FEDERXLREPORTER.
vol. 53.
'\'Wts,ebb. AcoordiIlg' to the almitnM it"ivas lii.ghwatel' 7P.'M. 'Tlie;ebb current there continues; tOI'UD three: hours of high water at Go-vel'ftor's islaridNtIbe'Dtt'lMg Holberg, 36 Rep. 917, note, div. 3;) ,on this ocabout 4: o'clock-an hour and a 'half after the oollliriron.' 'TM Wind,:m.oreo"Ver, is shown to have' been 'fresh, yiz.: frOm.121lo,jt4l1mbts; and though there were some lulls,these did not go Mlo1v'/'tJ trlCrts;So that if a proper lookout had been 'kept, there WRs iabU!IlOl1t' opPortunity, for the steamer's disabllity'w'have been recognized:; and ample wind and space for the SChooner to have kept out of 'her DeCrOOs!.may be enterM accordingly on each libel for, one half the .,
the that
.a,.)· .
,';
.
. Th ll Sandy HOok from thellastward, drawing towards the ang Island coast dn a course of W. N. W She was capable ot 9t to 10 knots an hour, but was running about 4 knots. She heard the Umbria's w;histle ,abollt two, points on her port bow, and was immediately put two. ,poin,tsto st.arboard.blowing a short whistle. She was kept on this course, though the whistle was heard three or four tim.es with increasing distinctneslPGn· her port bow, until the Umbria was seen. 900 feet away. and about ,ftvc'pdints on her port hand. Her engines werllthen put full speed ahead t() Ilr()ss Ule UmbJ;h,/s course, but she. was unable, to escape, and was hit at an angle of siX or. seven points, her stern being cut completely off. Held that, in view of the Umbria's' apparently rapid approach on a crossing course, it,1Was the Iberia's1mperative duty to stop until she could obtain a clear unllerstanding of the Umbria'S course. and she. too, was at fault in failing ,to.doso. and the case was one for divided damages. Shipman, J .. . dissenthtg.· 40 Fed. Rep. 898, reversed. 8.SAME-DAlIIAGES-ToTAL LOSS-SUBSEQUENT FREIGHT. In case of destruction of a vessel by collision the recovery is limited to her . value. with interest from the time of the loss, and freight which would have <mthe particular voyage, and there can be no recovery of net been freight wlii'ch would have been earned on a subseqqent voyage from the port of immediate destination. and for which the vessel was already engaged. 46 .)3'ed. Rep. 801, reversed. 4. SAME-BOUNTIES. In case of destruction by collision. the fact that the vessel would have been able to earn a bounty under the law of her nationality is an elem.ent of value proper to be considered, but 1)0 allowance can be made for loss of bounty.
t.
v. STEAMSHIP CO., Limited. a.reult Court of. Appeals, Second Circuit. Octobllr4- 1892.) No. 45. 1. UOLLtsroN.....BETWEEN STEAlIISHlPS.,-FOG. 'The illte.JXH!hip Umllrl. , cllpable of 19t knots per hoqr.bound from New YO,rk tQ,:l,.iwrpQol. havlIlg passed Sandy Hook and discharged her pilot, was ona c6ui'SeE. by S. t So, about six miles oft Rockaway beach, Long Island. runhing'fullspeild ina dense fog, sounding her whistle every minute or two. A faibt'w4istlll was heard, which seemed to be two or three points on her starboard bow." She was then slow,ed a few 1D,0ments to IlIbout 13 or 14 knots, wheJ;l thll wblstle was againpeard, more. distinctly, and in about the same direction. The master thereupon orderedfu1l' 'speed ahead. In about two minu·tes the steamer Iberia loomed into sight about two lengths ahead. The were immediately reversed, and her helm ported. but she struck. cuttipg her in two. Held, that the "\,hnbria was guilty of rec\dell's naVigation in dlsreg-arding the rnle requiring steamers to slow in a fog;andinll.ssuming that she was clear of the Iberia's course. 40 Fed. Rep. 893. .. ':'.' . SAJ,IF). " ',' " ," ,
I'ABa. fl. CUNARD
289
Appeal· from the Distriet Court of the United States tor the Eaa.. ern District of New York. In Admiralty. Libel by Cyprien Fabre, manager of the Compag. nie Francaise de Navigation a Vapeur against the Cunard Steamship Company, Limited, to recover damages for the total destruction· of the steamship Iberia in a collision with the steamship Umbria. The district court held that the Umbria alone was in fault. 40 Fed. Rep. 893. Subsequently, on exceptions to the report of the com· missioner to whom the cause was referred to ascertain the damages, the court held that libelant was entitled to re(jov:er the net freight which the Iberia would have earned on a su})sequent voyage for which she was already engaged, and which was to begin at New York, whither she was bound at the time of collision. 