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THE MARIE PALMER (two cases). THE JAMES McCAULLEY (two cases). THE BLANCHE HOPKINS (two cases). (District Court, E. D. Pennsylvania. August 27, 1907.) Nos. 76, 77. COLLISION–SCHOONER AND TUG AND TOW MEETING—FAULT OF TUG–EVIDENCE. A tug with a schooner in tow on a hawser held, on the evidence, solely in fault for a collision between her tow and a meeting schooner in Delaware Bay at night, on the ground that she held her course directly toward the meeting schooner, until they were so close that there was

danger of collision, and then attempted to cross the schooner's bows with her tow.

[Ed. Note.—For cases in point, see Cent. Dig. Vol. 10, Collision, $84.]

In Admiralty. Suits for collision.

Howard M. Long, for The Marie Palmer.
John F. Lewis and Francis C. Adler, for The James McCaulley.
Henry R. Edmunds, for The Blanche Hopkins.

J. B. McPHERSON, District Judge. About 3 o'clock, or shortly afterwards, in the early morning of Friday, October 30, 1903, the schooner Palmer, in tow of the tug McCaulley, was in collision with the schooner Hopkins about three miles below Cross Ledge Light in the Delaware Bay. Both schooners suffered a good deal of injury, and these actions are the result. In one, the Palmer seeks to hold the tug and the Hopkins, either or both, liable for the damage inflicted upon her, and in the other the Hopkins seeks to lay all the blame upon the tug. In the latter action, the tug has impleaded the Palmer under the fifty-ninth rule.

The following facts are undisputed: The Palmer is a large fourmasted schooner, 254 feet keel, and was bound down the bay on a voyage from the port of Philadelphia to Boston, carrying a cargo of nearly 3,000 tons of coal. She drew about 23% feet, and was in tow of the tug McCaulley at the end of a hawser about 500 feet long. By direction of the captain of the tug, she had set some of her sails (the foresail, mainsail, mizzen-topsail, jib and flying jib) and, as there was a good breeze blowing from west by south, or thereabouts, her booms were on the port side. The Hopkins is a three-masted schooner of 505 tons register, and was bound to Philadelphia from Fernandina with a cargo of lumber. She was proceeding up the bay under her own sail on the port tack, nearly, but not quite, close hauled. The tide was flood, or high water slack. The night was clear, there being no fog or mist; and each of the three vessels had all of her lights properly set and burning. It appears clearly from the testimony that the presence of the Hopkins was observed by the tug about two miles away, and that the tug with her tow was seen by the Hopkins nearly, perhaps quite, as far. So far as appears, no other vessels were in the neighborhood to obstruct the navigation. Both the tow and the Hopkins were about in the center of the channel, which was from a mile to a mile and a half wide, and thus afforded ample room for the proper maneuvers;

and, with the conceded fact that the approaching vessels had more than sufficient knowledge of each other's approach, it is hard to understand how they could have failed to pass in safety. Nevertheless, it is beyond doubt that a collision between the two schooners did take place. The tug, steering a course to the eastward shortly before the impact, succeeded in crossing the bows of the Hopkins and in saving herself by a narrow margin, but the Hopkins, bound in the same direction, struck the towing hawser and sawed it in two; the result being that the Palmer continued on with the impetus of her sails and of the pull of the tug, and struck the Hopkins on the port quarter, not far from the stern; the blow, or blows, doing much injury to both vessels.

It remains to determine who was to blame. The charge of the tug against the Palmer may be dismissed with a few words. It is wholly based upon the averment that the schooner was not properly steered, and was dragging too far upon the starboard quarter of the tug; and that, if she had been following in the right place—that is, nearly behind, or slightly over on the port quarter—the tug could have pulled her clear, and the collision would not have taken place. Upon this point I shall only say that, in my opinion, the testimony fails to establish the charge of fault. On the contrary, I am satisfied that the Palmer was properly and carefully steered after the tug, that she was keeping a vigilant watch, and that she is in no way to blame for the collision. This leaves the tug and the Hopkins for further consideration, and here the opposing theories cannot be reconciled. The schooner's account is to be found substantially in the following extract from her libel:

