
    George Aldridge et al., App’lts, v. John P. Clausen, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    1. Navigation bulbs Nos. 32 and 17—Obossing and ovebtaking vessels.
    In the navigation of a narrow river or arm of the sea, in determining whether a vessel is overtaking or crossing within navigation rules Nos. 22 and 17, regard must be had for the general direction of the vessels, whether up or down the river, and not altogether to the courses on which they may be running at a particular moment. If the vessels are going up the river, the one down the river should be considered an overtaking vessel, regardless of their courses.
    2. Same—What constitutes a obossing vessel.
    A difference of three points between the courses of the vessels does not make it a case of crossing vessels. Dykman, J., dissenting.
    Appeal from a judgment dismissing the complaint rendered upon the trial of the case at the Dutchess county circuit, without a jury.
    The facts appear in the dissenting opinion of Dykman, J.
    
      H. H. Hustis and JR. D. Benedict, for appl’ts; Edwin G. Davis, for resp’t.
   Cullen, J.

This appeal is from a judgment dismissing the complaint on a trial before a justice of this court without a jury. It is doubtful whether the exceptions of the plaintiff are sufficient to raise any question on this appeal, because the trial justice was not requested to find any facts on which a recovery by the plaintiff could be predicated; and, hence, of course, no exceptions were taken to any refusals by the court to find such facts. However, we are disposed to pass over this question and examine the case on the merits to see if there was an error committed by the trial court.

This action was brought to recover damages sustained by the plaintiffs’ sloop by a collision with the defendant’s lighter in the East river. Both vessels were beating up the river, with the wind dead ahead; and, at the time of the collision, both were on the starboard tack, the lighter being to the windward. The sloop entered the East river after the lighter, and not only sailed faster than the lighter, but also closer to the wind. The main point involved in this controversy is whether, at the time of the collision, the sloop is to be considered, with reference to the lighter as an overtaking vessel or a crossing vessel. If an overtaking vessel, then, under the twenty-second navigation rule, it was the duty of the sloop to have kept out of the way of the lighter. If the vessels are to be considered as crossing, then, both having the wind on the same side, the windward vessel, that is, the lighter, was bound, under the seventeenth rule, to keep out of the way of the sloop.

The contention of the plaintiff as to the fact is that there were three or four points difference between the courses of the two vessels, and as to the law is, that such a difference makes the sloop a crossing vessel instead of an overtaking vessel. As to the question of fact, here also the plaintiff’s case is defective. There seems to be nothing in the evidence fixing, with even approximate accuracy, the difference in the courses of the vessels. The seventh finding of fact is, that the lighter could not lie within several points as near the wind as the sloop, but there is no finding determining the absolute courses of the vessels. But, if it be assumed that there was a difference of three points between the courses of the vessels, still we are of opinion that the sloop was an overtaking vessel and not a crossing vessel within the navigation rules.

Three cases are cited by the plaintiff to sustain the claim that such a divergence of course constitutes a crossing vessel. The first is the Case of “The Clement,” 1 Sprague, 257. In that case there was a difference of only two points between the courses of the vessels, and the vessel to windward was held in fault in not keeping out of the way of the leeward vessel. But this decision, which arose before the navigation rules, was based solely on the ground that the windward vessel had the wind free, and not with reference to the fact that the vessels were to be considered as crossing.

The second , is the Case of “ The Cayuga” (14 Wallace, 270). In this case, the difference between the courses of the vessels was over three points, and the case was held to be one of crossing vessels. The court held that the rule as to overtaking vessels did not apply, because, at the time precautions first became necessary, the distance between the vessels on a line at right angles to their courses was very great and the steamers nearly abreast.

The third is the Case of the ‘Peekforton Castle ” (2 Law Reports P. D. 222). Here, also, the question arose whether it was to be considered a case of a crossing or overtaking vessel. The admiralty court found the divergence or difference of the courses to be four points, but based its decision on the ground that the windward vessel had the wind free, and should therefore have avoided the collision. On appeal (3 Law Reports P. D., 11), the court held that the difference of course was at least five points, and that the “ Peckf orton Castle ” had never been seen from the colliding ship in any direction abaft her beam, and that, hence, it was strictly a case of crossing vessels in which it was the duty of the windward vessel to avoid the other.

