the entire tow in safety. The cause of the collision was the fickleness of the PAGE, or her apparent uncertainly with regard to what she ought to do. If she had fallen off as we think she could have done without difficult she would easily have avoided the collision. She appears, however, to have allowed herself to get closer to the tow than was safe, and then being in peril, and perhaps in extremes, she put her helm hard down and attempted to cut across the tow. That was a desperate maneuver, and on which could hardly have failed to result in disaster. The only excuse given for it is that the master was afraid that if she jibed she would take the masts out of her, but it is suggested to me by the experienced gentlemen who have advised me in this case, that if she had dropped her after sails, or the peak of her mainsail, she might very easily have fallen off without jibing, and even if she had Jibed, it would not have injured her masts or yards. It seemed to me from the first that there could be but one result to this case, and I see no reason to change my mind in that regard.
An order will be entered adjudging the schooner MARION W. PAGE solely in fault for this collision, and referring it to a commissioner to assess the damages. The libel as against the propeller MISSOURI will be dismissed with costs.
The Marine Record
November 15, 1888