46 Fed. Rep. 801. Respondent appeals. Reversed. Frank D. Sturges and Frederic R. Coudert, for appellant. Robert D. Benedict, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. WALLAOE, Circuit Judge. This is an appeal from a decree con· dElmning the Umbria for the damages sustained by the Iberia in consequence of a collision which took place between the two steam· ships on the high sea, about six miles off Rockaway beach, Long Island, on the afternoon of November 10, 1888. There was a dense fog at the time, and had been during the forenoon, but lifting at in· tervals, a strong breeze blowing from about S. S. W., and a heavy swell rolling in from the same direction. The collision took place at 1 :13 P. M. The Umbria was a steamship of the Cunard Line, 525 feat long, capable of a speed of 191-2 knots an hour, and was bound on a voyage from New York to Liverpool, carrying passengers and freight. The Iberia was a steamship, 240 feet long, capable of a speed of 91-2 to 10 knots an hour, and bound for New York, with freight. The Umbria, after passing Sandy Hook, and discharging her pilot, W1t:J put and kept upon a course E. by S., 3·4 S. She had been going at full speed more or les!,! of the time, sounding her whistle at interTnls of a minute or two apart. She was going at full speed from 1 o'clock P. M. until 10 minutes· past 1. At 10 minutes past 1 her speed was slowed by the order of her master, awaiting the repetition of a whistle which had been faintly heard off her starboard bow, and had been reported to but not heard by him, and which afterwards proved to be the whistle of the Iberia. The whistle was heard again, this time by the master, who, assuming that it came from a steamship approaching on a course approximately parallel with that of the Umbria, and bearing three to four points from the Umbria'S starboard bow, put the Umbria ahead at full speed by an order which was given at 11 minutes after 1 o'clock. While running under this order, another whistle was heard, and almost si· multaneously the Iberia loomed into sight about twice the Umbria's length away, and soon was seen to be crossing the Umbria's stem. rrhe Umbria's engines were immediately reversed, and her helm ported, but it was too late,and the collision ensued. v.53F.no.2-19
heard what he conjectured might be a WhiSl1e'onthe starooal'd;bow, but he was so uncertain whether it' Wltl!lll, !hiStM,that he thought best not to 'report it; that within It minuoo'or two he hea.rd,iwhait'he was sure was a faint whistle, bearing';', as iliethought; about 1Jkree points from the Umbria's starbolt1"d bO!w)'l1nd thenrep JPtedl'i'tlto the main bridge; that he then heard' it agam,. 'inapparent1y,tMl1fame direction, and again reported it. The chief' 'officer teStifies that, henad gone to the main bridge to see the ttu)jstet'j ith'a1J,: just in the act of speaking to him, the"second'bfficer, whO 1ta;s alsoon the main bridge, said a whistle that he bimse1fheard l something 'like a whistle, but was not sure whether it was one;' that the'Dla.s1Jer then gave the 1
is as follows:, The third officer, who was on the
to the whistles given by the
bow" apd a considerltbl{l off, but not very plain; that the nUtsWr theh"etUd,'''We) are'well,'clear," and, ordered the engines ahead. The second officer testifies that he heard a very faint whistle, as,' near ' a$" he 'oo'Uld judge,''abOut ·two points or more on the starboard tha.t after,:the order: 'to slow was given, he heard it again, still I faint; ,but,more distitmt than the preceding one, and niore nea.rly ahead,and.that <the master then said in substance: "She is well clear of olii-track. 'Letthe Umbria go full speed past her." ',','j,' : The Iberiawas approoohingSahdy Hook from the eastward, on the !IJong Island shore of W. :N. W. She a course had been' going in the fOgl ata speed of about four knots an hour, and making occasional' soMdi:B:gs. On two, occasions within the half hour preceding the colli8i()tl she had heard the whistle of an approachingsteaIher'a on her port bow, had altered her course two points· to the starboara,' '!tept on until the whistles indicated that waspasMd, and. then returned to her former course. About a q'l1at'ter of an hour after passing the last of these steamers, ,she heard a whistle,whiehproved to be that of the Umbria, bearing about two points on her port bow: Immediately, as on the previous occasions, her head was. put two points more to starboard, a short whistle was blown, her,'he1Ill was steadied at a course N. W., and held so until the Umbria 6alne into view, about 900 feet away, and bearing about five points on. b,er port hand. She then put her engines full speed ahead in, the attempt to eScape the Umbria by crossing in front of he!!. and nearly passed her, but the Umbria struck her stem on. at ana.ngle of about siX or seven points, and cut' her stern completely ofr; 'After she heard the first whistle of the Umbria. and had altered her'courseto N. W., and while she con· tinued on this course, beforeseeitig the Umbria, she heard four or five whistles from the Umbria, at intervals of a minllteor two between each, all or five pomtsonthe Iberia's port hand, or, as her master says; "gaining imperceptibly on her stern, and' each clearer and stronger than the preceding one." , Prudent seamanshipreqllirel a steam vessel navigating in a fog, i
FABRE V. CUNABD'STEAMSRTP 00.
