914 11ess a:tJ.d::,diligence and'in rules of navigation, the means reasonably within her power to 'avoid collisions. St. J()hn v. Paine, 10 ,How. 557, 584; The Commerce, 8 Wm. Rob. .288; The C.C. Vanderbilt, Abb. ,Adm. '361,864; The,Scotia, 14 Wall. 110,181; The Qarroll,8 Wall. 802;, The American, 22 Wm. Rob. 845,848; The Oity ofAntwerp, L. R. 2 Pro C. 25, 80. In the oase Lord Westbury says,: "It cannot be too much insisted on that U is ,the duty of a steamer, where·thereis.;risk ofa collision,whatever may be the conduct of a sailing-vessEll, to do everything in her power that can be done consistently with hEll: own· safety in order to avoid collision.",,· The duty of the Vim to keep out of the way, so far as Jay within her power, still reniained, therefore, notwithstanding,the Spartel's fault in ohanging.her cOlmJe.Had the Vim acted promptly and properly in view oftbischange, she would have been blameless though accident followed. For not doing so, ,.she must bebeld responsible as: well as the,Spartel;and decrees should accordingly be entered ,for the libellant:; in the mst case, against both; ,and in the second case against the Vim for half the damages, with 'costs; and 8i referende to compute' the ,,
27,1882.) '
")
I.
AnMIRALTY-COLLI'UON-FAtLUlUll '1'0 SHOW TORcIi:-PlUl:stnQ'nON 01' NEGLIGENCE.
The law. requiring, ,$. to torcll' upon, the approach of a, steam-ship IDlplies. that the display ofsucll torch. will. aid in preventing a collisibn,'and' the failure to exhibit such tl>rch must; therefore, be r/lgarded as. a contributClry fault; in all instances. except only where it is shown that OWing to ·facts it could have , upon the Tesult. 2,'
SAME.
The fact thatthe'sldEilignts of' the sailing-vessel Were discovered from the steam-ship as early as' thetoDch could 'have been, will not' relieve the sailihgvessel from the charge failing to exhibit the an hour in a thick fog,:through wl'lich,allproach!ng at a distance cif a JiiUe; , '
,
3. 8.um-RA'l'B OF BPEEP QFSTBAM-BBIP. , It is negligence' fOI: a steam-ship to run
ata speedof froni
"
to tenknota riciuld nO\ be'seen
"1 n:.
TlI:EPENNi:lYliVANIA.. SAlm---GENERAL, RULE. '
915-
, " The rule, in such cases is that the stealll-ship's speed should be such that she 'can keep oft within the distance at which an approaching vessel can be seen. A stifalll-ship and a schooner collided In mid-ocean. The night was thick and foggy, and the steam-ship was lllaking from nine, to ten knots an hour. The schooner saw tl:1e steam-ship's head.light, but failed. a torch. The steam-ship saw the schooner's red light and reversed her 'engines, but could not prevent the collision. He!a, that both vessels were in, fault-the Bchooner in failing to exhibit a torch, andth/l steam-ship in running at an unjustifiable rate of speed-,and that damages should ,be equally diVided.
Ii. SAME.
Libel by the owners of the schooner S. B. Hume against the steamahipPennsylvania.' 'to recoverdam.ages:for a loss of the schooner by collision. The facts were as follows: The collision occurred in midocean, at about half past 11: o'clock on the night of July 23, 1878. The weather was thick 'and foggy. The vessels were bound on opposite courses, the' schooner sailing with the wind, free about seven knots and sounding her' fog horn, and the steam-ship running under steam at '8;$peed'ot from nine to 'ten knots and blowing, her, whistle. The master of .the schooner had gone below, leaving, the stltrboard watch on deck in charge of the second officer, with instruction.s.that' if any object: wa.smade, out· ahead he should "come to, on aport wheel." The mast-head light alone of the steam-ship was seen from the schodner"and, in accordance with the captain's instructions, her W"heel was at once put hard a-port,' causing her toluff into the wind and lose her headway. No torch was shown from the schooner's on board the llteam-ship first saw the schooner's red light about two points on the starboard bow. was:at onoeported, and engines'reversed at full speed; but notwithstandmgihisthe vessels came together, the steam-ship striking the schooner two blows,-thenrst'just abaft the main'rigging on the port side, and the second a little further forward on the same side, causing her to fill and sink. It was claimed on the part of the steam-ship that at the time of the collision-her headway had been entirely overcome, and that she had commenced to back, but that the hea.ty. sea drifted the schooner against her bOw,; striking her twice before she could back away. Alfred Driver,J. F.A ·.Wilcox, for libellants. Henry B. Edmutidi and Mortun.P. :Henry, for respondent. BUTLER; D. J. The: burden of proof is. on respondent. Hav" ing1run the schoonflr down, the ;presumptionsare,agQ.mst her. must. therefore show' that the fa.ult was not hers, ot fanswerdn dam"She'has undel'ta.ketdo show it,'1.>Y that the. schooner
916
J.l'EDEBAL REPORTER.
