Chase v. Belden — 5 N.Y. St. Rep. 545

Majority

p. 545

Emory A. Chase et al, Executors, etc. App’lts, v. William Belden, Resp’t.^[1]

(Court of Appeals,

Filed January 18, 1887.)

Headnote

1. Ships — COLLISION — Pleasuee taohts are coasting- vessels, — U. S. Rev. Stat., § 4233, rule 7, governs as to lights.

Where an action was brought against the owner of a steam pleasure yacht for the value of a steamboat sunk in a collision with the said yacht while both vessels were navigating the Hudson river. Held, that the yacht was by proper nomenclature a “ coasting vessel,” and was therefore within the express terms of rule 7, as laid down in U. S. Rev. Stat., § 4233, bound to carry the central range of lights.

2. Same — Ships papers help to determine class.

In order to decide upon the classification of a vessel in regard to the lights to be carried by her, reference must be made to the statute and the ship’s enrollment and license.

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3. Same — When- navigating inland watees, a coasting vessel.

Where the enrollment was in conformity to title 4 of the U. S. Kev. Stat., and her license was a coasting license, with the added privilege of going to sea to foreign ports. Held, that while in the Hudson river she was navigating under her license in the character of a coasting vessel.

This is an appeal from a judgment of the general term of the third department, affirming a judgment of nonsuit on the trial of the issues before Justice Osborn and a jury at the Ulster circuit. The action was originally brought by William Donahue, the testator of the present plaintiffs, to recover the value of the steamboat Charlotte Vanderbilt, from William Belden, the respondent, owner of the steam yacht Yosemite, for the running down of the Vanderbilt by the Yosemite, near Esopus Meadow light-house on the Hudson river, at between nine and ten o’clock in the evening of July 14, 1882. The value of the Vanderbilt was admitted to be $16,000, and that she was a total loss. The Vanderbilt was a freight and passenger steamboat, running between Albany and New York on the Hudson river, and at the time of the collision was on her way to the city of New York. The Yosemite was an iron steam pleasure yacht, of four hundred and eighty-one tons burden, with two masts, and having sails which were furled at the time of the collision. When the collision happened she was under steam, on a trip from New York to Catskill, and proceeding at the rate of about sixteen miles an hour. She carried the usual red and green lights, and at her foremast a white light, corresponding in character and position with the lights prescribed for ocean-going steamers and steamers carrying sail, by section 4233, rule 3 of the Revised Statutes of the United States. She was enrolled in conformity with title 50, entitled “ regulation of vessels in domestic commerce,” of the Revised Statutes of the United States, and was licensed in pursuance of chapter 2, title 48 of .the same statutes, “ exclusively as a pleasure vessel, and designed as a model of naval architecture,” with leave “ to proceed from port to port of the United States, and by sea to foreign ports, without entering or clearing at the custom-house, but not to be allowed to transport merchandise, or any passengers for pay.”

There is a great mass of evidence in respect to the circumstances of the collision ; on the part of the plaintiff, for the purpose of showing that the collision was caused by the negligence of the Yosemite, and especially from her failure to carry the proper lights, and on the part of the defendant to show that it was caused by the mismanagement and neglect of the Vanderbilt.

The court, at the conclusion of the case, nonsuited the plaintiffs on the ground that no negligence had been shown on the part of the defendant, and especially that the principal ground

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of negligence on tbe part of tbe defendant, relied upon by tbe plaintiffs, viz.: That tbe Yosemite did not carry the proper lights, was not true, tbe court bolding that she did carry at the time the lights required.

As the case turns upon the question of lights, it is only necessary in addition to the foregoing facts to state the rules as to lights upon steam vessels prescribed by section 4233 of the Revised Statutes of the United States, so far as material here :

“Rule 1. Every steam vessel which is under sail, and not under steam, shall he considered a sail vessel, and every steam vessel which is under steam, whether under sail or not, shall be considered a steam vessel.

“ Rule 2. The lights mentioned in the following rules and no others shall be carried in all weathers between sunset and sunrise.

“ Rule 3. All ocean-going steamers and steamers carrying sail shall, when under way, carry _

“ (A) At the foremast head a bright white light of such a character as to be visible on a dark night, with a clear atmostphere, at a distance of at least five miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of twenty points of the compass, and so fixed as to throw the light ten points on each side of the vessel, namely: from right ahead to two points abaft the beam on either side.

