The Martello v. The Willey

This was a libel and cross libel for a collision between the American barkentine Freda A. Willey and the Brtish steamship Martello, which occurred on the 8th day of May, 1887, at 8 o'clock in the morning, about two miles to the northward and eastward of the Sandy Hook lightship, in a fog, and resulted in the sinking of the barkentine. The district court found both vessels to have been in fault for excessive speed, and entered a decree dividing the damages and costs. 34 Fed. 71. On appeal to the circuit court this decree was reversed, and the Martello adjudged to have been wholly in fault, and a decree entered for the original libelants in the sum of $23,943.43, from which decree the owners of the Martello appealed. 39 Fed. 505.

Pursuant to the statute, the circuit court, on July 31, 1889, made and filed the following findings of fact and conclusions of law, viz.:

'(1) The Martello is a British steamship of 2,439 tons net register, 370 feet in length, 43 feet beam, and 28 feet in depth, owned by the respondents and appellants, Charles Henry Wilson and Arthur Wilson, and is one of the Wilson Line of steamers, plying between New York and Hull and other foreign ports.

'(2) The Martello left her dock in Jersey City on Saturday afternoon, May 7, 1887, laden with a miscellaneous cargo of merchandise, bound for Hull, England. The weather was so foggy that she could not go down the channel, but anchored for the night in Gravesend bay.

'(3) The Martello got under way from Gravesend bay about 6 a. m. Sunday, May 8, 1887, and started for sea in comand of Captain Francis E. Jenkins, the senior captain of the New York service of the line, and in charge of Pilot Joseph Henderson. The weather was thick, but sufficiently clear to enable the buoys marking the channel to be seen. She proceeded down the swash channel, and thence through Gedney's channel to sea.

'(4) When about half a mile to the westward of the perch and ball buoy, i. e. about north from the black buoy No. 1, her engine was stopped for the purpose of slowing the vessel until the pilot could be discharged. That being done, the engines were, at 7:10 a. m. moved slowly ahead.

'(5) About 40 minutes after discharging the pilot, the horn one blast of a sailing vessel-was heard on the starboard bow. At that time the captain and third officer were on the bridge, a competent lookout was in the cro'nest, about 100 feet abaft the stern, the first officer was on the lookout on the forecastle, and the quartermaster was at the wheel.

'(6) At that time the steamer was heading E. S. E. The wind was about E. By N., blowing a five to six knot breeze. The fog had grown denser, and vessels could not be seen over a quarter of a mile away. The whistle of the steamer had been blown regularly at intervals of thirty seconds or less, and her speed was about 5 1/2 to 6 knots an hour. Three knots an hour would give her good steerage way.

'(7) About a minute or two after hearing the horn, the officers of the Martello saw the barkentine Freda A. Willey looming in sight through the fog.

'(8) On April 24, 1887, the barkentine Freda A. Willey left Pensacola, bound through Long Island sound for New Haven, with a cargo of yellow pine lumber, and on Sunday, May 8th, about 8 o'clock a. m., she was bound into the harbor of New York.

'(9) The Willey, with all her sails set, can make ten knots an hour. With the wind as found in the sixth finding, the Willey, if going at less than four knots an hour, would not have steerage way sufficient to given her master thorough control of her to tack, wear, or manage her as occasion might require.

'(10) About 4 a. m. of May 8th she was sailing with her mainsail, spanker, main staysail, upper and lower fore-topsails, fore-topgallant sail, and three jibs. At 5 a. m. the wind freshened, and she took in her royal. At 7 a. m., the wind freshening, her fore-sail was hauled up.

'(11) There was on deck of the Willey, before the collision, Cobb, able seaman; on the lookout, Mathlin, able seaman; at the wheel, Ludvinger, second mate; and Willey, captain, about her deck. The rest of the crew were below. She was heading north, closehauled on the starboard tack, sounding her horn at intervals of one or two minutes, and making about four knots an hour.

'(13) While thus proceeding, she thrice heard the steamer whistle of a steamer, answering promptly each time with a single blast of her horn. At this last signal the Martello appeared in sight, bearing about four points on the port bow, and a quarter of a mile away.

