Opinion · Supreme Court of the United States

Charles Warner Co. v. Independent Pier Co.

Charles Warner Co. v. Indep. Pier Co., 278 U.S. 85 (1928)

Type: Opinion
Court: Supreme Court of the United States
Jurisdiction: Federal
Date: 1928-11-19
Topic: general

*87 Mr. Justice McReynolds delivered the opinion of the Court. These two numbers on our docket present one cause in admiralty. It arose out of a collision between the single screw steamer Gulftrade — 429 feet long, '59 foot beam — and two loaded scows which, with two others, were being towed by the tug Taurus upon hawsers astern. The flotilla was about 400 feet long.

Citator

UpLaw has not yet analyzed Charles Warner Co. v. Independent Pier Co.. The absence of a flag is not a finding that it is good law.

Cited by: 27 opinions

Headnotes

Admiralty & Maritime Law — Collisions — Overtaking Vessel's Duty to Keep Out of the Way An overtaking steam vessel is required to keep out of the way of the overtaken vessel, and where the overtaking vessel knew the relevant facts and had ample room to pass safely if prudently navigated, its failure to anticipate the effect of the flood tide on the tow as the flotilla rounded into still water, and its entry into the zone of evident danger, renders it solely at fault for the resulting collision. 278 U.S. at 89
Admiralty & Maritime Law — Collisions — Effect of Assenting to a Passing Signal A vessel's assent to an overtaking vessel's passing signal constitutes no more than an acknowledgment of the overtaking vessel's purpose and an agreement not to thwart the maneuver; the vessel giving assent does not thereby assume responsibility for the maneuver, and its obligations extend only to holding her course and speed so far as practicable, doing nothing to obstruct the passage, and knowing of no circumstances not open to the observation of the overtaking vessel that would prevent a safe passing. 278 U.S. at 89
Admiralty & Maritime Law — Collisions — Duty to Anticipate the Effect of Tide Under the statutory steering and sailing rules, an overtaking steam vessel must anticipate the effect of the tide upon the vessels ahead as they round into still water and must keep itself out of the zone of evident danger; the overtaking vessel, having command of its own movements, bears the peril of determining whether a safe passage remains and must bear the consequences of misjudgment in that respect. 278 U.S. at 89-90
Civil Procedure — Scope of Review on Certiorari Objections to a decree raised by respondents who did not themselves apply for certiorari are not to be considered; the reviewing court confines its consideration to errors assigned by the petitioner. 278 U.S. at 91

WARNER CO.v. PIER CO.,278 U.S. 85(1928)

49 S.Ct. 45

CHARLES WARNER COMPANYv. INDEPENDENT PIER COMPANY.

SAMEv. S.S. "GULFTRADE."

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

Nos. 22 and 23.

Argued October 10, 1928.

Decided November 19, 1928.

1. A steamship desiring to pass a flotilla of scows towed by a tug which she had followed on the flood tide up the Delaware River and thence into the still water of the Schuylkill, repeated a passing signal after making the turn, and upon receiving an assent from the tug, proceeded up the mid-channel of the Schuylkill and collided with the scows, which had been swung across it laterally from the tug by the momentum imparted by the tide in the Delaware.Held, that the tug by assenting to the passing did not assume responsibility for the maneuver, and that the fault lay entirely with the steamship, as she should have anticipated the effect of the tide and kept out of the way. P. 89. 2. Objections to a decree made by respondents who did not themselves apply for certiorari, are not to be considered. P. 91.20 F.2d 111, reversed; District Court affirmed.

CERTIORARI,275 U.S. 521, to a decree of the Circuit Court of

Appeals which modified the decree of the District Court in a

collision case. The petitioner, Charles Warner Company, owner or

charterer of the tugTaurusand several scows, libeled,in

rem, the steamshipGulftrade, one of the two respondents

herein (Gulf Refining Company, claimant) and two tugs, the

Tritonand theChurchman. It also sought damages from the two

tug-ownersin personam. The District Court gave judgment

against theGulftradeand the Independent Pier Company, the

other respondent herein, owner of theTriton, and dismissed the

libel as to theChurchmanand its owner. The Circuit Court of

Appeals decreed that the damages

Page 86

should be divided between the petitioner and the respondents. The

latter did not apply for certiorari.

Mr. Everett H. Brown, Jr., for petitioner.