It will thus be seen that the cases cited (the last two of which only are in point,) do not attempt to define what is a crossing vessel with regard solely to the difference of their courses. Nor can I find any case in which the difference of the courses is made the sole controlling element. In the Case of ‘ The Franconia ” (2 Law Reports P. D., 163) the question, also, arose whether the case was to be considered one of crossing ships or of an overtaking ship. The court there says, “ The rule as to crossing ships uses that as a term of navigation, not as a mathematical term. So when the rule speaks of one ship _ overtaking another it is a c sea ’ and not a mathematical term.” It then proceeds that “ a vessel will be considered an overtaking vessel, if the hinder vessel is so far astern that it cannot see the side light of the forward ship, even though their courses be not parallel.” But, in all those cases, the vessels were in comparatively broad waters and not going in the same general direction. In the case of ‘< The Cayuga, ” the steamers were crossing the river from opposite sides. In the case of “ The Peckf orton Castle,” the vessels were at sea at the end of the English channel, one bound up the channel and the other down. The rules held applicable in those cases can not fairly apply to the navigation of a narrow river or arm of the sea. In such a case, it seems to us, that in determining whether a vessel is.overtaking or crossing, regard must be had for the general direction of the vessels, whether up or down the river, and not altogether to the courses on which they may be running at a particular moment. The narrow and tortuous channels of rivers in this country oftentimes compel a vessel to change its course frequently and in the shortest distances. If such change of course is to determine the application of the rules of navigation, it would follow that the rules controlling the movements of vessels would be continuously changing as the vessel navigates the river, which would produce great confusion. This, we think, should not be the construction of the rule; but, if

the vessels are going up the river, the one down the river should be considered an overtaking vessel, regardless of their courses. The plaintiff himself seems to have regarded the lighter as ahead of him, for he says in his testimony, ‘1 when we came around the Battery, we saw the lighter Billow ahead * * * we stood close to the Brooklyn shore, and the lighter Billow was ahead of us a little way.” “ The Velocity ” (1 Law Reporter, 3 P. C. 44,) and “The Ranger” (Law Report 4 P. C., 519,) are both authorities to the effect that, in a winding and crowded river like the Thames, a particular direction taken for a few moments, to round a corner or avoid an obstacle, is not such an indication of the real course of a ship as to make her case, with reference to another ship, that of a crossing vessel.

We are, therefore, of the opinion that, as both vessels were beating up the river and on the same tack, the sloop is to be considered an overtaking vessel within the rules of navigation, regardless of the difference of their courses, and that, hence, it was her duty to have avoided the lighter; and that the collision was due to her (the sloop’s) fault.

Judgment should be affirmed, with costs.

Pratt, J., concurs.

Dykman, J.

(dissenting).—This is a common law action for the recovery of the damage resulting from an injury to the vessel of the plaintiffs.

They were the owners of the sloop Commodore Jones, and the defendant was the owner of the lighter Billow. On the 22nd day of October, 1884, about ten o’clock in the forenoon, these vessels were beating up the East river with a strong flood tide, and a strong wind dead ahead; the sloop was loaded with brick and carrying full sail; the lighter was sailing with jib and mainsail, with the peak clewed. She was slower than the sloop and could not lay so near the wind as that vessel within several points, and with her sails in that condition she would not readily luff nor quickly go-in-stays. Before the accident both vessels were sailing upon the starboard tack, the lighter having stood off from the Brooklyn side near Gold street, and the sloop having made her tack one block below. In the course of both vessels .there was a steam tug towing four schooners (two on each side), and bound up the river also. After the lighter had gone-about and was full, she starboarded her helm so as to pay-off and avoid the flotilla "by going to its stern. The sloop fore-reached both the lighter and the tug, and had. attained a point on the starboard quarter of the starboard schooner, and lapped up so far that she could not keep off and pass astern of the tug and schooners, and could not weather them on that tack. Thereupon, to avoid a collision with the schooner, the sloop put her helm hard-down and attempted to go-in-stays and come about on a short tack to the Brooklyn shore. At that time her captain called on the lighter, which was then just to the windward, to go-about. The jib of the lighter was lowered and her helm was put down, but she was not quick enough in the wind to enable the sloop to go-about and so she remained in-stays running along side the schooner until the bow of the lighter struck her slantly on her starboard side forward of her rigging and inflicted the damage complained of.

