Copyright USGenNet Inc., 2016 All Rights Reserved USGenNet Data Repository Please read USGenNet Copyright Statement on this page: Transcribed and submitted by Linda Talbott for the USGenNet Data Repository http://www.us-data.org/ =========================================================================== Formatted by USGenNet Data Repository Chief Archivist, Linda Talbott All of the above information must remain when copied or downloaded. =========================================================================== UNITED STATES COURTS OF APPEALS REPORTS, Volume 53 CASES ADJUDGED IN THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT AT OCTOBER TERM, 1896, and OCTOBER TERM, 1897 Samuel A. Blatchford, Reporter [309-318] THE CITY OF NAPLES. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DIVISION OF THE NORTHERN DISTRICT OF ILLINOIS. No. 265. Argued May 26, 1896. - Decided June 12, 1897. The steamer CITY OF NAPLES entered the port of Chicago on the morning of April 19, 1893, and went into a slip. There she tied up alongside another steamer with her bow to the north and projecting beyond the stern of the other steamer, which lay alongside the eastern pier and was moored thereto with her bow projecting south of or across the southern boundary or line of entrance into the slip. There was no exceptional weather when the CITY OF NAPLES first took up her posi- tion, but by noon of that day there was a gale which increased in violence until, during the night, it became a storm of unusual and extraordinary severity. The bow of the City of Naples was exposed to the full force of the storm from the east. Shortly after 1 o'clock in the night the after lines of the CITY OF NAPLES snapped, and then her lines amidship. Her bow lines held, but her stern went adrift under the force of the wind. Prior to that time the lines which she had originally used in making fast had been replaced by stronger lines, including a hawser extending from the bow to stringers on the eastern pier, and when the stern of the CITY OF NAPLES went adrift all the lines which she had, and she had a full compliment of good lines, were in use. A little before dark on that day a schooner which had been moored in another place, where she could have remained in safety, was towed into the slip where the CITY OF NAPLES was, and was tied up alongside the western pier of the slip, immedi- ately west and under the lee of the CITY OF NAPLES. When the after lines of the CITY OF NAPLES had parted her stern was driven away by the storm from the other steamer against the schooner, doing some trifling damage. The engines of the CITY OF NAPLES were at once started, her helm was put hard-astarboard, and by force of her rud- der against the current of her wheel her stern was carried toward the other steamer some twenty to thirty feet from the side of the schooner. The CITY OF NAPLES remained in this position, steaming against the force of the storm and driven a little forward with her bow wedged among certain scows which lay across the northern portion of the slip, for nearly an hour, when one of her rudder chains was broken, the rudder failed to respond against the current made by the wheel, and her stern was thrown against the schooner, which was sunk. A libel having been filed by the owner of the schooner against the CITY OF NAPLES, it was held (1) that, as the schooner had volun- tarily become a part of a dangerous situation, with reference to the position of the CITY OF NAPLES, when she took her berth, and as the crew of the CITY OF NAPLES were already getting out additional lines, and as the storm was fairly on, and was increasing in vio- lence, it was probable that a collision, disastrous to one or the other of the vessels, would take place if the stern of the CITY OF NAPLES was blown adrift; (2) that, followign the case of The Vivid, 1 Maritime Cases, New Series (Aspinall), 601, the CITY OF NAPLES was not bound to take more than reasonable and ordinary precautions to prevent collision, which, upon the evidence, and under all the cir- cumstances, she did; (3) that the CITY OF NAPLES, under all the cir- cumstances, made a reasonable and proper use of her hawser; (4) that the CITY OF NAPLES was not bound to change her position when the schooner came into a place of danger; (5) that there was no satis- factory basis in the evidence for any finding of negligence on the part of the CITY OF NAPLES, because, as was claimed, when the rudder chain broke its crew did not ship the tiller; and (6) that the CITY OF NAPLES was not responsible for the damages resulting from the collision. JENKINS, Circuit Judge, concurred in the result upon the ground that, under the circumstances, no fault