Copyright USGenNet Inc., 2014 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 63 Cases Adjudged in the United States Circuit Courts of Appeals For the First, Second, Third, Fourth, Fifth, Seventh and Eighth Circuits In January and February, 1899 Samuel A. Blatchford, Reporter [162 - 172] SECOND CIRCUIT, 1899 Syllabus. THE MAURICE B. GROVER. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK. No. 11. Argued December 16, 1898 - Decided January 25, 1899. The steamer JOHN V. MORAN, while bound up the St. Mary's River, ran aground at the westerly side of the channel below what is known as the crib, and lay there with her stem projecting at right angles with the channel until about dusk. The channel at that point for half a mile up the river and running in a northerly direction is straight, and then deflects sharply to the west around an island known as Sailors' Encampment, and below the crib runs southerly a short distance and turns again somewhat abruptly to the westward. The stem of the MORAN projected so far into the channel as to impede seriously the maneuvers of vessels descending the river in making the turn below the crib. At about dusk the steamer MAURICE B. GROVER was bound down the river, and as she rounded the northerly side of Sailors' Encampment she gave the customary whistle at the bend to indicate her approach. Those in charge of her navigation saw the MORAN, saw her masthead and red lights, saw that she was stationary, although her propeller was moving, and assumed that she was an awaiting vessel, it then being customary for ascending ves- sels to pass. Those in charge of the GROVER did not observe the MORAN vigilantly, and devoted themselves to the navigation of their own vessel until they passed a dredge in the channel about half way between the bend and the MORAN, when the master concluded that he could not pass the bow of the MORAN and make the channel turn with safety to his own vessel. He therefore increased the speed of his vessel, and when he was about three hundred feet above the MORAN he ordered her helm hard-aport and soon after her engines backed, in- tending to pass the MORAN on the port side and expecting to see her go ahead under a helm to throw her stern to starboard and out of the way of the GROVER, which latter vessel, though only under sufficient motion to give steerage way, struck the MORAN nearly amidships on the port side. The MORAN was under her sailing-lights while she was aground. HELD, (1) That on the evidence the master of the GROVER acted upon his best judgment at the time he starboarded the course of his vessel, it not appearing that she could have passed in front of the bow of the MORAN and made the turn in the channel without risk of running upon the rocks; (2) that on the evidence those in charge of the GROVER were justified in their assumption that the MORAN was an awaiting vessel, and in relying upon that supposition until it was too late to take any more effective measures for avoiding collision than those which were taken; (3) that the MORAN was in fault because she was under her sailing-lights while aground, and by carrying them she advertised herself as being under way, and actually misled the GROVER; (4) that the failure of the GROVER to give the signal prescribed by Rule 24 of the act of February 8, 1895, regulating "navigation on the Great Lakes and their connecting and tributary waters," 28 Stat. 645, c. 64, by which the descending vessel in the St. Mary's River and in other rivers is given the right of way, and required when two steamers are meeting to indicate which side she elected to take, did not influence, and could not have influenced, the movements of the MORAN, even if the rule ap- plied to a case such as the present, where one of the vessels was lying still; (5) that if the MORAN could have given any signal to the GROVER to indicate her inability to control her movements, it was so doubtful whether those in charge of the GROVER would have understood the signal to be meant for them that an omission to give any such signal could not be treated as a fault contributing to the collision; and (6) that the master of the GROVER acted upon a reasonable judgment in view of the circumstances as they were pre- sented to him at the time, and if he made a wrong judgment it was an error, and not a legal fault. Before Wallace, Lacombe, and Shipman, Circuit Judges. In admiralty, in rem. The libel herein was filed in the District Court of the United States for the Northern District of New York on June 15, 1896, by the Union Transit Company, as owner of the steamship JOHN V. MORAN, against the steamer MAURICE B. GROVER, to recover damages caused by a collision between the two vessels at about 7:30 o'clock in the afternoon of May 7, 1896, in St. Mary's River. The claim and answer of the Ohio Transit Company, the owner of the MAURICE B. GROVER, was filed on July 14, 1896. The case was heard on the pleadings and proofs by Judge Coxe, who on March 26, 1897, rendered the following opinion (79 Fed. Rep. 378): - "On the 7th of May, 1896, the steamers MAURICE B. GROVER and JOHN V. MORAN collided in the St. Mary's River at a point about three hundred feet south of the