BRADLEY tI. THE JOHN PRlDGEON, JR,
261
certainly it w.ould have been their duty, under the nature of their con· tract, to extinguish the fire, or endeavor to protect the cottqn from it. It is true, the screwmen were not sailors, and they were not of the ship's crew; nor were they passengers, in the common meaning of the term; and it may be somewhat difficult to define accurately their relations to the ship. But under the rules well recognized as inhering in theprinciples of lllrw administered in admiralty court. it seems clear enough that in the nature of and by reason of the contract under which libelants were then employed in receiving and storing the ship's cargo of cotton, that particular relations followed and existed between them and the vessel, which made it their duty, in common with all the sailors or passengers on the vessel, to do and render all the services which they did render when they found the ship's self and cargo imperiled by the fire in the cotton bales with which they were loading her. The sense of duty which prompts a sailor to be skillful. daring, and brave. or a passenger to be zealously active in his efforts to rescue his vessel from the perils of the sea, grows out of the reciprocities which substantially inhere in their relations to the ship. However valuable and necessary the service of a sailor or passenger may have been in extinguishing a fire which threat,. ens to destroy a vessel or imperils the cargo and the lives uf all on board, it is well known that public policy forbids that either should be rewarded as salvors when the work or service rendered by them is not beyond, but within, the line of such duties as in the nature of things grow out of their well understood relations to the vessel. Without attempting todefine more distinctively the relations of libelants to the ship on which they were sleeping when the fire occurred, it seems that their relations to the imperiled vessel were not essentially different from those of a sailor or passenger, which prompts them to zealously render all possible assist· in a ance, under·theconscription of a sense of duty covenant rather than as voluntary adventurers. Libelants may have been, and I think they are, entitled to liberal remuneration from'the ship's owners; but an allowance to them as salvors cannot be made with. out violating the rules and principles of law which, in the interests of public policy, courts often liberally construe for the encouragement cif men who volunteer valuable services to a vessel in distress. Judgment for defendant.
BRADI,EY
et al. v.
THE JOHN PRIDGEON, JR.
(District Oourt, N. D.
1.
COLLISION-BETWEEN STEAMERS-FoG.
The steamer C., while steering north by east, in a Jog, was struck by the steamer P. on her port bow, and sunk. The testimony on the part of the C. was to the effect that the whistle of the P. was first heard on the port bow of the C.; that the wheel of the C. was at once ported aquarter.of l'l point and one blast. of whistle blown. to indicate that she would pass tile P. to port; that, soon afterwards, the P. 's bright light and green light being still on her p.ort bow, her wheel was put hard a-port, and she was swung several
"" Thll, testi1ll9nyo,n the part,of the " p"W&S tliat while steering south hs]f west th'ewhite light of the'C. was seen . 'about:fjne and one-half, points'.eff !the starboard 'bow'of'the P.; <that two . ;,biaets,' df, the steam-whistlle were iIQ!!1ediately blown, and. nO, answer' being th,e signal was'rcmeated; a,nd that then on,a blast of a whistle being heard close hand the, P. 's wheel' was put hard a'starboard. and signals given'to sf.()p andrevers61 but thatthe're was not time to reverse. The test!· port boW' of the C. when the latter's whistle was , many that tlie P. was on , " I ,blown was corroborate 11 by the testi!!1ony of ,those on bqard a schOoner in ,', tow 'at' 'the C. The captain of the P. tbtified to the courseot' the vessel, but he :had', not seen the, Cdmpass., He ,aIM testified that, when he first sRw:the whl,te 1igoht,of the C., ,he did, not knOW it ;was that ofa steamer. Held, that the officers the P. were negllgent in not stopping when they first saw the white light of the C., and in starboarding, instead of porting. S. SAME. Where the C. had two,men of eXPllrjence stationed as lookouts in the "eyes of the ship. "there was a sufficient cOll).pliance with its duty as to lookouts.
8.
SAlfE.