“ (B) On the starboard side, a green light of such a character as to be visible •on a dark night, with a clear atmosphere, at a distance of at least two miles, and so constructed as to show a uniform and unbroken light over an arc of the horsion of ten points of the compass, and so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side.

_ “ (C) On the port side, a red light of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles, and so constructed as to show a uniform and unbroken light over an arc of the horizon of ten points of the compass, and so fixed as to throw the light from right ahead to two points abaft the beam on the port side.

“ The green and red lights- shall be fitted with inboard screens projecting at least three feet forward from the lights, so as to prevent them from being seen across the bow.

“ Rule 4. Steam vessels, when towing other vessels, shall carry two bright white masthead lights vertically, in addition to their side lights, so as to distinguish them from other steam vessels. Each of these masthead lights shall be of the same character and construction as the masthead lights prescribed by Rule 3.

“ Rule 5. All steam vessels other than ocean-going steamers and steamers carrying sail shall, when under way, carry on the starboard and port sides lights of the same character and construction and in the same position as are prescribed for side-lights by Rule 3, except in the case provided in Rule 6.

“Rule 6. River-steamers navigating waters flowing into the Gulf of Mexico, and their tributaries, shall carry the following lights, namely: One red light on the outboard side of the port smoke-pipe, and one green light on the outboard side of the starboard smoke-pipe. Such lights shall show both forward and 'abeam on their respective sides.

“ Rule 7. All coasting steam-vessels, and steam-vessels other than ferryboats and vessels otherwise expressly provided for, navigating the bays, lakes, rivers, or other inland waters of the United States, except those mentioned in Rule 6, shall carry the red and green lights, as prescribed for ocean-going steamers; and in addition thereto, a central range of two white lights; the after-light being carried at an elevation of at least fifteen feet above the light at the head of the vessel. The head light shall be so constructed as to show a good light through twenty points of the compass, namely: from right ahead to two points abaft the beam on either side of the vessel; and the after-light so as to show all around the horizon. The lights for ferry boats shall be regulated by such rules as the board of supervising inspectors of steam-vessels shall prescribe.

■Cantine Hallock and Jennings Chase, for appl’ts; Luther II. Marsh and William, Gr. Wilson, for resp’t.

The plaintiffs were nonsuited on tire ground, that the Yosemite, at the time of the collision, had the proper lights, and that no negligence was imputable to her on any other ground. This ruling was affirmed by the general term.

The right of the defendant to maintain this judgment must,, we think, tarn upon the correctness of the ruling that the Yosemite carried the proper lights. The counsel for the defendant, while strenuously maintaining that the Yosemite had the proper lights, also insists that, if the court below erred in this respect, nevertheless the nonsuit should be affirmed on the ground that-the collision did not result from this omission of duty, but was solely attributable to the mismanagement of the Vanderbilt. The question whether there was any negligence on the part of the Vanderbilt, which would bar a recovery, was not considered, or decided on the trial. The nonsuit was put exclusively upon the absence of negligence on the part of the Yosemite, and was affirmed on that ground by the general term. If the ruling on the question of lights was erroneous, the case should, we think, be sent back for a new trial, on which the question as to the negligence of the Vanderbilt can be presented and considered.

The question whether the Yosemite, at the time of the collision, carried the proper lights, depends upon the construction of the rules for preventing collisions on water, prescribed in tit. 48, c. 5, Rev. St. U. S., as applied to the Yosemite while navigating the Hudson river. The rules prescribing the lights to be carried by steam-vessels divide such vessels into three classes: First, “ ocean-going steamers, and steamers carrying sail,” embraced in rule 3; second, “river steamers, navigating waters, flowing into the gulf of Mexico, and their tributaries,” embraced in rule 6; and, third, “ all coasting vessels, and vessels other than ferry-boats and vessels otherwise expressly provided for, navigating the bays, lakes, rivers or other inland waters of the United States, except those mentioned in rule 6,” embraced in rule 7. In addition, rule 4 prescribes the lights to be carried by steam-vessels when towing other vessels, which appears to be of general application. The Yosemite, at the time of the collision,had a green light on her starboard side, a red light on her port side, and at the foremast head a white light, being the light prescribed for “ ocean-going steamers, and steamers carrying sail.