alone was blamable,-charging the latter with fault in neglecting proper lookout, alteration of course, failure to exhibit torch, and other less important particulars. That the schooner was blamable in failing to display a torch, as required by statute, is clear. There is nothing in the circumstances shown to excuse this failure. It was her duty to have the light ready, and waiting for such an emergency as arose. She knew that in the foggy atmosphere prevailing, with the direction of the wind and condition of the sea, approaching vessels could only be discovered at short distance, and should have. appreciated the importance of being prepared to display this light at any moment. It is fair to that ,she did not hear the steamer's whistle until her lights appeared, (as the witnesses state,) but at that moment her 'torch should have been displayed. The argument that her failure to display it did not contribute to the disinasmuch as the aide lights of the, schooner were discovered as early as the' torch could have been, and a. display of the latter would not, therefore have afforded the respondent additional information,or aid in keeping off, the neglect to display it was unimportaDJt;)"""-cannot be accepted. The law, as expressed by the statute, implies that the display of such a light ·will assistapproMhing steamships in ascertaining the position and course of sail.vessels, and thus aid them in keeping away. The failure to display this light must therefore in all instances be regarded as a contributory fault, at least, where collision occurs under such circumstances, except only where it is clearly shown that owing to extraordinary facts it could haye no influence, upon the result. Here no such'extraordinaryfactss,ppear. On the contrary, the condition of the atmosphere and sea) --rendered the display of a. torch in' this especially important. The schooner's approaehbeang undiscoverable in time for deliberate examination and judgment,it was essential to reasonable chance of escape that the steam-ship should have instant information of the former's exact position and course-such as the:torchllVas 'cd.culatedto , ;. . ., ' "Whether the schooner: was'guiltyi of fault,' as charged, in changing her course is, to say the least, open to serious doubt. Thei ,vessels were meeting, I think, very Dem-Iyhea.d on·. Whetherthe<steam.ship was a little off the schooner's"pottbow,.or alittle off the'starboard, eannot be 'Mown-with certainty. Neither:thestatementS of-witnesses respecting tbis,;the mannarof ,colliding, nor any.other cironmstallce shown, will enable us to ascertain the fact .with 'precision. , Exa.:ctly 'how the schooner washeadiJ;lgwhen her witnesseS saw the steam.sblp
'1'HEPENNSYLVANU.
917
off her port bow, and' when the respondent's witnesses saw her red light, is uncertain, as is also the effect upon the steam.ship's head of reversing her engine under a port helm,-all of which bear upon this question. It would not be safe, therefore, to conclude that the steamship was to starboard of the schooner when first seen, and that the latter in changing her course ran across the former's bows. It is possible such was the case. The burden of proof, however, as before observed, is on the respondent; and the fact is not proved. If it were, however, (and no excuse shown-such as impending peril,) the result would not be different. The schooner, as WI;) have already found, was blamable in another respect, and this finding is sufficient to repel the presumption referred to, at the outset. In the absence of contributory fault proved against respondent, it would relieve her as effectually as similar findings' on alI the charges. She was Such contributory fault is,b:owever, proved. aga.inst running at an unjustifiable rate of speed-but for which the collision, I believe, would not have occurred; notwithstanding the schooner's fault. She was making nine to ten miles an hour ina thick fog, through which approaching ves.sels could not be seen over the fourth of a mile. That this is excesr;li'ye is, I think, clear. Coming unexpectedly upon an approaching vessel, a.t such a distance, and with such velocity, it would be virtually impossible'to avoid disaster. The argument that she stopped bef(jre reachirig the schooner, 'and that the latter drifted against her, and was thus injured; finds no just warrant in the .Although ingeniously presented, and as sugearnestly and ably urged, it 1S clearly unsound. To gested, within the distance required was, I believe, impossible. It must be remembered that the schooner had a fair wind, and was also running rapidly. ·It is quite probable,-:'ll:ielieve clear,-that with a. moderate and proper rate of speed the respondent cMld have kept off. The master testifies that at five or six miles an hour he could certainly have avoided the collision. If unable to see a vessel at greater distance than he saw this his speed should have been so reduced as to enable him to keep off at that distance. Any higher rate was improper. This is the true rule, having the support of sound reason and all well-considered authority: The Panama, 5 Sawy. 63 ; The Europa,l Prichard, Adm. Dig. 187; The Blackstone, 1 Low. 488; The Colorado, 1 Brown, Adm. 393; The Monticello, 1 Holmes, 7. This conclusion disposes of the case. It is unnecessary to consider whether the respondent was guilty of other fault. It is clear
918
PBDEBAL BJilPOBTEB.'