was cast upon the CITY OF NAPLES, and reserved his judgment as to whether the ruling in the case of The Vivid was applicable. Before WOODS, JENKINS, and SHOWALTER, Circuit Judges. The case is stated in the opinion. Mr. William H. Condon for the libellant, appellant. Mr. Charles E. Kremer for the claimant, appellee. SHOWALTER, Circuit Judge, delivered the opinion of the court. Late at night on the 19th day of April, 1893, the steamer CITY OF NAPLES collided with the schooner CITY OF SHEBOYGAN, then moored on the western side of the Lighthouse Slip in the port of Chicago. The schooner, which was laden with seventeen thousand bushels of corn and bound for Port Huron, in the State of Michigan, sank as the result of the collision. This proceeding was instituted by John Hart, the owner of the schooner. After a hearing in the District Court the libel was dismissed, with costs against the libellant. Pending the hearing John Hart died, and Teresa Hart, his administratrix, who prosecutes this appeal, was substituted. THE CITY OF NAPLES. Opinion of the Court. The slip spoken of in the record as the Lighthouse Slip is rect- angular in form and about two hundred and seventy-five feet wide from east to west. The precise length from north to south is not stated. The indications from the record are that the length is about four hundred feet. The southern side of the slip is open, that being the place of entry. What is or was called the Peshtigo Slip comes into the Lighthouse Slip from the west, its northern boundary or pier being in line with the northern pier of the Lighthouse Slip. The distance from the northern end of the western boundary of the slip last-named, north to the northern boundary of the Peshtigo Slip, - in other words, the width of the Peshtigo Slip was wide enough to permit the entry and passage by one another, lengthwise, of large vessels. On the day and night in question a flotilla of scows, some eight or ten, each thirty to forty feet wide and sixty to eighty feet long, lay in the eastern end of the Peshtigo Slip and across the northern portion of the Light- house Slip. The eastern pier of the slip last named was about twenty feet wide; how far it projected above the ordinary water-line is not stated. From the southern terminus of this eastern pier another pier extended easterly, perhaps eight hundred feet, into the open sea. The latter pier was higher by three feet than the eastern pier of the Lighthouse Slip. On the day and night in question the large schooner the GOLDEN AGE lay along the southern side of this latter pier, her bow to the east and her stern fifty feet from the exterior angle made, as described, by the two piers. On this corner stood a stout spile, whereto were fastened one or more lines from the GOLDEN AGE. Thus placed, and with lines to other spiles farther east on the pier, the GOLDEN AGE safely rode out the storm which prevailed on the afternoon and night of the 19th of April, 1893, as mentioned later in this opinion. The southwestern angle of the Lighthouse Slip is the eastern terminus of the northern boundary of the Chicago River. Between the southern pier or boundary of the Peshtigo Slip and the said northern pier or boundary of the river extends a tongue of dry land to the western pier or boundary of the Lighthouse Slip. For two or three weeks prior to the 19th day of April, 1893, the steamer JOHN B. LYON lay in the Lighthouse Slip alongside the eastern pier and moored thereto. On the day in question she lay with her bow projecting south of or across the southern boundary or line of entrance into the slip. She was made fast by lines at intervals to the pier, her bow lines being attached to the spile above mentioned as holding the stern lines of the GOLDEN AGE. On the morning of the said 19th of April the steamer CITY OF NAPLES arrived in the port of Chicago. For want of an accessible berth up the river, which was at that time crowded, and by direction of the harbor- master, the NAPLES entered the Lighthouse Slip and tied up alongside the LYON, with her bow to the north and projecting sixty to sixty-five feet beyond the stern of the LYON, and her fantail, according to some testimony, on a line with, or, according to other testimony, project- ing a few feet beyond the bow of the LYON. The NAPLES was a large ves- sel, three hundred and twenty feet over all, with forty-two feet beam. The top of her pilot-house was forty-eight feet and her forward upper deck thirty-five feet above the water. She drew eleven feet aft and four and a half feet forward. The LYON was two hundred and fifty-five feet long and was loaded. The testimony does not affirmatively show exceptional weather con- ditions when the NAPLES