It was the duty of theGulftrade, the overtaking vessel, to keep out of the way of theTaurusand its tow, the overtaken vessel, and the assent by theTaurusto the passing signal of theGulftradeconstituted no more than an acknowledgment of the purpose of theGulftrade, an assent to the passage at her risk, and an agreement on the part of theTaurusnot to endanger the passage by permitting an interfering change in her position or in the position of her tow. Inland Rules, Art. 18, Rule VIII, Rule IX; Art. 23, Art. 24; Pilot Rule VI; Spencer, Marine Collisions, § 69;The Rhode Island, Olcott 505; Fed. Cas. 11,745;Whitridgev.Dill, 23 How. 448;City of Baltimore, 282 F. 490;Southern Pacific Co. v.Haglund,277 U.S. 304;AtlasTransportation Co. v.Lee Line Steamers, 235 F. 492.

TheTauruswas not guilty of fault in assenting to the passing signal of theGulftrade.Mr. Howard M. Longfor respondent in No. 22.

The collision was due solely to the failure of theTaurusto keep her tow in line. Art. 21, Pilot Rules;The Garden City, 19 F. 524;The Dentz, 29 F. 525;The Menominee, 197 F. 736;The Aurora, 258 F. 439;The Wrestler, 232 F. 448;The City of Baltimore, 282 F. 490.

The Circuit Court of Appeals erred in not completely reversing the decree of the District Court and in not holding theTaurussolely at fault for the collision.Mr. Chauncey I. Clark, with whomMr. Frederic Congerwas on the brief, for respondent in No. 23.

The collision was due solely to the failure of theTaurusto keep her tow in line.The Wrestler, 232 F. 448;ThePage 87Aurora, 258 F. 439;The Madison, 250 F. 850;TheWyckoff, 138 F. 418;The R.J. Moran, 299 F. 500;TheGenessee, 138 F. 549;The Zouave, 122 F. 890;TheOverbrook, 149 F. 785;The Pencoyd, 157 F. 134;ThamesTowboat Co. v.Penna. R.R. Co., 157 F. 305;The George W.Childs, 67 F. 269.Southern Pacific Co. v.Haglund,277 U.S. 304was not an overtaking situation; it was one of special circumstances.AtlasTransportation Co. v.Lee Line Steamers, 235 F. 492, is analogous to this case, only in that both presented an overtaking situation.

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

These two numbers on our docket present one cause in admiralty. It arose out of a collision between the single screw steamer Gulftrade — 429 feet long, 59 foot beam — and two loaded scows which, with two others, were being towed by the tug Taurus upon hawsers astern. The flotilla was about 400 feet long. Both the tug and scows were owned or chartered by petitioner, Charles Warner Company. The Gulftrade was accompanied by the tugs Triton and Churchman, made fast to her port bow and port quarter. They were owned respectively by Independent Pier Company and Alfred E. Churchman. The Triton's master was upon the steamer and commanded the three associated vessels.

The accident occurred in the Schuylkill River near its confluence with the Delaware at 3:00 P.M., October 1st, 1923. The weather was fair, tide flood, wind light.

Drawing her tow the Taurus passed slowly up the Delaware with the tide and rounded into the still water of the two hundred foot channel of the Schuylkill. The Gulftrade followed under her own power carrying with her the attending tugs, their engines motionless untilPage 88the last moment before the collision. Shortly after the flotillas entered the Schuylkill the Gulftrade for the third time, by a single blast, indicated her desire to pass to starboard — eastward. The Taurus (as she had done twice before while in the Delaware) gave an assenting blast. Attempting to pass in mid-channel, the steamer struck two of the scows and caused material loss.

The District Court found that "the set of the tide swung the tail of the tow to the eastward and more or less athwart the channel until it had straightened out. . . . This, however, was a condition which the steamship was bound to anticipate and doubtless did. What happened was that the navigator of the ship expecting the tow would go to the westward and seeing it was so headed assumed it would be out of his way by the time he reached the passing point and that a passage up midchannel would be clear. In this he miscalculated and hence the collision." It declared the steamer guilty of negligence; the Taurus without fault; and awarded full damages in favor of petitioner Charles Warner Company primarily against the Independent Pier Company, owner of the Triton, and secondarily against the Gulftrade.

The Circuit Court of Appeals held — "Under the circumstances the Taurus was in fault in giving consent to the Gulftrade to come ahead, relying too much on her ability to get out of the channel. Evidently the Taurus miscalculated the situation. So, also, it seems the Gulftrade was at fault. She was the following vessel. All she had to do was to hold back and not run into the scows. She certainly saw danger ahead when she gave the second signal and she certainly saw it more imminent when she gave the third signal. It was quite clear that she did go ahead and took an equal chance with the Taurus on the ability of the latter to give her free channelway to pass. The result was a needless collision."Page 89

We cannot conclude that the Taurus was in fault. She was prudently navigated in plain view of the Gulftrade who knew the relevant facts; and by assenting that the latter might pass she certainly did not assume responsibility for the maneuver. At most the Taurus obligated herself to hold her course and speed so far as practicable, to do nothing to thwart the overtaking vessel, and that she knew of no circumstances not open to the observation of the Gulftrade which would prevent the latter from going safely by, if prudently navigated. Of course no ship must ever lead another into a trap. There was ample room for the Gulftrade to pass. But if not, she should have slowed down and kept at a safe distance. Her fault was the direct and sole cause of the collision.