light crib at Sailors' Encampment Island. The MORAN was proceeding from Buffalo to Duluth, loaded with six hundred or seven hundred tons of freight. She is two hundred and fourteen feet on the keel, two hundred and thirty-four feet over all, and thirty-seven feet beam. On the day in question she drew about twelve feet two inches aft and seven feet forward. After having delivered some freight at the Mill Dock she resumed her voy- age, and in crossing the shoal below the light crib she ran aground about five o'clock in the afternoon and remained there until she was struck by the GROVER some two hours afterward. The GROVER is three hundred feet over all and forty eight inches beam. She was loaded, and was proceeding down stream, destined for Buffalo. Her draught was about thirteen feet ten inches. "Navigation at the Sailors' Encampment Channel has always been regarded as dangerous, and particularly so in May, 1896, when the water was unusually shallow. At a point known as 'the dark hole,' some distance above, the GROVER gave the usual bend whistle to warn approaching vessels that she was coming down the river. At the turn above the crib a dredge was lying near the line of the channel, which is about three hundred feet in width. To make the turn, avoid the dredge, and straighten up on the Encampment range line was a maneuver of considerable difficulty. The GROVER accomplished it about sundown, and was proceeding on the usual course when she became aware that the MORAN was lying in the channel below the crib. The exact position of the MORAN at this time is in dispute, but the court is of opinion, after giving due weight to all the testimony, that she was lying across the western half of the channel, headed a little up stream, her bow pointing toward Ross's Dock and reaching to or nearly to the range line which marks the center of the channel at this point. It is impossible to locate the MORAN with perfect accuracy, but it the libellant's theory of her position is accepted without qualification the court must not only convict of perjury a large number of respectable and disinterested witnesses who say that they saw the MORAN'S bow over the range line, but it must find the master of the GROVER guilty of incredible stupidity in attempting to go under the stern of the MORAN when substantially the entire chan- nel was open before him. On the other hand it is impossible to see how the MORAN could have extended thirty or forty feet beyond the range line when the mark on her keel indicated that she was held by an obstruction on the shoal some eighty feet from her stern. Again, it is undisputed that on passing close to the black stake the GROVER put her helm hard-aport, and that she was still swinging to star- board when the collision occurred. A simple experiment will demon- strate that it would have been impossible for her bow to strike the MORAN one hundred and eight feet from the latter's bow if she had been lying where the claimant locates her. To a layman it seems im- possible that the GROVER under a port helm, and still swinging to starboard after passing the black stake, could have hit the MORAN amidships at a point only about seventy feet west of the center of the channel. The safer way in these cases is to give credence to all the evidence and the presumptions to be drawn therefrom and to locate the vessels as accurately as possible from the general con- sensus of all the testimony. "At the time of the collision the MORAN had up her running- lights. She gave no signal to the GROVER at any time, but just pre- vious to the collision, and after the GROVER had straightened up on the Encampment range, she blew a signal of four blasts for the tug to come to her assistance. The tug answered the signal, but those in charge of the GROVER swear that they did not hear the answer. The signal of four blasts may mean a call for a tug or it may mean 'hurry up,' depending upon the length of the blasts. At the time of the collision the sun had gone down behind the western trees, but it was still light, and there is no pretense on either side that any embarrassment was occasioned by fading or insufficient light. There was no wind which at all affected navigation. The current at the Encampment is between two and three miles an hour. The chart intro- duced in evidence indicates that for a considerable distance east of the channel and below the point where the MORAN lay the water was deep enough for the navigation of a vessel of the draught of the GROVER. On the other hand there is evidence that vessels similar in size have touched bottom there. It is not pretended that the col- lision was due to inevitable accident. It is conceded on all sides that it was the result of careless seamanship. "The accusations against the MORAN are as follows: "1. She went aground negligently. She knew of the improvements being made and of the coamings thrown up in cutting the new channel. She was warned of the shoal orally and by the flags which marked the danger limit. She took the risk deliberately and with full know- ledge of the situation, when, had she gone below the flags, there would have been no danger of grounding. "2. Having gone aground at a point