It is insisted on the part of the defendant that the Yosemite was “ an ocean-going steamer, and a steamer carrying sail,” and was bound to carry the lights prescribed in rule 3, whether navigating the' ocean or inland waters. The counsel for the plaintiff, however, denies that the Yosemite was, at the time of the collision, “ an ocean-going steamer, and a steamer carrying sail,” within the meaning of rule 3, and insists that the words “ ocean-going steamer, and a steamer carrying sail,” are descrip

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tive only of steamers while traversing the ocean, and when on the high seas; and that every steamer, except those mentioned in rule 6, while navigating inland waters, is bound to carry a “ central range of two white lights,” as prescribed in rule 7, whatever may be its general character as an ocean or inland vessel. We deem it unnecessary to decide this general question. The Yosemite was, we think, in legal character and by proper nomenclature, a “ coasting vessel,” and was therefore, within the express terms of rule 7, bound to carry the central range of lights prescribed in that rule. Even if this may not be absolutely true of the Yosemite in all situations, it Avas nevertheless true of her when navigating inland waters. If the Yosemite was a coasting vessel, it becomes quite unimportant to determine the true construction of the limiting clauses in rule 7.

The rule, in express words, applies to “ all coasting steam-vessels,” and plainly no vessels of that character are, by the subsequent language, excepted from the obligation to carry the central range lights. The legal character of a vessel is to be determined by a reference to the statute and the ship’s papers. The Yosemite was a yacht used and employed exclusively as a pleasure vessel, and designed as a model of naval architecture, and is so described in her license. By section 1, o. 141, of the United States Statutes of 1848, the secretary of the treasury Avas authorized to cause yachts, “ used and employed exclusively as pleasure vessels, and designed as models of naval architecture,” if entitled to be enrolled as American vessels, to be licensed “ to proceed from port to' port of the United States, Avithout entering or clearing at the custom house.” This statute was amended by section 1, c. 170, of the United States Statutes of 1870, by inserting after the words “United States,” the Avords “ and by sea to foreign ports; ” and the original statute, as amended by the act of 1870, now stands as section 4214 of the Revised Statutes.

It will be observed that under the statute of 1848, yachts licensed thereunder were exclusively coasting vessels. By the amendment they might have a double character, viz., that of coasting vessels, and vessels entitled to go upon the seas to foreign ports. The Yosemite, at the time of the collision, was enrolled at the port of New York, and her certificate of enrollment recited that it was given in conformity to title 50 of the United States Revised Statutes, entitled “ Regulations of Vessels in Domestic Commerce.” She Avas also licensed, and her license recites that it was granted in pursuance of chapter 5, .title 48, entitled “ Regulations of Commerce and Navigation.” By reference to title 50 of the United States Revised Statutes, under which the Yosemite was enrolled, it Avill be found that it relates exclusively to coasting and fishing vessels. The title next preceding, viz., title 49, is entitled “ Regulations of Vessels

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in Foreign Commerce.” It thus appears that the Yosemite was enrolled under the statute relating to coasting vessels, and her license was a coasting license, with the added privilege of going by sea to foreign ports. It does not seem to admit of reasonable doubt, having reference to the statute and to the enrollment and license, that the Yosemite, while navigating the Hudson river, was navigating under her license in the character of a coasting-vessel. This brought her within the operation of rule 7, and. she was therefore in fault in not carrying the lights prescribed by that rule.

If the collision had happened upon the high seas, another question would be presented. In the case of The Glaucus, which came before Lowell, J., in the United States district, court of Massachusetts, referred to in a note in Parsons on Shipping and Admiralty, (vol. 1, p. 562,) which arose under the act of 1866, (14 U. S. St. at Large, c. 234, § 11,) of which section 4233 of the Revised- Statutes is, in substance, a re-enactment, it appeared that the Grlaueus, a steamer bound from New York to Boston, came into collision with a sailing vessel on Long Island sound. The steamer had, in addition to her two side lights, two white lights, one at her bow and one at her masthead. It was contended that she should have had only one white light. Lowell, J., speaking of the act of 1866, said: “Its language does not seem to be very happily chosen. It puts ocean steamers and steamers carrying sail in one class, with one sort of light, and coasting steamers in another, with a different sort, whereas most of the coasting steamers on the Atlantic coast are both ocean going and carrying sail, so that it may sometimes be difficult for the persons concerned to know to which order they belong.” The point, it is said, was not decided. See The Continental, 14 Wall, 345 . It is not necessary to decide the point in this case. It is decisive here that the Yosemite, at the time of the collision, was navigating inland waters under a coasting license, and that by the explicit language of Rule 7, she was-bound to carry the central range of lights.

The judgment should be reversed and a new trial granted.

All concur.