",
'"
'
' T h e C. was held not to be negligent in not blowing fog'signalsat proper tervals where :the testimony of ,those on board the C. was that fog· signals were SOUnded at intervals of a !!1inute or a minute and a half from the time the fog 'coIn.,rnenCed; such testimony bein'g corrobdrated by those on board schooners' ,in the vicinity, and the only evidence to the contrary being the factthat they were not heard on poard the P. until 'after the lights of theC. were, seen. 4. SAME. , . A speed of five miles an hour, ina fog, with some sea and wind, was held not to show negligence. ' '"
In Admiralty.! , . H. D. Goulder and Will. B. Moak, for,libelants. 8chuyler &- Kremer, for claimant. BLODGETT, J. On theevenfug .of October 13, 1888, there was a collision on the waters of J:,ake Michigan, a short distance off the port of Sheboygan. between the steam-propeller John Pridgeon, Jr., and the steam-propeller Selah Ohamberlain, which resulted in the sinking and total loss of the Ohamberlain: and by this suit. libelants, as owners of the Ohamberlain, seek to recover the damages sustained by them from the loss of"their steamer. The material allegations of the libel are that the Ohamberlain, boundona voyage from Milwaukee to Escanaba, left Milwaukee wUhthe schooner Fayette Brown in tow, and .proceeded on her course near the west shore of the lake, and that at about 7 o'clock in the evening the weather became thick and foggy; that thereupon the speed of the steamer and tow was reduced, extra lookouts placed in the bow in the best position for keeping a lookout, and a strict. constant, and vigilant lookout kept,:and three proper fog-signals of three blasts from the steam-whistle of the steamer blown at regular and proper intervals, and thereafter'and up t6 the time of the collision, the ship and her tow were navigated at a moderate speed, and with due care; skill; and caution; that while soproceedJng, and at abortt 30 minutes past 8 o'crOckou of single blast of a steam-whistle was heard bearing off the port bowof'the Chamberlain, which proved to be from the Pridgeon, ,J:r. hound south, or up the lake; that tll(Chlu;nhE)rlairi.responded immediately with one blast, ported her
BRADtEYV. THE JOHN 'PRIDdEONj JR.
wheel, and blew three blasts, as it signal to indicate a tow, when the Pri<;Igeon's lights were made coming on the port bow of the Chamberlain; whereupon the Chamberlain put her wheel hard to port and blew a single blast, and thereupon the Pridgeon blew two blasts, and struck the port bow of the Chamberlain, cutting into her hull a distance of 10 feet or more, and so injured the Chamberlain that she soon sank and became a total loss; and that the collision was caused solely by the fault, negligence, and want of skill of those navigating the Pridgeon., The answer of the Ogdensburg & Lake· Champlain Railroad Company, the claim!lnt of the Pridgeon, admits the collision between the two steamers, and the sinking of the Chamberlain, but denies all negligence and unskillfulness on the part of those navigating the Pridgeon; and alleges that for some time before and at the time of the collision it was, dark, rainy, 8nd densely foggy. That the wind was blowing a fresh breeze :from the southward and eastward, making a sea from that direction, and that the PridgeOl1 had been from early in the evening until shortly before the collision steering south by west. That. her lights were properly placed and burning brightly. That her speed had been checked, so that at the time of the collision she was running at a speed not to exceed four miles per hour, which }Vas not more than enbughto give her steerage way. That the master was officer of the deck, stationed, forward of the pilot-house, within easy reach of the signals to the engineer., intervals That the fog-whistle was being regularly and loudly of not less than a minute, by the second mate, standing close'to'the maSter. That a competent and vigilant lookout was posted forward, in the extreme bow, on the upper deck, and a competent, seaman in.chargeof the wheel. That while slowly steering along in this way, and when at a point some miles to the northward of Sheboygan, Wis., two blasts of a. from a .schooher were heard 'over the starboard ,bOW (If: the steamer, 'eVideritly heading westerly, and to give alhpleroomthe er's wheel was put to starboard a point, and there steadied. That about this times white light, about one and orie.half points off;thestarboa'rd bow of the steamer, was reported. That twoblast.S of the steam"whistle' were immediately blown, and, no answer. being heard,the signal wasrepeated,. there being scarcely any interval between the signals. Thatto the last signal· an answer by one blast of the whisUewas· heard, and"this being very close, the Pridgeon was immediately stdppedand ,backed j .but in a few minutes after this the Chamberlain hoveinsigMdirectly ahead, and under the .Pridgeon's how, whereupon the steamera collidedl,the Chamberlain; being struck on her port how, and cut down to the water. line. That the persons in charge of the Chamberlain were guilty of ligence, want ofskill, and fanltas follows: (1) In not hlllvingalcll)fup&i tontand vigilant lookout; (2) in not blowing the: proper fog-signals at pro})Qrinter¥als; (3) in running at toa grE'At a rate of speed; {4}in not answering the passing signals of the Pridgeon; (5) in porting, instead of starbollJrding, her wheeL. ,Abd, further, that lihelant has institutedpr-o-; ceedings in this court for limitation of its liability,as owner pro hac11ice of the Pridgedn:,,·for the damages occasioned by said
264
FEDERAL REPORTER,
vol. 38.