where she was a menace to passing vessels, it was her duty to get away as quickly as possible. A tug offered her services immediately, and there is every reason to believe that had they been accepted the MORAN would have floated long before the GROVER appeared upon the scene. Negligence is pre- dicated on the refusal to accept the assistance of the tug. "3. It is said that the MORAN was negligent in displaying her running-lights. Seeing her red light and white foremast light, a descending vessel had a right to assume that the MORAN was under way and crossing the river. "4. The MORAN should have given a danger signal. She was lying directly across the westerly half of a narrow, shallow, and diffi- cult channel, at a point where the channel takes a sharp westerly turn. She was aground and helpless. She should have informed the GROVER of her plight. "5. It was a palpable fault for the MORAN to give the signal for the tug after the GROVER had made the turn above the light crib and a collision seemed probable. "There is a force in all of these propositions, but the last two only will be considered. When the GROVER gave the bend signal at the dark hole it was clearly the duty of the MORAN to answer it. This would be so in any case. The GROVER, hearing no response to her signal, had the right, pursuant to the Inspectors' rule, to con- sider the channel at the Encampment clear. But if this was a duty devolving upon the MORAN when under way, how much more was it her duty when lying aground! Without doubt the GROVER was entitled to notice of this fact. How was she to know that a vessel lying below the crib was aground? How could the GROVER maneuver intelligently in ignorance of this fact? There was danger in the MORAN'S posi- tion. She should have given the danger signal in time. The F. W. Wheeler and The Ashland, 47 U.S. App. 368. If the GROVER had known before making the turn upon the Encampment range that the MORAN was aground the collision would have been avoided. Instead of doing this the MORAN remained silent when she should have spoken, and spoke when she should have remained silent. When it was too late to give any signal which could avail, and just at the time when the situation was critical and becoming dangerous, the MORAN gave four blasts upon her whistle. This was intended as a call for assistance from the tug. But if the blasts were short, and they may well have been curtailed in the excitement of the moment, the signal was an invitation to the GROVER to 'come on,' to 'hurry up.' It was so understood by the master of the GROVER. It is not important to in- quire whether the GROVER was justified in mistaking the signal. The GROVER was so near at the time that it was impossible for the tug to render any assistance before the GROVER passed. The MORAN should have waited until the danger was over before complicating still further an already hazardous situation by a premature and misleading signal. The problem confronting the GROVER was difficult enough without adding a new element of uncertainty. To give at such a time an unnecessary signal which might be misconstrued into a request to do the worst thing possible was a grave fault. "The GROVER is charged with fault in the following respects: (1) That she proceeded at too great a rate of speed; (2) that she did not maintain a competent lookout; (3) that she was not manned by a competent and sufficient crew; (4) that she did not stop and re- verse in time; and (5) that she should have turned her head to the eastward and passed around the bow of the MORAN instead of attempt- ing to run under her stern. There is no evidence to establish the first four of these propositions. The evidence is uncontradicted that the GROVER checked down three times before reaching the Encamp- ment range and was proceeding at a slow rate of speed, barely suffi- cient to give her steerage-way. She had a full complement of officers and men, and they were at their respective posts. The mo- ment a collision seemed probable her engine was reversed, and she was backed with all the power at her command. The sole question, then, to be considered is whether or not negligence can be imputed to the GROVER in porting instead of starboarding when a short dis- tance - about one hundred and fifty feet - above the crib. Viewed in the light of all that is known it certainly seems that it would have been wiser if the GROVER had attempted to pass across the bow of the MORAN. Other vessels, alone and with tows, had passed her bow in safety both ascending and descending the river. One of these, the MENEDOSA, in tow of the GLENGARRY, was approximately of the same size and draught as the GROVER, but the testimony estab- lishes the fact that she rubbed against the shoal to the eastward of the channel in making the turn. It should also be borne in mind that the bow of the MORAN had swung down during the time she lay aground and projected farther into the channel at the time of the collision. But it is manifestly unfair to judge the GROVER in the light of the situation as it is now developed. The judge should endeavor as far as possible to place himself in the position of the master of the GROVER, and pass judgment