291
hearing apparently forward()f her beam the fog signal of another vessel, the position of which iifnotascelltained, if the circumstances a'fld then navigate with cauof the case admit, to stop tion, until danger of collision over.' 'l'his r.u1e of conduct was approved by the international' marine conference of 1888, as appears by article 18 of the proposed regulations. That article merely formulates the duty which nautical experience had found it necessary, to observe, and which the courts had often declared obligatory. One of the more recent adjudications in which it was reiterated is Macham v. City of New York, 35 Fed. Rep. 609, in which the court, 'applying it to the case in hand", used the folloWing language: "Under such circumstances, the steamship' had no right to act upon conjecture. Her duty was to reduce her speed to the lowest rate compatible with her efficient control, and proceed cirCumspectly, until' she could locate the other vessel,and ascertain her course, or until further signals that the other vessel was beyond the range of risk. "
Had this duty been observed by either the Umbria or the Iberia, the present controversy would not have arisen; the collision would not have taken place. It was disregarded by both of the vessels. The master of each substituted his own judgment in place of it. The result affords a striking illustration of the propriety and necessity of obeying it. The Iberia is less censurable for porting her helm upon hearing the Umbria's first whistle, than for persisting in her course to starboard snbsequently. If it' were ever permissible for a vessel to act upon conjecture, the Iberia ought not to be blamed for doing so under the particular circumstances of the situation. When so near the coast of Long Island, her master naturally assumed that the course of an approaching vessel would not bear towards the coast, and would be eastward, or eastward and southward. Hearing a whistle two points on the port bow of his own vessel, and apparently a long distance away, it is not strange that he' assumed that by porting he could cross the' path of another steam vessel before she would reach the point of intersection in her course and that of his own vessel; and he certainly had a right to assume that the other steam vessel would only be going at a moderate speed. If the Iberia had not been going slowly, or if, with the change of course, he had put her at a greater speed, the risk in porting would have been lessened, if not reduced to a minimum. But, after porting, the Iberia was in· formed by the whistles from the Umbria that the latter was rapidly approaching on a course crossing her own, and that the relative bearings of the two vessels were not changing. During an interval of probably eight minutes, the whistles of the Umbria apparently continued to bear steadily at about the same place on the Iberia's port hand. This should have made it clear to the master of' the Iberia that the vessels were approaching so as to involve the risk of collision. Under such circumstances, it was his imperative duty to stop his vessel until he could come to a clear understanding of the course of the Umbria. The event proved that she would have escaped, if her ,engines had been put at fun speed, but it could not be foretold that she could do so, and the only proper course was to· ob·
292
FEDERA.L REPORTER,
which,requu'es steam vessels .when approaching one another, so as to inv.olve risk of cQllision, to slacken speed, or, if necessary, stop and reVlel'l!le. It is the imperative rule, when two steamers' are approaching each. other in a fog, and the signals of indicate that they are drawing together upon opposite or courses, for: each to 81i<)p until a clear understanding is reached with regard tQ their respective positions and courses, and, if there be any confusion of signals, or any other apparent risk of collisioll,not only to stop, but to re:verse their engines. The law was recently stated i:n these terms in The North Star, 43 Fed. Rep. 807, by Judge Brown, now of the supreme court, and has been freqUently so stated previously in. our C{Hlrts. To the effect are the decisions of the English courts in The Beli'yl, 9 Prob. Div. 137; The Ceto, L. R 14 App. Cas. 670 ; The Frankland and The Kestrel, L. R. 4 P. C. 529; The John McIntyre, 9 Prob. Div. 135; The Ebor, . 11 Prob. Div. 25; The Resolution, 6 Asp. 363. The facts speak ao clearly in condemnation of the Umbria that it is. a .matter of .surprise that learned and. experienced counsel should insist.