first took this position. At noon on that day there was a gale from the east of forty miles an hour. The velocity of the wind increased through the afternoon and night. At dark the velo- city was seventy-two miles an hour, still directly from the east and across sixty miles of open sea. The direction and force of this storm was unusual and extraordinary, even at that season of the year. At the hour last mentioned the water was and had for some time been pouring over the eastern pier of the Lighthouse Slip and threatening to cast against, or upon or over, that pier the barge MIKE CORRY, which under stress of the storm had drifted, dragging two anchors, from the out- side into that vicinity. The night was dark and cold, and rain was falling. It will be seen from what has been said that the after portion of the NAPLES, which lay deep in the water, was immediately in the lee of the pilot-house and texas of the LYON, the comparatively high pier which extended easterly, and the stern of the GOLDEN AGE; while the bow of the NAPLES with the structures thereon was exposed to the full force of the blast from the east, the lower pier on that side and the low after portion of the LYON as far as it extended affording little or no shelter. Shortly before 1 o'clock that night, and when the velocity of the storm had reached sixty-four miles an hour, the after lines of the NAPLES first snapped, then her lines amidships. Her bow lines held, but her stern went adrift under the driving force of the wind. Between 3 and 4 o'clock in the afternoon the mate had replaced the six-inch line first used at her bow with a nine-inch hawser, carrying one end of the latter forward of the bow and attaching it to a stringer on the eastern pier near the northern corner of the slip, and carrying the other end aft to another stringer, so that the bow might be held in position and the ranging of the vessel prevented. Before 6 o'clock two additional lines (making three at that place) were extended from the timber-head of the NAPLES forward of the boiler house diagonally across the LYON and with a straight and unobstructed lead to the spile already mentioned near the southeastern angle of the slip. Other lines, which were afterward increased to the number of five or six, led from the stern of the NAPLES across to and were made fast on the bow of the LYON. These latter were five-inch lines; those forward of the boiler-house were six-inch lines. Some of these lines were entirely new, and all were good lines. When asked why he did not extend his lines from the stern of the NAPLES to the spile on the pier, the mate answered that he could not do so without passing them around the projecting stem of the LYON. The testimony is that all of the lines which the NAPLES had, - and she was supplied with a full complement according to the witnesses, - were in use when her stern went adrift. About dark, or a little before, on that day the SHEBOYGAN, which had up to that time been moored to the northern pier of the river west of the Lighthouse Slip, - a place where she could have remained in safety, being there end on to the storm and apparently less exposed than the GOLDEN AGE, - left that position, and, intent apparently upon greater safety, was towed into the Lighthouse Slip. She there took a berth and was tied up alongside the western pier and immediately west and under the lee of the NAPLES. When this was done the velocity of the wind was at least fifty miles an hour and constantly increasing. When toward 1 o'clock that night the after lines of the NAPLES parted, as already said, her stern by stress of the storm was driven away from the LYON and against the SHEBOYGAN, doing some trifling damage. Her engines were at once started, her helm put hard-astarboard, and by force of her rudder against the current of her wheel her stern was carried toward the LYON and some twenty to thirty feet from the side of the SHEBOYGAN. Here she remained, steaming against the force of the storm and driven a little forward with her bow wedged among the scows, for nearly an hour, when one of her rudder-chains was broken, apparently by some obstruction, supposed to be a floating timber, getting caught in her wheel. The rudder no longer responded against the current made by the wheel and her stern was thrown once more against the SHEBOYGAN, striking the schooner well forward and making the hole which sunk her twenty minutes later. The NAPLES was driven still farther forward by the slanting force of the wind. Her engine had been stopped when the rudder-chain broke. It is testified that up to this time her bow lines, or one of them, still held. However that may be, and whether the stringers on the pier