()eedings are still pending. The proof, as is usual in this class of cases, IS conflicting and contradictory.. All agree, however, that the night was foggy., that the wind was about S. S. E., and that at intervals during the afternoon and evening, up to about an hour before the collision, it had been blowing in strong gusts, with rain; but I think the weight of evi<lence is that at the time of the collision , and for an hour or more before, there had been but little wind"not:enough to fill the sails of the Chamberlain, or those of her tow. The chief difficulty lies in determining from the proof the respective courses of the two stea.mers at the time each became aware of theproximity of the other. The wheelsman of the Chamberlain states that from the time he took the wheal, which was a little after 6 o'clock in the evening, .her course had been N. by E., excepting that he altered the course a little about half past 7, to clear a schooner, and then resumed the course, while the ,wheelsman of the Pridgeon states that her general course during the evening was S. by W., but that just before the collision he had starboarded a half point to clear a schooner, whose two blasts of a fog-horn were heard over her starboard bow, and steadied, which would bring her course S. i W. And it may be here remarked that these seem to have been the proper and natural courses for these steamers to pursue, in .view of their respective destinations, and that these courses would bring them' in such relations that they might pass each other on nearly parallellines,or meet end on. As was appropriately said by Judge BROWN in the case of The Lepanto, 21 Fed. Rep. 651: "The basis of cases of this cbaracter is some fault in the person or persons sued. Fault cOI).sists in the violation: of some statutory rule of nn vigation or in the failure to exercise due nautical skill or prudence. The preponderance of proof is upon the libelants. To entitle them. to recover, they must point out the fault complained of, and· establish it by fair preponderance of evi. . dence." . The chief faults insisted on by libelants against those in charge of the Pridgeon are: (1) That the Pridgeon was going at too high a rate of speed;' (2) that, on discovering the Chamberlain's lights, the Pridgeon should have been stopped,orstopped and backed; (3) that, on discovering the Chamberlain's lights. the Pridgeon's wheel was put to starboard, when it ought to have been put to port. To my mind the weight of evidence quite satisfactorily shows that the Pridgeon was ou the port bow of the Chamberlain when those in charge of the Chamberlain first became aware that the Pridgeon was near them. The testimony of the master, wheelsman, and two lookouts of the Chamberlain all agrees that the first notice they had of the Pridgeon's presence was by hearing a single blast of her whistle on the Chamberlain's port bow, the different witnesses placing the angle from one to three points over that bow; and this testimony from the deck of the Chamberlain is corroborated by the testimony: of the master, wheeJsman, and lookout of the Brown,..."....the schooner in tow of the Chamberlain. Besides, the way the vessels came together, alsoiin my estimation, supports the. same conclusion. It is
BRADLEY t1. THE JOHN PRIDGEON, JR.
