The Favorita/Opinion of the Court

It is not necessary for the proper disposition of this case to reconcile conflicting testimony, as is frequently required in causes of collision. It is true the witnesses differ in opinion on the question whether the Manhassett pursued the proper course when threatened with danger, and also in the matter of distances, but these differences do not affect the main points on which we rest our decision.

It is manifest, on account of the extent of the shipping constantly passing through the East River at this point of it, that the greatest vigilance is required in the navigation of the stream by vessels passing up or down it. More especially is this so by reason of the constant passage of ferry-boats across the river. The extent of this business can hardly be overstated. Millions of passengers are transported between Brooklyn and New York annually, and, of necessity, the boats must make their trips with regularity by night as well as by day, and in all kinds of weather. All persons who seek the waters of this river must observe the rules which tend to the safety of navigation. This observance involves no hardship, and does not assert any exclusive or prior right in behalf of ferry-boats. It is necessary for the protection of all the different interests centring in this great harbor, and these interests are all to be recognized and considered in determining what is or is not good navigation under the circumstances. Manifestly the rules of navigation must vary according to the exigencies of business and the wants of the public. The rule which would be applicable in a harbor where the business was light and the passage of vessels not liable to be impeded, would be inapplicable in a great thoroughfare like the East River. In the former it might be that vessels could with safety run across the mouths of ferry slips in going to or from their wharves, while in the latter such navigation would necessarily be hazardous. It is hazardous, because ferry-boats are constantly emerging from their slips, and their masters generally unable, on account of the shipping moored about the piers, to discover approaching vessels until they have got their boats out into the open river. Common prudence, therefore, requires that vessels in the situation of the Favorita should occupy as near as possible the middle of the river. This is necessary for the mutual safety of all concerned in its navigation, and is required for the protection of life as well as property. If the middle of the river be previously occupied, and the ship is obliged to go nearer to shore in order to avoid other vessels pursuing the same track, she must run at such a slow rate of speed as to be easily stopped, so as not to endanger boats pursuing their regular and accustomed occupation. Any other rule than this would tend to the confusion rather than the safety of navigation, and put in jeopardy the lives of hundreds of people. The grest and varied business interests conducted in this harbor require the rigid enforcement of this rule. Indeed, the necessity for it was so apparent that the legislature of New York, doubtless in order to render it more effective, embodied it in a statute. The Favorita, without excuse, violated this rule. It is plain from all the evidence that her object in going where she did was to seek and keep the eddy. This may have made her navigation easier, but she cannot escape in this way, for there was no difficulty in running the boat out in the river, and the excuse that she went close in shore to avoid other vessels is not sustained by the evidence. There were no more vessels than usual in the river at the time, and no reason given why a departure from the usual path was necessary under the circumstances. Besides, suppose there was, the Favorita is condemned by her rate of speed. If she was placed in the predicament which compelled her to take the shore track, obviously her speed should have been lowered, so that the boat could have been readily stopped, and on a moment's warning changed to the right or left, as the necessities of the case may have required. It may be that in the middle of the river she could have been safely run at eight or ten miles an hour (a point on which we express no opinion), but clearly, running along across the pier ends and ferry slips of the East River at such a rate of speed is at all times dangerous, and the result proves that it was particularly so at this time.

There is a good deal of testimony bearing on the point of the distance of the Favorita from the shore at the time of the collision, but it is unnecessary to consider it, for the estimate of witnesses in times of sudden peril on such a subject is mere conjecture, and necessarily inconclusive. That the ship was out of the path she should have occupied, and improperly close to the Brooklyn shore, is evident enough, because both vessels were in perilous proximity the moment the Manhassett emerged from her slip. Had she been at a suitable distance from the shore, or going with a materially lessened speed, the collision would not have happened, and the inquiry arises whether she must alone suffer for the loss that occurred. On a consideration of the whole evidence we are unable to see in what respect blame can be cast on the Manhassett.

It is clear that the officers of the Manhassett did not see the Favorita, on account of intervening vessels, until the former had emerged from her slip, and equally clear that they had no right to expect the Favorita to be in the wrong place in the river. The peril was imminent as soon as the Manhassett had cleared her slip, and both vessels were in full view of each other. Both at once applied the means and took the course deemed proper by their officers to prevent the catastrophe. It is said if the Manhassett had advanced instead of stopping she would have cleared the steamship. This may or may not be true, but if true, she is not in fault for this error of judgment. It was a question whether to advance or to stop and back, and the emergency was so great that there was no time to deliberate upon the choice of modes of escape. In such a moment of sudden danger, caused by the misconduct of the Favorita, the law will not hold the pilot of the Manhassett, acting in good faith, guilty of a fault, if it should turn out after the event that he chose the wrong means to avoid the collision, unless his seamanship was clearly unskilful. And this we do not find to be the case. On the contrary, if there were error at all, it was such a mistake of judgment as would likely be committed by any one in similar peril. If the Favorita had been where good navigation required her to be, or had she slackened her speed so as to be able to stop as soon as she discovered the Manhassett, the danger would not have existed, nor the accident happened. She is, therefore, in our opinion, chargeable with all the consequences that flow from this collision.

The appellants object to the allowance of demurrage by the commissioner on the ground that the ferry company suffered nothing by the loss of the use of the Manhassett while undergoing repairs, because her place was supplied by a spare boat kept for emergencies, and which would otherwise have been idle. This subject was fully discussed in the case of The Cayuga by the learned circuit judge of the second circuit, who sustained a similar allowance, and as that case was affirmed on argument in this court, and his views adopted, we must consider the question as no longer open to discussion.

DECREE AFFIRMED.