to which the ends of the hawser were attached were pulled loose then or before, it is certain that no damage resulted to the SHEBOYGAN through any default in the forward lines or fastenings of the NAPLES. Her bow, as stated, was wedged tightly between the scows. The second mate at this time cut the lines which held the scows, and thereupon the bow of the NAPLES swung around, and she drifted into the Peshtigo Slip, driving the flotillia of scows ahead of her. Before the stern lines of the NAPLES first parted she had signaled repeatedly for a tug by blowing her whistle. When she first went adrift she signaled again; and while steaming against the wind, as de- scribed, after the initial collision she whistled repeatedly. But no tug came until after the final collision. It is testified, however, that under the conditions then existing, - or as they had been since 9 o'clock that night, - it would hardly have been possible for a tug to render any assistance. During the interval, while the NAPLES was held away from the SHEBOYGAN by her wheel and rudder, her crew, some of whom climbed down on the scows and thence reached the pier, attempted to get lines out once more, but were unable to do so. Under the circumstances above detailed, what was the extent of the obligation due from the NAPLES to the SHEBOYGAN? The Vivid, 1 Maritime Cases, New Series (Aspinwall), 601, was a collision case. The schooner Vivid was moored with her bow toward the shore. She was held by her starboard anchor, the chain thereof leading aft, and a spring line from her starboard quarter to said anchor chain, and by a line or warp fast to a capstan on shore. The schooner Victor, with her bow also to the shore, lay west of the Vivid, secure- ly moored, and held in position by means of shore and anchor lines. The wind, being from the south, freshened, changed, and blew strong from the southeast. The lines of the Vivid were then made taut, and her bow line to the shore was moved to another capstan farther away from the Victor; but her stern, in spite of her fastenings, was blown around to the westward and in collision with the Victor. Her port counter striking the starboard quarter of the Victor, the latter vessel was thereby sunk. The fastenings of the Vivid proved insuf- ficient to hold here in position under stress of the wind. A line from her starboard quarter to the shore or a second anchor would have held her. Moreover, these means or either of them were then available. But such means were unusual or extraordinary and were not needed in the first instance to keep her in position. The court, Sir R. J. Philli- more, ruled that the Vivid was not bound to use these extraordinary precautions and dismissed the libel. The ground of this ruling was that after the Vivid had taken her berth and made fast, as described (but before the change in the wind), the complaining vessel, the Victor, took the berth which made the collision possible. In other words, and in the language of the sea, the Victor had given the Vivid a "foul berth." The Victor, it may be said, had the right to be where she was, but she took the risk of the collision. She could not impose on the Vivid any duty to use extraordinary precautions. Both vessels were engaged in unloading coal, and for this purpose their fastenings were meant to hold them in the positions described, with their bows to the shore. In the case at bar the SHEBOYGAN became voluntarily a part of the dangerous situation. When she took a berth under the lee of the NAPLES the crew of the latter vessel were already getting out additional lines. The storm was fairly on and increasing in violence. That a col- lision, probably, disastrous to one vessel or the other, would take place if the stern of the NAPLES were blown adrift was a consequence easily discernable. The NAPLES was not in relation with the SHEBOYGAN at all and owed no duty to her until she chose to take the new berth at nightfall. Could the SHEBOYGAN by this manoeuvre create as against the NAPLES any obligation beyond that of using reasonable and ordinary precautions with the means available in her then position and in the then state of her environment to prevent collision? Let it be conced- ed, though the evidence upon the point is conflicting, that by some use of her hawser (which was seven hundred and twenty feet long) dif- ferent from that in fact made it might have been possible to hold the NAPLES fast, or that after the SHEBOYGAN had taken her berth the NAPLES might in the face of the storm have loosed her moorings and found a place of safety elsewhere, either in the river or in the Peshtigo Slip, or that she might have moved farther forward on the eastern side of the Lighthouse