“That at the time of the collision the vessel was by the wind on the port tack. It was the master's watch, and this deponent as such was standing aft near the man at the wheel observing the handling of the vessel. There was a competent and efficient man at the wheel and another watchful and vigilant on the forcastle-head on the lookout, and another man standing by waiting orders. That about 20 minutes before the collision hereinafter described, the man on the lookout reported the lights of the tug coming down the Delaware Bay. The tide was about high water slack. The wind was light, and with slight flaws from west by south. When first discovered, both of the side lights of the tug could be seen; the red plainly, and glimpses of the green from time to time. That, shortly after being discovered, the tug shut out her green light and showed her red light, and at this time there was no danger of any collision; both vessels being upon safe courses, the tug and her tow occupying about the center of the channel, and the schooner Hopkins to the eastward of her. The tug James McCaulley, with her tow, which subsequently proved to be the schooner Marie Palmer, at the end of a long hawser, continued on her course until very near the Blanche Hopkins, when the tug suddenly changed her course to the eastward in an attempt to go across the Blanche Hopkins' bow. That when the tug had got across the bow of the Hopkins, she blew two whistles, and, although the danger was imminent and apparently impossible to avoid, this deponent gave the wheelsman of the Hopkins an order to hard up; but the distance was so short and the time so insufficient that the Hopkins did not respond to the wheel at all. About this time the bow of the Hopkins struck the hawser between the tug and the schooner Palmer; the Palmer being at that time about four points off the port bow of the Hopkins. The hawser was broken in two, the tug went away to the eastward, and the schooner Palmer came down and struck the Hopkins on the port side two blows, the first being near the main rigging, and the second opposite the mizzen rigging, and carried away the mizzen rigging, some of the

sails, the house and wheel, and doing great damage, knocking this deponent, the mate, and wheelsman overboard."

The tug's statement is as follows:

“The tug James McCaulley, with the schooner Marie Palmer in tow, loaded with coal, and bound for Boston, was proceeding down the Delaware Bay, with the side lights of the tugboat and her towing lights and the side lights of the schooner all properly set and burning. The mate of the tugboat, who had been serving her as her mate for over two years, was in the pilot house and in charge of her navigation; it being his watch on deck. He had relieved the captain at midnight, and at that time the schooner and tugboat were proceeding down the bay; the schooner being towed astern on about 80 fathoms of hawser out. All went well with tug and tow until they were about three miles below Cross Ledge Light, when the mate of the tugboat observed the green light of a vessel, which subsequently proved to be the schooner Blanche Hopkins. The schooner was bearing slightly on the tug's starboard bow, and was between two and three miles away. The wheel of the tugboat was starboarded so as to give the approaching schooner more room and enable the schooner and tug and tow to pass in entire safety, green light to green. At this time the tug and tow were about in the center of the channel. The wind was from west southwest, blowing a fair breeze, and the schooner Hopkins and the tug and tow continued upon their respective courses, and would have passed in entire safety had not the schooner Hopkins altered her course and showed her red light to those on the tugboat, and indicating thereby that she had changed her course to the eastward. The wheel of the tug was immediately put further over to starboard, so that she might be enabled with her tow to keep more over to the eastward out of the way of the approaching schooner, and the whistles of the tugboat were blown twice to notify those in charge of the Marie Palmer, and to notify those in charge of the Blanche Hopkins of this manæuvre; but the Blanche Hopkins failed to hold the course that she was on when showing her green light to the tug, but continued her wrongful sheer to the eastward directly across the course of the tug and tow. The wheel of the tugboat was at once put hard over, and her danger signals were blown. The tugboat passed the Hopkins in safety upon the starboard bow, but the schooner Marie Palmer failed to follow, and the Blanche Hopkins, continuing her wrongful sheer to the eastward, struck and parted the tow line between the tugboat and tow, and the Marie Palmer came on and struck the Blanche Hopkins on the port quarter, inflicting the damages referred to in the libel."

It will be seen at once that it is necessary to choose between these two accounts of the transaction, and I may say, without discussing it in detail, that I have read all the testimony attentively, and am of opinion that the weight of it is with the schooner. She had the right of way, and it is incredible to me that she should have held a course safe to both vessels until she had come within about 200 yards of the tug, and should then have deliberately and needlessly chosen the certainly fatal course of crossing the bows of the McCaulley. No reason for this extraordinary movement appears, and it is, I think, more probable that the tug held on too long, perhaps miscalculating the distance or the combined speed of the approaching vessels, and suddenly found herself in a position from which only the desperate measure of a quick sheer to the wrong side of the channel could save her. Her quickness of movement did save herself, but her heavy, slow moving tow could not escape.

In my opinion the tug was solely at fault, and decrees to that effect may be drawn, including a reference to a commissioner.

OMAHA PACKING CO. V. SANDUSKI.

(Circuit Court of Appeals, Eighth Circuit. July 22, 1907.)

No. 2,585.

1. MASTER AND SERVANT-INJURY OF SERVANT-EVIDENCE OF MASTER'S NEGLI

GENCE.