upon his action in the light of what was known at the time. Had the master known that the MORAN was aground three hundred feet from the crib, had he known of the shoal and of the danger which confronted him, it would not be diffi- cult to inculpate the GROVER. At the trial it was thought that this view might with propriety be taken, but the more the record has been studied, the more settled has become the conviction that the GROVER cannot be held responsible for mere errors of judgment committed in extremis, errors fairly attributable to the negligence of the MORAN. The GROVER supposed that the MORAN was under way. She was headed directly across the river. To attempt to run across her bow in such circumstances would have been culpable negligence. The master of the GROVER did not know of the presence of the shoal at the point where the MORAN lay. Few of the river pilots knew of it. The master of the MORAN was certainly ignorant of it, or he would not have attempted to cross at that point. A number of accomplished mariners whose experience is unquestioned testified that it would have been impossible to pass the bow of the MORAN without running upon the rocks. Others thought it was possible; but that is not material as bearing upon the proposition now under consideration. The question is not whether the GROVER adopted the best possible course, but whether she adopted the best course in the sudden exi- gency which confronted her. Did the master of the GROVER do what a prudent mariner in like circumstances might have done? By reason of the seemingly inexcusable fault of the MORAN he found himself fact to face with a sudden peril. He had to choose in a moment whether to turn to the right or to the left. He decided to take the usual course and go to the right. This course seemed to him at the time to present fewer obstacles than the other. There was danger no mat- ter which course he adopted. There was no time for nice calcula- tion. The dilemma was made by the MORAN; he was not responsible for it; he did what seemed to him best. Assume that he was wrong: the rule is clear that a vessel cannot be held liable for mistakes com- mitted in such exigencies. It is argued that the GROVER was at fault for not giving the signal required by Rule 24 of the act of February 8, 1895. 28 Stat. 645, 649, c. 64. The rules seems in- applicable to the case at bar for the reason that these steamers were not 'meeting.' In any view it is not perceived how the signal could have aided the MORAN, as she was aground and unable to move. After giving the most careful consideration to the testimony the court has been compelled to reach the conclusion that the collision was due solely to the negligence of the MORAN. The libel is dis- missed." On August 17, 1897, a final decree dismissing the libel was entered, from which the libellant appealed to this court. Further facts appear in the opinion of the court below and in the opinion of this court. Mr. Norris Morey for lebellant, appellant. Mr. Harvey D. Goulder for claimant, appellee. PER CURIAM. The circumstances of the collision are sufficiently stated in the opinion of Judge Coxe, (1) and we agree substantially in his conclusions of fact. We also agree in the legal conclusions that the JOHN V. MORAN was in fault and the MAURICE B. GROVER should be exonerated from liability, though not altogether with the reasons assigned in the opinion. The facts briefly stated are these: The collision took place in the St. Mary's River, opposite the island known as Sailors' Encamp- ment. The river around the island is shallow, has a rocky bottom, has a current of two miles an hour, and is navigable by vessels of size only in the narrow channel constructed by blasting out the rock. The MORAN, bound up the river, ran aground at the westerly side of the channel below what is known as the crib, and lay there with her stem projecting at right angles with the channel until about dusk, a period of about two hours, when the collision occur- red. The channel at that point for half a mile up the river and running in a northerly direction is straight, and then deflects sharply to the west around Sailors' Encampment, and below the crib runs southerly a short distance and turns again somewhat abruptly to the westward. The MORAN'S stem projected so far into the channel as to impede very seriously the maneuvers of vessels descending the river in making the turn below the crib. At all times navigation at that point was difficult, and it had become customary in 1895 and 1896 for ascending vessels to lie still below the turn and wait for the descending vessel to pass. The place where the MORAN was grounded was near the location sometimes selected by vessels thus awaiting descending vessels. The GROVER as she rounded the norther- ly side of Sailors' Encampment gave the customary whistle at the bend to indicate her approach. Those in charge of her navigation saw the MORAN, saw her masthead and red lights, saw that she was stationary, although her propeller was moving, and assumed that she was an awaiting vessel. They did not observe her vigilantly, and devoted themselves to the navigation of their own vessel until they passed a dredge