Slip and attained more secure fasten- ings, though this could hardly have been done, - is she therefore liable to the SHEBOYGAN? In the light of the case above cited, on what would seem the rational view of the matter, we think not. To hold a vessel at her moorings is not the ordinary or appropriate function of a hawser. The hawser in this instance was voluntarily put out to hold the forward portion of the NAPLES before the SHEBOYGAN came into the situation. It thereafter remained where it had been put. We cannot say from the evidence that this, under the circumstances, was not the reasonable and proper use of the hawswer. The position of the NAPLES, the berth occupied by her, and its environment were apparent to the SHEBOYGAN when the latter vessel came into the place of danger. Is it law that the NAPLES became at once bound to change her position, or else be responsible for a collision which the manoeuver of the SHEBOY- GAN made possible under weather conditions then present? It is suggested that when the rudder-chain broke, - and the evi- dence is that this chain had been inspected within a week and was then sound and staunch, - the crew should have shipped the tiller. It is said that by this means the rudder could have been brought again under control and the NAPLES kept away from the side of the SHEBOYGAN. As indicating the fury of the storm a few minutes after the NAPLES first parted from the LYON, the strong and sound after timber-head of the latter vessel snapped under the strain of her lines and her stern was blown from the pier till she went aground. When the rudder-chain of the NAPLES broke, as above stated, the velocity of the wind had in- creased to seventy-two miles an hour, and the stern of the NAPLES was then only twenty feet, or thereabouts, away from the SHEBOYGAN. We cannot say and no witness has testified that, under the circumstances as shown in the evidence, it would have been practical to arrest the swift movement of the vessel and avoid the threatened collision by any substitution of other steering aparatus in the emergency of the broken rudder-chain. There is no satisfactory basis for any finding of negli- gence on this account; nor can it be fairly concluded that the crew of the NAPLES, at any time after the SHEBOYGAN came into the slip, so far failed in reasonable endeavors and precautions with the means at hand as to make the NAPLES liable to the SHEBOYGAN. The decree of dismissal is Affirmed. JENKINS, Circuit Judge, concurring in the result. I concur in the result reached, but upon the ground that under the circumstances no fault is cast upon the CITY OF NAPLES. The harbor above the bridge was closed to her by reason of the congestion of shipping there. She was therefore compelled to seek such shelter as was afforded by the Lighthouse Slip. The testimony declares that she used all proper and necessary appliances for secure mooring both be- fore and during the storm. Indeed, it cannot be justly said that any proper effort was wanting to secure her in her position during the prevalence of the gale. If fault there was, it arose from taking a position outside the LYON, but that would seem to have been a neces- sity of the situation. It does not satisfactorily appear that she could have done otherwise. I have doubted whether the CITY OF NAPLES was not in fault for failure to ship her tiller and start her engines after her rudder- chain broke, and thereby to keep her stern away from the SHEBOYGAN. The evidence upon this point is quite meager and unsatisfactory, and but little stress seems to have been placed upon it. At the time of the breaking of the rudder-chain the stern of the CITY OF NAPLES was but twenty or thirty feet away from the SHEBOYGAN, and in a gale of wind of seventy-two miles an hour driving her stern directly toward the SHEBOYGAN it may be doubted if the manoeuver of shipping her tiller, starting her engines, and obtaining sufficient headway to prevent the collision could have been successfully adopted. At all events, the evidence upon that subject is too inconclusive to warrant a finding of fault. As I read the testimony there was nothing, other than the pre- valence of the gale, to indicate to the master of the SHEBOYGAN, when she moved into the slip and moored at the dock opposite to the CITY OF NAPLES, that the latter was either insecurely moored or was liable to part her lines. I therefore reserve my judgment whether the ruling in the case of The Vivid, referred to in the opinion of the court, is applicable here. I do not know that the doctrine of "foul berth" has been applied to vessels moored to a dock. ==========================================================================