265
true, the master, wheelsman, and lookout of the Pridgeon say they first discovered the Chamberlain's light over their starboard bow, and inferred that the steamer bearing those lights was to the starboard of them, and this could not have been correct if the two steamers were at that time both standing on theh- alleged respective courses,-that is, the Chamberlain going N. by E., and the Pridgeon S.! W.,-unlessthecourse of the Pridgeon was to the east of the course of the Chamberlain, in which case the signal of the Pridgeon would have peen heard over the Chamberlain's starboard. bow. It wiJI be berne in mind that those on the deck of the Pridgeon, who testify to the direction in whit:h the Chamberlain's lights bore, all say that up to the time they first saw those lights they had heard no whistle from the Chamberlain; while the testimony from the decks of the Chamberlain and Brown is that the first thing they heard was a strong', clear blast from the Pridgeon's whistle on their port bow; the wheel of the Chamberlain was at once ported aquarter of a point, and one blast of her whistle blown, to that she would pass the Pridgeon port to port; that soon after this was done they saw the Pridgeon's bright light and green light still on their port bow, and then they put their wheel hard a-port, and the Chamberlain began to swing to starboard, and' had swung several points when she was struck. My own conclusion from the proof is that the Pridgeon's course was mueh more to the eastward than was testified to by her when tlle Ohamberlain's lights were sighted. The Chamberlain's cour::;e being N. by E., if the Pridgeon's course had been S. by E....o..-.and I conclude it must have been at least as far to the eastward as that-the Chamberlain's lights would have shown over the starboard bow of the Pridgeon. It is true, Capt. Sherwood of the Pridgeon testified that he was on his course S. 1 W., when the Chamberlain's light was reported, and I doubt not he thought so, because he had given no order to change it; but he did not seethe cottlpass himself, and I conclude that his wheelsman had negligently allowed her to come up a point or two without any orders from the captain to do so. In other words, I conclude that the Pridgeon was running directly, or nearly so, into the wind, which was about S. S. E. The master of the Pridge<'Jn says that, seeing at first only the white or mast-head light of the Chamberlain, he did not know it Was a steamboat; that the first he saw WliS a bright light; and he says he did not know it was a boat at all. Here is his explanation of the situation and of his own conduct as given by himself: "Question. What was the first thing you saw of the Chamberlain, or anything on herP Answer. I saw a bright light. I did not know whether it was the Chamberlain, or what it was. I saw a bright light before I kIlew it was a boat. Q. Did you get any report of that before you saw it11 A. The lookout saw it about the same time I saw it. Q. Did he report it? A. Yes, about the same time. Q. Where did you see that light? A. About two points on our starboard bow,-about two points. Q. What did you do after seeing that lightP A. I ordered the. second mate to blow two blasts of the whistle. Q. What nextP. A. We waited a moment, and we got no reply. Then I -ordered him to blow two more. When I ordered him to blow' two more I ordered the/wheel to starboard. Before the sound of the whistle died out, we got OQe blatlt·.Then I stopped our boat, and reversed her." ,
266
.