These substantial and prevalent facts stand uncontradicted and the trial judge rendered a judgment for the defendant on the theory that the sloop was the overtaken vessel, and therefore, bound to avoid the lighter, and contributed to the disaster because she failed so to do.

By the congressional rules of navigation still applicable to the East river, when sail vessels are crossing, so as to involve risk of collision, if they have the wind on the same side, the vessel to the windward shall keep out of the way of the leeward, (Rule 11).

That rule applies to these vessels when they were on the starboard tack and had the wind on the same side. The lighter was to the windward, and could not go as close to the wind as the sloop within several points, and after she was headed off from the Brooklyn shore and was full, she starboarded her helm and fell off several points more to port to run under the stern of the tug and schooners, while the sloop kept her course. So there were several points difference between the courses of the two vessels. They were pursuing converging and intersecting courses, and a collision was certain if they both continued and reached the point of intersection at the same time.

In this situation it was the duty of the lighter, as the windward vessel, in obedience to rule seventeen, to keep out of the way of the sloop, and by rule twenty-three of the code of navigation, where one of two vessels shall keep out of the way, the other shall keep her course subject to the qualification of rule twenty-four, which is this:

In construing and obeying these rules due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case rendering a departure from them necessary in order to avoid immediate danger.

Buie twenty-one of the same code is invoked by the defendant for his justification. It is this: “Every vessel overtaking any other vessel shall keep out of the way of the last mentioned vessel.”

But the sloop was not an overtaking vessel in any sense, except that of being the forereaching vessel. The lighter was to the windward pursuing a crossing course ’ and both had the wind from the same way, and she falls easily within the operation and requirements of rule seventeen. That she was a crossing vessel is also shown by the diagrams of the vessels printed in the case, and by the fact that she was obliged to port her helm to" avoid striking the sloop head on.

The sloop kept her course in obedience to rule twenty-three in the expectation that the lighter would obey rule seventeen and keep out of her way, and both these rules justify her movements.

There was no occasion for the application of rule twenty-four, for there existed no special circumstances rendering a departure from roles seventeen and twenty-three necessary. The two latter rules contain ample provision for all the emergencies which arose in this case. The sloop obeyed rule twenty-three and kept on her course, and if the lighter had been handled in obedience to the requirements of rule seventeen, the encounter would have been avoided. There was no complication of circumstances, and neither vessel was disabled or beyond control. If the lighter would not luff quickly, yet the fact that she answered her helm when it was ported and came up to the sloop obliquely, shows that she could have kept out of the way had she gone about in ■time; she had abundant room and time to do so.

The case of The Clement (1 Sprague 257), and of The Cayuga (14 Wall, 270), are authorities in favor of the plaintiff, and the case of The Peckforton Castle, (3 Asp. Mar. Cas. U. S., 511), seems to be similar to this. In that case there were four points between the courses of two sailing vessels, and they were held to be crossing, and the court said: “Although the vessel which had the wind free Was being overtaken by the faster ship, yet as the faster ship was close-hauled and as both had the wind on the same side, the rule which governs this case is that which is contained in the twelfth article.” That article was the same as our seventeenth rule.

We reach the conclusion, after a careful examination, that the lighter was in fault and the sloop was not, and that the plaintiffs are entitled to recover their damages.

The judgment should therefore be reversed and a new trial granted with costs to abide the event.  