· that 'she was properly navigated. Her navigation was not onlyculpa;b}e, it It ,WalHJulpable, because, after slowing her. speed momentarily to listen for the whistle ,which had been reported, but which he had not heard, her master acted on mere conjecture,8l'lld put the"Uinbria ahead without sufficient information of the 'course and position of thelberia.. It was reckless, because she was pntahead at fuR.speed; and kept at full speed until the collision wasdnevitable. This. was a 'flagrantviolationof the law, which requires every' .steam vessel, when in· a .fog, to go at moderate speed. We do not stop to her earlier conduct in running fast in a fog, which at times was so thick that vessels were not visible more than 400 feet away,. ;along a coast crowded. with> vessels, bound to a.nd from the port of,Naw York. It suffices to condemn the Umbria 1 o'clock she had been running in a .thick fog at full speed; that, When' 81 vessel was .heard somewhere Off hel' starboard bow, although. :h61l' speed !wasthen reduced; so that for sometime-less . than a minate----she may have been going at notD1ore than from 13 to 14 knots an hour, slie was put agaih and kept at. full speed without any information of theeourse, and with but little of the location, of the other steamer. Her master had not heard the faint whistle which some of the others.heard, or thought they heard. The more distinct one, which he did hear, and which he thought seemed to bear four points off the. ,Umbria's bow, was a faint one, and seemed from one to to the other officers of the Umbria to bear three' points, and to one of them to be drawing ahead of her course. Her master knew, or was bound to know, that at full speed the Umbria could not be stopped within the distance at which, in the then state of the fog, she could discover another vessel so as to avoid collision. More inexcusable misconduct than characterized the navigation of the Umbria can hardly be imagined. As the case is one where both vessels were in fault, but for which the collision would not have happened, the loss must be divided between them. .
THE LISBONENSE.
293
The case also involves a question of damages. The Iberia. was under charter, awaiting her arrival at New York, for a voyage from New York to Cadiz; and cargo had been actually engaged for the voyage, upon which she would have earned freight, less expenses, of $3,632.32. It has been generally supposed that the owner of aveseel, in case of total loss, is entitled to a recovery of the net freight upon the particular voyage, together with the value of his vessel and interest from the time of the loss; and that interest from the date of destruction is given in lieu of the profit which might have been derived from the subsequent use of his vessel. The Amiable Nancy, 3 Wheat. 546; The Columbus, 3 W. Rob. 164; The George Bell, 3 Fed. Rep. 581; The North Star, 44 Fed. Rep. 492. None of the authorities cited in the opinion of the learned district judge hold othei'Wise, except the case of The Freddie L. Porter, 8 Fed. Rep. 110. The question is not free from doubt, but the weight of authority seems to be in favor of limiting the recovery to the value and the interest from the time of loss, unless there is a loss of freight which would otherwise have been earned upon the particular voyage in which the vessel is lost. In estimating the value of the Iberia, the circumstance that she would have been able to earn a bounty allowed by the French law was an element of value, and was properly taken into consideration. No allowance was made for loss of bounty. There is no merit in the exceptions to this ruling, nor in the other exceptions which relate to the allowances of certain items of loss. . The decree of the district court is reversed, and the reo manded, with instructions. to enter a decre in conformity to .this opinion, allowing the appellant the costs of this court, and dividing. the costs of the district court. SHIPMAN, Circuit Judge, dissents from the conclusions of the foregoing opinion in regard to the Iberia's contributory
THE LISBONENSE. LA CHAMPAGNE. SINGLEHURST et at. v. LA cmU'AGNIE GENERALE LANTIQUE. (Circuit Court of Appeals, Second Circuit. December 13, 1892.) L CoLLISION-STEAMERS-CROSSING COURSES-INTERNATIONAL RULES.
The steamer La C., outward bound at night by way of the main ship and Gedney's channels, after passing Sandy Hook, sighted, about two miles off, the lights of the steamer L., ,about two points on the starboard bow, bound up the Iilor.th cl>annel and the swash, the axis of which crolUle8 the main ship channel at an angle on the southwest side of 10 3-4 points. The speed of La C. was about 12 knots, going with the ebb tide. The L. was going at full speed. 7 1-2 knots. When the L. was seen the engines of La C. were ordered to slow, which order for some reason was not obeyed; and her wheel was ported a little. so as to ::arr.v her along the south side of the channel, but her great draught vrevented any permanent change of eourse in that direction. About the same time the L. gave a