"
It appears to me havE'lknown:vhiswas. a smamer's NO,craft, unless it had betln .flv13ssel:at;anchof; had a right to and he must have known that he carry abrigbt light was of any aQchorage groum:l:iat all events,. ,he had no right to continue going ahead until he bad solved the question. as to what. that ligM mE)apt. Had then" it seemst()ple l!ill)1ost certain that the Qollis]QU would have been avoided; .and, if in any degree in doubt as to whatthe bright light indicated, his plain duty WaS to stop. Instead, however,..Qf stopping J1estarboarded his wheel, kept 'going ahead without slackening his speed, and, Whell within a brief ,time he saw the red and gave siglight of tJ1e Chamberlaip" he put his nals to stop and rever$e., :l3ut the enginee:rof the Pridgeon testifies that, ,although, .1w responded prQmptly to the signal,he only had time to shut off, but had, not reversed when the Qollision. took place; while the proof that the ,P,ridgeon had responded t6 her hard a-starboard wheel; and. was. swinging rapidly to port. when she struck the Chamberlain. What seems to ,me, under the circumstances, tq'have been a very .obviQus. on th!3 of the Pridgeon was .his starboardof the time. he first saw this bright light; iug as it seemsto.. me that tpe first thought which shoul.d occur to a prudent man undel',spchcirqurpstanceJ3 would be, to go to. starboard, passing whateVElrcraft the belonged to port side to portsjde. He adopted the other,. alternative: btlcause he assumed tha.t ·.the cr!lft carrying the br.ightJjght:w.asto. t11e starboard of him,when in fact the two steamers were eaphgthel' on converging ning and ,the Chaqlberlaingoing .east by two were.in the predicament provided for by J:9,,()f thflpe\V sailipg rqles: . ,. . are crossing, so as to involvel,'isl\ of colljsion, starboard oflbe way
it was,.carrying this light, on his staro\],t of her WE\Y. Thill obligati9nhe .collJqrha\l!'! pelJtfu1fi.lled.py;stoppiqg at once until he could decide ,in what ·manner;, hl'l J9ould, ,m9st.sE\fElly a'!'pid,thecraft on his starboar!iside. He eleqte4 swrQoafd hiil w4ool, ;when, it seems to Dle, from thEl proof, he when, it See1l1S,tp .me,. every instinct of caution should have prpmpted him to stop., " " I come now to consider the faults charged by the answer against the OhamMrli'iiit::i:' · ; i)', " .. ;' ',\ .1' .·.·'JlIt'rstf' Tflll,t llOta .proper. ,both of Qneon auQ., m,wha.t "the Se8tl!l:tenlterm,'.'the :Bytes 'Of the: ship,,", This" cel'tainly would; appaar "1;0: be;su!fficient duty as to lookoUts; " ... ' . .'''' II : : Secii'h'd.1dwln inot ·blowing fogl!ligtials at. iritervals."Th.e prMf Sh .w.s,t.h. . 'tt.; .o 'larly 'gi.ve.n ,.0 .th.. e.b.h.amb. ill.' . om. 'or; ari .hour and a half; perore SQllll?Ion. ,the:prqpersigl1als at,olp:teJ;0. ft.
261 vals'of a minute orai'mhluteaind'a half, frooi'"the'tinie' the fog set and his testimony is corrbb<Jrated by all the'dtherson the <if the' Chamberlain, and those 011 the Brown; and also' by those in'charge Of the sfuamers Nahant and Palmer, that were running on about the'same course as; th'e Chamberlain, and at short distailces to the east and astern' of her. The only evidence that bears against the conclusion that the proper fog-signals were not given is that they were not heard on ·the: Pridgeon' until after the Chamberlain's light was seen on the Priqgeon; and it is more reasonable, as it seems to me, to. account for this failure' to hear them on the ground ofinattention on the pa,rt of the lookout of. the Pridgeon than it is to say the signals were notghien, in the face of the positive proof that they were given. Indeed, so many cases occlir' whetefog horns or whistles are not heard, when the proof is clear'that they,.were given, that the proof in this case that the fog-signals of the Chamberlain were not heard on the Pridgeon until after the Chamberlain's lights had been seen from the Pridgeon,sh6uld have but little weight as testimony to show they were not sounded. Scientific:: theories' have been suggested of late to the effect that there are, at times', conditions of the atmosphere which make it acoustically opaque, and the time may eomewhen these theories will be sufficiently ee'tabli'Elhed to' make them safe guides in judicial proceedings,but at present I prefer to assume that signals shown to have been given were not heard 'because thOSe duty itwas tdl(!)ok and listenforthern were inattentiVe to that duty. ,Third. the Chamberlain was runfiing at too high a rate of speed.'" I think the proof shows that both these stearnerswere running ataspeed of about five miles anhourlrotn the time the fog: set in. The engiheer' of the Chaniberlain: says that was about his speed'; and the engineer of the