lying in the channel about half way between the bend and the MORAN, and then they gave and maintained vigilant attention to the MORAN, and made preparations to pass her. As she approached nearer her master concluded that he could not pass across the bow of the MORAN and make the channel turn with safety to his own vessel. He therefore increased the speed of the GROVER, which up to that time, had been proceeding very slowly, and, when she was about three hundred feet above the MORAN, ordered her helm hard-aport and soon after her engines backed, intending to pass the MORAN on the port side, and expecting to see the MORAN go ahead under a helm to throw her stern to starboard and out of the way of the GROVER. Whether this maneuver would have been successful if the MORAN had been free and had made such a maneuver is doubtful. She could not assist the GROVER, and the latter, though only under sufficient motion to give steerage way, struck the MORAN nearly amidships on the port side. We are convinced that the master of the GROVER acted upon his best judgment at the time he starboarded the course of his vessel, and the proofs do not satisfy us that she could have passed in front of the MORAN'S bow and made the turn in the channel without risk of running upon the rocks. If those in charge of the GROVER had known, or should have known, the MORAN to be aground, the GROVER would have been in fault for not reversing when or before she got opposite the dredge; and the most serious question in the case is whether they were not negligent in assuming that she was an awaiting vessel. She was lying nearer the crib than awaiting vessels usually did; but vessels had passed near that place before, and the rock upon which she grounded was not generally known to navigators. If the water had not been lower than usual she probably would not have grounded. The master of the GROVER was an experienced navigator, familiar with the locality, and there is not the slightest doubt that he and others on the GROVER, after carefully observing the MORAN, continued to think she was an awaiting vessel. They undoubtedly assumed that she was lying further below the crib than she really was, but mis- calculations of that sort are not inconsistent with the exercise of reasonable vigilance. Seeing her sailing-lights burning, they had a right to suppose that she was not aground until the contrary became manifest. Upon a careful reading of the proofs we conclude that those in charge of the GROVER were justified in their assumption that the MORAN was an awaiting vessel, and in relying upon that sup- position until it was too late to take any more effective measures for avoiding collision than those which were taken. The MORAN was in fault because she was under her sailing-lights while aground. The Lorne, 2 Stuart, L.C.V.A. 177. Rule 3 prescribes the lights to be carried by steam vessels "when under way," and by Rule 1 a vessel is not under way for the purpose of carrying lights when she is grounded. Act of February 8, 1895, regulating "navi- gation on the Great Lakes and their connecting and tributary waters," 28 Stat. 645, c. 64. By carrying her sailing-lights the MORAN advertised herself as being under way, and actually misled the GROVER. It is urged that the GROVER was in fault for omitting to give the signal prescribed by Rule 24, by which the descending vessel is given the right of way and required when two steamers are meeting to indicate which side she elects to take. This fault is not charged in the libel. It is doubtful whether the rule applies to a case like the present, where one of the vessels is lying still. The failure to give it in this case did not influence, and could not have influenced, the movements of the MORAN. Whether the MORAN could have given any signal to the GROVER to indicate her inability to control her movements we are unable to say. The court below was of opinion that when she heard the signal given by the GROVER while rounding the bend she ought to have sounded an alarm signal. The case is one not covered by any formu- lated rule; and while it may be that such a signal might have led those in charge of the GROVER to apprehend that the MORAN was not under control and to take earlier precautions for avoiding her, it is so doubtful whether they would have understood the signal to be meant for them that we are indisposed to treat the omission as a fault contributing to the collision. It is probable that the GROVER could have passed across the bow of the MORAN and made the turn in the channel safely. Other vessels had done so while the MORAN was aground, but at that time she did not obstruct the channel to the same extent; and it does not follow that the GROVER could have done so because others did. The GROVER was so heavily laden that she might have failed although the others succeeded. We cannot resist the conclusion that the master of the GROVER acted upon a reasonable judgment in view of the circumstances as they were presented to him at the time, and if he made a wrong judgment it was an error, and not a legal fault. The decree is Affirmed, with costs. ===========================================================================