73 F. 878 | 2d Cir. | 1896
The opinion of the district judge is exhaustive, and sets forth in detail the movements of the respective vessels. Inasmuch as there is less dispute than usual on this branch of the case; and the appellant’s argument practically charges error in the findings of fact only in those particulars which relate to the position of the schooner’s forestay sail, it is unnecessary to discuss the testimony in detail. The schooner was sailing on the port tack, on a course of about S. W., with the wind two points abaft the beam. The wind was light to moderate, estimated by her officers as about a six-knot breeze, although she had since 6:30 p. m. covered a distance which would make her speed for the three hoursi preceding the collision considerably higher. The steamer was going at a speed of about 11 knots, on a compass course of E. f S. The schooner first sighted the steamer’s xvhite light and red light on her starboard bow at a distance of two miles or more. This indicated that the steamer was crossing the Daylight's bow. No change being made in the steamer’s course, and the vessels draw
“There were live persons on the steamer who were in a position to see the schooner’s groen light, four of whom ought to have seen it, if U was visible, before the torch light was exhibited. The interval was a considerable one. The nighf; was not bad for seeing lights; and, if it was visible, nothing but simple negligence conld have prevented its being seen. There1 is nothing to indicate that the officers were not reasonably vigilant and attentive to tlieir duties. Under such circumstances, failure to see 1he light has been frequently held to be strong evidence that the light was not visible, and this ought to be deemed sufficient where, as in Unis case, there appears to have been a reasonable and sufficient cause for the obscuration of the light. The length of the forestay sail boom and the spread of the staysail were such that, with a list of the vessel to starboard, and the bellying of the sail, the green light might have been obscured when the vessels were in such relative positions as these. The only check to the obvious tendency to obscure the light would be scant'play allowed the staysail sheet. But, even ,as the evidence stands upon that point, it does not seem to me that this would necessarily prevent obscuration.”
The conflict of evidence necessarily left the case to he determined upon its inherent probabilities, and it seemed to the district judge
It is contended by the appellant that there are such discrepancies in the testimony of the steamer’s witnesses as to what they saw immediately after the flash light as to cast discredit on their testimony that they were vigilant. An examination of their evidence does not lead fls to this conclusion. Campbell, the lookout in, the stem, on the forecastle head, after seeing the flash light on the port bow, saw the loom of the schooner’s sails, and when very close saw her red light on the starboard bow. He furthermore says that he does not think he saw a green light, because it was a good while since, although he is not very sure about that; thinks he might have seen it; a blink of the green light off the port bow. Duffy, the second lookout, was on the lookout bridge, 7-|- feet above the deck and 70 feet aft of the stem. He stood, therefore, more to leeward of the Daylight than Campbell did. He saw the flash light off the port bow, and a little after the green light. “About thirty seconds before collision” he saw the red light on the starboard bow, a very little ahead. This witness was examined upon written interrogatories in San Francisco, — not always a very satisfactory method of eliciting testimony, — and his story as to what he saw subsequent to the first appearance of the green light is somewhat confused, but we do not find in it, as appellant contends, a contradiction of the other witnesses as to the green light being seen, at some time before collision, off the starboard bow. The chief officer and the third officer first saw the green light from the port side of the main bridge, nearly 60 feet aft-of the lookout bridge. They were, therefore, still further to leeward of the Daylight than either Duffy or Campbell. The chief officer made it out with the naked eye, but the third officer only with the glasses. McDonald, the wheelsman, saw the flash light off the port bow. He is not very positive or definite as to when or where he saw other lights, but, as his attention was given to the wheel, this is not surprising. We find nothing in all this testimony to cast discredit on the steamer’s theory of obscuration. Hor is the fact that the green light soon became bright to those on the steamer fatal to this theory. If, when first seen, it was not visible to the lookout in the stem, but was visible, though dimly, to those a little further to leeward, that fact would indicate that the interposed sail, if that was the cause, extended so little beyond the line of light, that a trifling change in its position would remove the obscuration, and on the course the schooner was sailing a very slight change of her head to leeward would becalm the forestay sail sufficiently for it to come inboard enough to clear the light.
The appellant relies principally, however, on the evidence as to
The decrees of the district court are affirmed, with costs.