P:ridgeonstates that his wheel was making from 35 to 40 tunis per minute,: which, by the basis he gives for calCulating- his speed; would makethe.Plj'idgeon's speed jnst about five mlles,1Ul bour; and I am not prepared ,to say from the proof that this was Mta moderate rll.teofspeeg.' in a fog wita ·some sea and wind. , Fourth. "That the Chamberlain was at fault in'not answering the passing siWlll.ls of the proof shows tha:t,before these pAssing signals had been given by the to the' effect that she wOllldpass the Chamberlain starboard to starboard, the Chamberlain had given her signals indicating that she would pass port to port, and had shifted her wh6eUn order to do so with safety, and I do not think it was a I fault on to keep to starboard under· thecl'rcum.:. the, part of the stances; and this disposesofthe fifth fault attributed to the Chamberla,in.' she ported when she should have starboarded. The proof satisfies me that the Pridgeon's whistle was heard on the Chamberlain's port bow some time before the lookout on the Pridgeon first sa"'ftheChamberUl.in'slight, because I can see no- reason wHy the of the Pridgeon shoulli not have been seen from the deck of the Chamibel'lain as:SOOl1 astheOhainberlain's light was thl:lideck of the. Pridgeonl As soon as the loud, short whistle ftom thePrldgeon was .heardon the Chamberlain,. of course all on the Chamberlaluand on o
268
DDERAL REFORTER,
the Brown, hertow,would have been on the alert to discover the Pridgeon's location and lights, but they did not see them until after the Chamberlain had. blown Ol}e whistle to indicate her position, and that she would pass port to port, and had put her wheel to port, and had blown three blasts to indicate that she had a tow, and soon after that the lights of the Pridgeon were seen over the Chamberlain's port bow, and it was at this moment that the Pridgeon gave her two blasts as a passing signal. There was, however, an interval of time between the sighting of the Chamberlain's bright light and the time when her red light was seen on the Pridgeon, which, if it had been properly improved by the Pridgeon in stopping and backing, would, as it seems to me, have prevented the collision. After a careful and laborious examination of the proof I am unable to attribute any special fault. to the Chamberlain. She was on her regular cO\lrsc; she had had no occasion to deviate from her course. It is true, her wheelsman might have become careless, and allowed her to swing by point or so, from her chart COllrse.; Those in charge of her heard the Pridgeon's short, clear, single whistlc blast on her port bow, ann, taking it for granted tpat it meant a, steamer bound up the lake on their port side, they replied with one blast, which indicated that they would pass port to port, but, to be entirely safe, the luaster oithe Chamberlain ported a, quarter of a point, giving the signal that he had done so; then the lights of the Pridgeon were seenCI'Ossinghis bow, but it was then too late to attempt, much less to /lccomplish,any maneuver to escape the peril. It is asked by the proctors for the Pridgeon, why did not the Chamberlain stop, and why; .was it not their duty to stop, when they heard the Pridgeon's Whistle on their port bow? The reply seems to m,e a natural and sufficient one.. They assumed that the Pridgeon was bound up the lake, and that they;would pass port to port. and gave their signaI8.accordingly. Nothing that is disclosed in the proof shows t.hat there was any intimation to those in charge of the Cham berlain that any other maneuver was required of them, and hence there seems to me t.ohavebeen no duty to have adopted any other expedient· ·Muchepape and time have heen spent in discussing the question as to time that this collision occurred. The question is only material as it may bear upon speed of the two ships at the time they sighted each other; and I find no difficulty in, determining from the proof that 1?()th steamers were running at the rate of five miles per hour when they hecan,le aware of each other's proximity. I have no doubt from the pr()of that the Cham berlain got ,under way outside of Milwaukee harbor with her tow soon after two u'clock; that her speed from the time she got under way was from 9 to 91 miles per hour, which,in the 5 hours before 7 time when the fog,set in.-would her about 45 miles. She had thus run under check at a speed of 5 miles an hour, for, say, anhpur and a half, or until about half past 8;7th43 time at which I conclwle' from. the proof the collision occurred, 7:"which would carry her abreast of, or a little below, the entrance to Sheboygan harbor, just about the point where the collision occurred.
SHAW t1. THE READING.