'(13) As soon as the Willey loomed in sight of those on the Martello, as indicated in the seventh finding, the first officer of the steamship called out, 'Hard a-port,' and the lookout reported a vessel on the starboard bow. The captain immediately ordered the helm hard a-port, and the engines reversed full speed.

'(14) The speed of the Martello under a hard a-port helm, and with engines reversed at full speed, became gradually reduced, and at the time of the collision was about two knots an hour.

'(15) The place of collision was about 1 3/4 miles, about N. by E., from Sandy Hook lightship.

'(16) As the vessels neared each other, the first officer of the Martello called out to the barkentine, 'Luff; luff all you can;' but his call was not heard by those on the Willey.

'(17) From the time of the hearing of the first whistle down to the time of the collision the steamer, except as stated in the sixteenth finding, gave no signal or indication showing whether her intention was to go ahead of the barkentine or astern, or even whether she had reversed her engines. In consequence the Willey held her course, as she was bound to do, but the steamer ran into her with great violence, the steamer's stem running into the port bow of the barkentine, cutting its way into her keel, knocking her stem over to starboard, and driving her bow round to eastward.

'(18) Had the steamer been going at three knots an hour, had she stopped her engines as soon as she heard the Willey's horn, and reversed when she sighted the barkentine, she would have stopped out of the Willey's course.

'(19) The master of the barkentine was on deck. He had his vessel under control. If, when the steamer first sighted the barkentine, the master of the latter had been advised that the steamer was starboarding her wheel, he could have ported, and avoided the collision. If at that time the steamer had ported her wheel, the barkentine, keeping her course, would have crossed the steamer's bow in safety. If at that time the master of the barkentine had been advised that the steamer was reversing, he could have ported, and avoided the collision.

'Conclusions of Law.

'(1) The Freda A. Willey was free from fault.

'(2) The Martello was in fault for proceeding at an excessive rate of speed in a fog, and is solely responsible for the collision.

'(3) There should be a decree for the Freda A. Willey, and against the Martello, in each case, with costs of the district and circuit courts.'

Subsequently, on September 6th, and upon request of counsel for the Martello, the circuit court made the following additional findings of fact:

'(16) Captain Jenkins has held a master's certificate since 1856. Pilot Henderson has been a New York and Sandy Hook pilot for nearly forty-two years.'

'(30) Article 13 of the international rules and regulations for preventing collisions at sea is as follows: 'Every ship, whether sailing ship or steamship, shall, in a fog, mist, or falling snow, go at a moderate speed.'

'(31) The moderate speed required by this article is not a fixed rate of knots per hour, but something materially less than the vessel's full speed.

'(32) The Willey, at four o'clock on the morning of the collision, was some twenty miles to the southward of the Sandy Hook lightship.'

'(35) The Willey, at the time of the collision, was carrying not less than 2,191 square yards of canvas.' '(44) The ordinary course of outwardbound European steamers after leaving Gedney's channel is about E. S. E., and therefore across the course pursued by the barkentine.'

'(48) Article 19 of the international rules and regulations for preventing collisions at sea is as follows: 'In taking any course authorized or required by these regulations, a steamship under way may indicate that course to any other ship which she has in sight by the following signals on her steam whistle, viz.: One short blast to mean, 'I am directing my course to starboard;' two short blasts to mean, 'I am directing my course to port;' three short blasts to mean, 'I am going full speed astern.' The use of these signals is optional, but, if they are used, the course of the ship must be in accordance with the signal made."

'(51) It was the duty of the barkentine, under the circumstances, and with danger imminent, to use all the means reasonably within her power to avert the collision.'

'(56) The crew of the barkentine consists of a captain, mate, second mate, five men before the mast, and the steward,-nine in all.'

Upon the further request of counsel for the Martello the following additional finding was made and filed July 30, 1890:

'(104) The horn of the Willey on board of her, and sounded at the time of the collision, was not a horn sounded, or to be sounded, by mechanical means, but was a tin fog horn.'

But the court refused to find, as a conclusion of law therefrom, that 'the Willey was in fault for not having and using a horn sounded by mechanical means, as required by article 12 of the international rules for preventing collisions at sea.'

J. Hubley Ashton and David Thomson, for appellants.

W. W. Goodrich, for appellees.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.