By the Act to adopt regulations for preventing collisions, etc., approved June 7, 1897, (c. 4,30 Stat. 96,et seq.) it is provided —

"Art. 18, Rule VIII. When steam-vessels are running in the same direction, and the vessel which is astern shall desire to pass on the right or starboard hand of the vessel ahead, she shall give one short blast of the steam-whistle, as a signal of such desire, and if the vessel ahead answers with one blast, she shall put her helm to port; or if she shall desire to pass on the left or port side of the vessel ahead, she shall give two short blasts of the steam-whistle as a signal of such desire, and if the vessel ahead answers with two blasts, shall put her helm to starboard; or if the vessel ahead does not think it safe for the vessel astern to attempt to pass at that point, she shall immediately signify the same by giving several short and rapid blasts of the steam-whistle, not less than four, and under no circumstances shall the vessel astern attempt to pass the vessel ahead until such time as they have reached a point where it can be safely done, when said vessel ahead shall signify her willingness by blowing the proper signals. The vesselPage 90ahead shall in no case attempt to cross the bow or crowd upon the course of the passing vessel.

"Art. 23. Every steam-vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse.

"Art. 24. Notwithstanding anything contained in these rules every vessel, overtaking any other, shall keep out of the way of the overtaken vessel."

Under these regulations the duty of theGulftradewas clear. She should have anticipated the effect of the flood tide in the Delaware upon the flotillas as they rounded into the still water of the Schuylkill and kept herself out of the zone of evident danger.

InSouthern Pacific Co. v.Haglund (The Thoroughfare),277 U.S. 304,310, we said —

"TheReliefwas not at fault in accepting the passing signal of theThoroughfare. This was merely an assent to the proposed passage in the rear of theEnterprise, expressing an understanding of what theThoroughfareproposed to do and an agreement not to endanger or thwart it by permitting an interfering change in the position of theEnterprise. SeeAtlas Transp. Co. v.Lee Line Steamers(C.C.A.), 235 F. 492, 495. And theRelief, being in a position to fully carry out its agreement, was under no obligation to decline the passing signal because of the approach of theUnionon the other side and to sound instead a warning signal. There was nothing in the situation to indicate that the approach of theUnionwould prevent theThoroughfarefrom passing safely, if, as theReliefhad the right to assume, it were navigated with due care."

InAtlas Transp. Co. v.Lee Line Steamers, 235 F. 492, 495, the Circuit Court of Appeals (8th C.C.A.) had held —

"The reply of the Josh Cook to the passing signal of the Rees Lee was no more than an assent to it, at the risk ofPage 91the vessel proposing it. It expressed an understanding of what the Rees Lee proposed to do, and an agreement not to thwart it; but the success of the maneuver was at the risk of the Rees Lee."Whitridgev.Dill, 23 How. 448, 453 —

"The vessel astern, as a general rule, is bound to give way, or to adopt the necessary precautions to avoid a collision. That rule rests upon the principle that the vessel ahead, on that state of facts, has the sea-way before her, and is entitled to hold her position; and consequently the vessel coming up must keep out of the way."The Steamer Rhode Island, Fed. Cas. 11,745 — 20 Fed. Cas. 646, 650 —

"The approaching vessel, when she has command of her movements, takes upon herself the peril of determining whether a safe passage remains for her beside the one preceding her, and must bear the consequences of misjudgment in that respect."

See alsoCity of Baltimore, 282 F. 490, 492;ThePleiades,9 F.2d 804,806.

Objections to the decree below were offered by counsel for respondents in their briefs and arguments here. But no application for certiorari was made in their behalf and we confine our consideration to errors assigned by the petitioner.Steelev.Drummond,275 U.S. 199,203;Federal Trade Comm'nv.Pacific Paper Ass'n,273 U.S. 52,66;Webster Co. v.Splitdorf Co.,264 U.S. 463,464;Alice State Bankv.Houston Pasture Co.,247 U.S. 240,242;Hubbardv.Tod,171 U.S. 474,494;The Maria Martin, 12 Wall. 31, 40.

The decree of the Circuit Court of Appeals is reversed and that of the District Court is affirmed. The cause will be remanded to the latter court for further proceedings in conformity with this opinion.Reversed.Page 92