269
My conclusion is that there was either a careless or an incompetent lookout kept upon the Pridgeon, by reason of which the fog signals given from the Chamberlain were not heard on the Pridgeon, because the proof shows that the steam-propellers Palmer and Nahant also left Milwaukee about the same time with the Chamberlain. They took courses parallel with the course of the Chamberlaill, but a little outside of her, still within sight and hearing, and these two vessels were in sight of the Chamberlain up to the time the fog set in thick, although the Chamberlain had passed them both, and was a little inside of, as well as ahead of, them. Different estimates are given as to the distance of the Palmer, which held an outside course from the Chamberlain at the time of the collision, and for a short time previous to it, but probably was not to exceed four miles away from the Chamberlain, and the Nahant was between the Chamberlain and the Palmer; and all the testimony from the decks of the Palmer and the Nahant, and from the decks of the Chamberlain and the Brown, agrees that these three steamers heard each other's fog-signals right along up to the time of the c01lision, although, the wind being south-easterly, it would have il'terfered to some extent with the transmissiou of the sound from the Palmer and Nahant to the Chamberlain. The Pridgeon, approaching the Chamberlain ,with the wind in her favor, ought certainly to have heard the Chamberlain's if they were given; and it seems to me there is no other conelusion than that the reason why they did not hear them was because proper attention was not paid. I therefore find that the collision occurred by reason of the fault of those in charge of the navigation of the Pridgeon, and that the libelants are entitled to recover the damages.
SHAW 'l7. THE READING AND THE DAVID SMITH.)
(District Court, E. D. Penn8ylvania. October 1, 1888.) CoLLISION-BETWEEN STEAMER AND Tow-LIABILITY.
In a collision between a steamer and the tow of a tug. resulting in injury to said tow. it appearing that the tug and steamer were both in fault, held, that a decree should be. entered for the tow against both the tug and the steamer. .,
In Admiralty. H. R. Edmunda, for libelant. Tlw8. Hart, Jr., for steamer Reading. Driver & Coulston, for tug Smith. BUTLER, J. On the 18th day of October, 1887, the libelant was being towed up the Delaware river by the tug Smith, and when about the fourth of a mile below Greenwich piers (which are on the western side of the 1 Reported
by C. Berkeley Taylor, Esq., of the Philadelphia bar.
270
FEDERAIJ' REPORTER,
JrivErrJ' the: {steamer .Reading i appeared, near the Sarrie· distance, 'Coming dowri. Smith' was probably a little ,closer. to, the wasteI'D side (jf the channel than theReading,butso nearly on the same course with the latter that it would to change in passing. If obstruCtion had oeen encorinteI'ed, it would; therefore. have been her duty' to run eastwardly of the Reading. Just at" this time. however, a schootler' was towed out from the' piers and run across the channel. In this situation neither the Smith nor the Reading could safely turn eastward;, and attempt to cross the: schooner's bows. To continue their respective. courses would certainly have resulted in one or the other, if not both, <lolliding withthe schooner. If both turned westward, to pass under her stern, they would almost necessarily collide with each other. Theyahould, therefore, have stopped, or endeavored to do' so. Possibly the Smith could not have stopped, as the tide was running up. She could, however, have greatly diminished her speed,-reducing it to that of the tide. Indeed, I strongly incline to believe that the use of her anchorsa.nd those of the libelant, would have stopped her. The Reading certainly could have' stopped.. The tide was in her front and had she reversed and dropped her anchor, she would have stopped before reaching the point of collision. The Smith, instead of stopping, resolved tOl,'unwestwardly, and endeavored to notify the Reading of herprirpose, by blasts of her whistle. The latter vassel made no response, and the Smith, without further warning,.turned westward. :'The Reading made the schooner's stern as a like turnattbesame time, close as possible, struck the libelant (towed astern of the Smith,) and inflicted the damage complained of. That both vessels, were in fau'lt seems plain. The Smith was clearly wrong in turning westward without an answer to her signal, instead of stopping or endeavoring to do so, especiallyas she saw, or should have seen, that the Reading had turned in the same direction. The reason for her conduct is found in the testimony of her master. ,He supposed:the . Reading and .schoQlilerwere lying still, -that neither was under way. This error could only arise from carelessness in the lookout. Even if it were true, as 'urged in her behalf, that the Smith was on a westward of the Reading's, and had,. fore, a,rightto pass on that side, it;wasnevertheless her duty to endeavor to stop when phesaw,or should'have seen, that. the Reading also had 'turned in that direction, iilstead' of answering her signal. Admitting that the latter was w.rong in turning westward, the Smith could find no justification in this for continuing her course, and rUlJ.ning her. tow in danger. The Reading was wrong, as we have seen, in failing. to stop. She admits that it was her dutyJo stop, if possible, by the endeavor she has made to prove that she had tried to do so. Some of her witnesses say her engine was reversed. The distance she ran, however, the tide, and the fOl'Ce;·ofher blow in the 'collisiQn, satisfy me this testimony, caqnot upon. .lfshehad proposed to :StOPl and llad found .the reYilJ;$I).l9f herenginesiI,ll'ufficient toliWCOJUplish her purpose, she would have dropped her anchors. Had she done so, there is no room to doubt ,that she would have In-
no
:rIlE
"v.