that each party was guilty'in the respecUound and stated, whether guilty in other respects or not is unimportant The disaster must be attributed to the concurring faults, alxeady found. The libellant will therefore receive. a decree for half damages. The answers of the assessors fully sustain the views expressed, and will be filed herewith. The court submitted to nautical experts called as assessors certain
questions, which, with the answers thereto, were as follows: (1) Ubder the circumstances stated by the steam-ship's ofllcers,-the condition of the.atmosphere and speed of ten or even nine miles an the Pennsylvania? ; hour excessive, Answer. The .steamer's course the wind was S. W., strong" with a heavy head sea, which, for the safety of the men, occasioned the sta· tioning of the lookout at the..bridge instead of on the forecastle. The night , was dark, and the atmosphere so iliick as to require the constant use of the bells, making between nine steam-whistle. The steamer was under and ten miles per hour when the red light of the schooner 8. B. Hume was first seen, about one point on the starboard bow. and about four lengths of the ship distant. '[1nderthese circumst;ances, as stated by the OfllCl;lIS of the. steamer, the speed of nine or ten mUes per hour was excessive, and should have been prudently reduced to a point control with safety, which would be half her maximum speed rt:lgulated by the bells governing the or a.bout six knots per hOUr. ' , ' (2) Might the display of storch by the schooner when the steam-ship first came into view have aided to keep, her ,o1f ? . Answer. The schooner's course 8. E., 'single-reefed mainsail,the con· ditions of the weather as abbve stated. Had a torch-light been displayed when the mast-head'light of the steamer was.first sighted; the officers of the latter would have the glare of its 'flash before the red light came into view, and in time to determine the direction of theschoOlJ,er, thereby aiding the officers of the steamer in averting the collision, either by reversIng the engine .. or by altering her course.
TJDlI t
WILLIA-MOOOK.
(Di.tricl (Jourl, S. n:Newyqrk. .J,une 15,1882,\ CnAn'l'ER-PARTY-SupPLms-LmNs. "
Where the charterers ola vessel agree to pay all, the expenses, Qf,sllpplying her, and a person furnishing supplies i!\ notified by the own!lrs of the terms of the charter-party andforbidden to ,credit the vessel, he cannot acqUire anyiien upon her for supplies afterwards furnished.' ' , The libellant, having such notice, arranged with the charterer for weekly payments. Hela, that subBelJuentsupplies must be deemed furl!-ished upon the , personal credit of the charterer only. .',
2. BAME.
3. 8m..;....:MA:.sTER-WBEN
MAY
BIND' CHAR'1'JllRED VESSltL.
It is only ill cltculnstanoesofdistress in a foreign.port, or where repairs or 9upplies are necessary to enable the. vessel to complete her voyage or,reach the hands of, the owners, that the master has an implied authority from the owners to bind the ship contrary 'to the known terms of a charter-party
Libel in rem for Supplies. On the sixteenth day of May, 1877,the owners ,of the William Cook, of this city, chartered her to J.osiahPollockfroIll June '2 to October 1, 1877, to be used in the excursionbusmess on the Hudson river, the East river, and Long Island Boun.d;thecharterers 'to have and to pay all expenses of manning and, ing her. Pollock took possesion of the boat on the first day of June, and used her only in excursions t'o obtainingcoal from the libellant's yard at 'Hoboken, New, Jersey. ,The agent, of the owners seeing her' go to this yard, prat;lumably for 'Coal, went there, and also to the office of the libellant in HobokEln, alld gave notice of the terms of'thecharter, and forbade supplies bei;ng fur,nished upon the credit of the vessel. This notioe. was conveyed to the president of the company, who afterwards 'went withbis cQIlecf,pr, to 'the office of Pollock, in New York, and arranged with him to}».lty for the eoal in weekly pa.yments. Pollock paid fot the coal up to the twenty· fifth day of Juna only. .On July 7th possessipn of ,the vessel was retaken by the owners, for defa.ult in the payment of the hire.ll,coord,· ing to the terms ofthecharter-pBirty,&M ,this libel was ·filed in rem to recover for the coal futDisbed herby the libellant from June 25th to July 7th. Abbett etFuller, for 'libellants. Benedict, Taft it Benedict and S. H. fol',olaimants. BROWN, D. J. The libellant is in this ease precluded from .tpat the coal 'was furnished upon theoredit afthe v6sl{el. T4a ,evi:-