55 F. 536 | E.D.S.C. | 1893
These are a libel in rem. and a libel In personam. The original libel in rein was brought by the Charleston. Bridge Company against the schooner John C. Kweeney and the tug Belief, for collision with the drawbridge over the Ashley river. The second libel is in personam, brought in behalf oí ihe owners of ihe schooner John O. Bweeney against the Charleston Bridge Company and the owners of the tug Belief, for damages resulting from riie same collision.
Tiie facts immediately attending the collision are easily stated. The schooner John C. Sweeney readied the port of Charleston with a lull cargo of coal, to be delivered to ihe Ashley Phosphate Company at. its works on Ashley' river above ihe bridge. She cast anchor off Joe upper end of the East Battery? on the afternoon of 1st December, 1892. The tug Belief was engaged (o tow her up the river, and, to that end, left her dock about 4 o’clock of the next morning, proceeded "o the schooner, and took her in low. The hawser by which she was rowed was about 390 feet long, — 30 to 35 fathoms. When the anchor was up, the master of the Sweeney, who was at the helm, gave The wheel to a seaman and went into the cabin. The tug and tow went down Cooper river, and turned into the A_shley,in mid-stream, the tow following closely the wake of the tug. The bridge spans “lie river about one and a half miles up, and is in full view for over a milt». Along this bridge at intervals are white lights. The draw is double, div ided by a center pier iipon which the era wbridge works. There are fenders running out, one on the east side of the eastern draw, and another on the west side of ihe western draw, above and below the bridge. On the ends of the center pier, and on the end of each fender, is a stationary red light. The drawbridge has a set or pillars and a network of iron as its top hamper. Above this is a line of three lights, so arranged Tlm/o when the bridge is closed the lamps show a green light to the stream, and when the draw is open a red light. The tug ¡cheered for these lights on the draw, and, when tIic draw .opened, took direction for the middle of the eastern draw, the tow following. When about to enter the draw the master took the wheel, a seaman being near him on the quarter. The mate was forward near the bow. The tug entered the draw a,bout midway between the red light on the end of the center pier and that on the end of the easterly fender, and passed through. The schooner in tow entered the opening of the draw, and the mate on the bow on the lookout saw that she was going bows on against ihe eastern fender. He called out at once, “Starboard! Hard aslarboard!” to the master at the wheel, and in a second or two the schooner struck the fender about 30 feet from its outer end, glanced off, and went a,cross the draw, striking the drawbridge, then over the center pier, tearing
These libels are the result. They make three questions: Through whose fault was the collision, — the schooner, the tug, or the defective construction of the drawbridge? We must get the answer to' these questions from the circumstances immediately attending the collision. There may have been faults with each party. The injury must be the result of, or be contributed to by, such- fault. Glenn v. Railroad Co., 21 S. C. 470. What we must discover is causa causans.
Before entering upon this examination we must dispose of a question of evidence raised at the hearing. Under the provisions of the act of congress approved 11th August, 1888, the secretary of war notified the Charleston Bridge Company that their bridge was an obstruction to navigation. A board of officers was appointed, among them Capt. Frederick V. Abbot, of the corps of engineers, who is stationed in this state, This board made their examination and report, prepared proper plans for remedying the evil complained of, and directed the changes to be made. The bridge company employed their own engineer to make the changes required. His work was examined by Capt. Abbot, representing the secretary and the board. When these facts were offered in evidence they were objected to as incompetent, immaterial, and irrelevant. They were admitted subject to exception. Notice had been given that Capt. Abbot would be introduced in the case as an expert. In order that the court could properly appreciate the opinion which he would give as an expert, it was important to know, first, his profession and experience, then the circumstances under which he made his examination and formed his opinion. So, without discussing the constitutionality of the act of congress which was attacked in argument, or the right of the secretary to take the steps which he did take, or the conclusive character of the findings of the board or the right to impugn their finding, these facts showed that Capt. Abbot, the expert, was an officer of the corps of engineers of the army, of high character and ability, who, under the instructions of his superior, made an examination into this bridge, in which he was assisted by other officers of standing; that he himself personally made the examination, and under the sanction of his own official character, and under the orders of his superiors, formed his own conclusions, which conclusions he gave to the court. The facts leading up to this testimony may or may not have been, in themselves and standing alone, competent or material, but, as illustrating the character and value of Capt. Abbot’s testimony, they were admitted. Capt. Abbot testifies that in his opinion the bridge, as now constructed, is reasonably safe for navigation. Every bridge built across a navigable stream
The tug and her tow, when they were proceeding through Ashley river, came in sight of the bridge when opposite to Chisolm's mill. They were then about mid-stream, and the bridge lay straight before them. Tim course of the lug was directed towards the red light of the cení or pier. When they were approaching the bridge the usual signals were given for opening the draw, and iliey were promptly obeyed. The tug then directed her course to the eastern opening, steeling for the middle of the opening. The sow followed straight after the tug, and when the latter straight-rued out for the draw the schooner did so too. The tug entered ¡.lie draw about the middle of rhe opening, passed between the center pier and the easterly fender, and went through. The, schooner followed in her wake, said entered between the fonder and the center pier, and - proceeded some feet within the center pier when she was found about to strike the fender almost bows on. This must have occurred suddenly and nwwpvkcilly. Tier maie. whoso bearing and intelligence produced a most favorable impression on tbe court, was on the lookout at her bow, mid up to that, moment he saw nothing indicative of disaster. Just as soon as he saw ibis, and he saw it when he had just passed (he red light abreast of Use middle pier, he promptly called out to the helmsman, “Starboard!’5 and instantly, “Hard a1'larboard!” This was- the fact of collision, 'What occasioned it? Not the want of length of the fenders, for the schooner was between the fender and the center pier. Not the obliquity of the current or her speed, for the tug had passed safely through the same current, and at the same speed. Not the want
It is ordered, that the libels against the tug be dismissed; that the libel against the bridge be dismissed; that it be referred to E. M. Seabrook, Esq., to take testimony as to the damages accruing to the bridge by reason of the collision, and that he report the same.