271
deed, Ieannot dOu.bt that the prompt reversal of b.er engine would, of . itself, have stopped her. I i think the testimony justifies belief that ,she did not see the Smith and her tow, u.ntil she was almostitnmediately upon them, and did not, therefore, see any occasion for stopping. Had she seen them when the Smith signaled, she would doubtless ha.ve heard the signal, and answered,and have taken proper measures to avoid the collision. I think her attention was engrossed by the schooner direQUy in her front, and for want of a vigilant outlook failed to see the threatened danger below. However this may be, she should have stopped immediately upon the achooner and the Smith coming in view I a.nd;if the. reversal of her enghle was insufficient for this purpose she should have uSed anchors. She, also, therefore, is responsible for the injury inflicted. A decree must be entered for the libelaI;lt against both respond.ents.
a
THE
THE BRUCE ANDTaE HA:MILTON
,
WiBtrid
(JOi/lit,
E. D. Pennsyl1Jania. ,November 9, 1888.)' OF TACK.
oCoLLtsION-BTEiM: AND
Where a'sailing ve,ssel upop a particular ta,ckfinds that she is lik, ely, tOCO,I. lide with' a vessel propelled bvateam, and at or' about the time of. tile collis· ion endeavors to avoid it by dianging her courlle, she can recover' if a collia· ton results, even: though the particular of course was ill·advisel1·.,
SAIL-CHANGE
IriAdmiraIty. Libel Sor damages. , The. bark Excelsior. being injured in a collision ,with the tug. Bruce :and ahi'p Hamilton Fish, brought a libel against them for damages. ,The facts appear. in the opinion. Oha:rla Gibbons"Jr.,Ourltis Pilton, and J()hnF. I.ewi8, for libelant· .Henry R.Edmund8, for the Hamilton Fish. Alfred·Drivel' and J.' Warren Oou18ton, for the ,tug Bruce. , !
, Op. the Hth ,oUray, 1887, theliqelant, laderudth and bound for Philadelppia l w.as beating up l)elawa,re ,rhrj;u; a north-east wind, in charge of a competent' pilot. Between the hours of 2 and 3 P. M., when off. Reedy Island piers, near the east side of the channel, she turned about, and tacked westward, across the river. At this time the Brnce,: having!the Hamilton Fish in tow astern, was from one to tW9. steaming up the western .side of the channel. The vessels held their respective courses uritil the Bruce was about pass,ing, bows, so, as. to render colliaion.with the Fish' pioba-ble;lfnotjIl(witable, bifrk,to avoid, the danger, changed -helm, and'sought tOgo 'about. She succeeded in turning 'hel,' head u,P to the wind, but immediately fell back, and came into collision with the ship. Her witneSses aUributethefailure to get about to a. sudden of.wind·.' The.bark'alibtll tug with pegligence in failfngJo go apdtO,reduce her and charges the ship' Fish fllijulg tocas.toff or cut her whep dllng r