The mere fact that an accident happened by which a servant was injured does not itself create a presumption of negligence on the part of the master, and, where negligence is charged as a ground for recovery by the servant against the master, the burden is upon the plaintiff to show that by some act or omission the defendant violated some duty he owed to the plaintiff which caused the injury.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 34, Master and Sery

ant, 88 881, 895.] 2. SAME-DUTY OF MASTER-SAFE PLACE TO WORK.

The rule which makes it the positive duty of a master to exercise reasonable care to provide a servant with a reasonably safe place in which to work, even if it extends to providing a reasonably safe mode of entrance to and exit from the place where the workmen are employed, is not applicable to a case where the place becomes dangerous in the progress of the work either necessarily or from the manner in which the work is done.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Serv

ant, 8 550.] 8. SAME-CONDITION OF WAY.

Plaintiff was employed on the third floor of defendant's packing house, which was reached by an outside stairway running up from a platform, 10 to 14 feet wide, extending along the side of the building. This platform was used by other employés in conveying meat on trucks from one part of the building to another, and there were more or less drippings from the trucks which in cold weather froze upon the platform. After plaintiff had been so employed for three years, in walking along the platform from the stairway in going from work one night in the winter, he slipped on the platform, and was injured. Held that, assuming that the fall was caused by ice resulting from such drippings, it was not due to any neglect or breach of duty on the part of defendant, but to a cause the risk from which was known to and assumed by plaintiff.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, 8 610.]

In Error to the Circuit Court of the United States for the District of Nebraska.

Ralph W. Breckenridge (Charles J. Greene, on the brief), for plaintiff in error.

Constantine J. Smyth (Edward P. Smith, on the brief), for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District Judge.

RINER, District Judge. This is an action to recover damages for personal injuries alleged to have been suffered by the defendant in error by reason of the negligence of the plaintiff in error.

Louis Sanduski, plaintiff in the court below (referred to hereinafter as the plaintiff), at the time of his alleged injuries, January 20, 1906, was in the employ of the Omaha Packing Company, defendant in the court below (referred to hereinafter as the defendant), in its

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packing house, located at South Omaha, in the hog casing room, or department, and had been so employed for about three years. The room where the plaintiff worked was located in the third story of the building, connected with the defendant's packing plant and accessible from the street by means of a platform and stairway. The platform was 600 feet long, and between 10 and 14 feet wide. There is some conflict in the evidence as to its exact width. The platform, where it connected with the stairway leading up on the outside of the building to the door of the room where Sanduski worked, was between 10 and 15 feet above the ground. John Tnczar, a witness for the plaintiff, testified that it was “maybe 10 and maybe 12” feet from the foot of the stairs to the edge of the platform. There was a railing along the outside of the stairway, but no railing on the platform. It had, however, two pieces of two by four timber spiked to the edge of it. The platform sloped slightly toward the building; the outer edge being about three inches higher than the inner edge. The platform was used, not only as a passageway for employés going to and from their work, but also for trucking the product of the plant, as one of the witnesses puts it, “from the beef house to the tank room,” located at different points along the platform, and had been so used during the entire time of plaintiff's employment. The testimony shows that in this trucking process, if there was anything wet in the product conveyed by the trucks, the water would drip off on the platform, and that there usually was water dripping from the product carried on the trucks. All of this was known to the plaintiff. He testified that he knew the platform was used by truckers every day, in cold as well as warm weather, and that water dripped off the meat carried on the trucks onto the platform, and that during his entire term of service he had used this platform and stairway as a passageway in going to and from his work, sometimes during the day time and at other times after dark. As to the condition of the platform on the morning when plaintiff went to work, the testimony is not altogether clear. Tnczar, who went to work about the same time plaintiff did, testified that he did not see any ice on the platform. Zalinski, another witness, could not say whether there was ice on the platform in the morning. Plaintiff at first said there was ice on the platform, but subsequently said he did not notice whether the platform was frozen or not in the morning. Plaintiff testified that on the day of his injury he went to work in the morning about 6:45, and quit work at about 6:30 in the evening; that it was dark both when he went to work in the morning and when he quit in the evening; that he descended the stairs on the outside of the building leading from the third story down to the platform; that he took a few steps after reaching the platform, when he slipped, and that was all he knew. He testified also that the night was foggy. He could not say whether there was ice on the platform, but stated that he felt “under his feet it was kind of slippery, but not long, and slipped, and that is all he knew.” The record does not disclose who found him when he was picked up, or the condition in which he was found. Both Tnczar and Zalinski testified that there was ice in ridges on that part of the platform where they trucked beef, and, when asked how high these ridges were, said they were small. Tnczar further testi

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