98 F. 138 | 1st Cir. | 1899
This is a case of a collision occurring between 3 and 4 o’clock on the morning of October 28, 1895, between the schooner Samuel Dillaway, bound from Bath, Me., for a southern coal port, and the tug C. B. Sanford, having in tow three coal barges, bound from Boston for Hoboken. All the vessels were light. The collision occurred between Cape Cod and Nauset lights. There was no difficulty arising from the condition of the atmosphere, and whatever issues were at any time made with reference to the condition of the lights of the various vessels have disappeared from the case. The wind was strong, blowing about 15 miles an hour, and variable over three or four points of the compass between south and southwest. The tow was in a common form on the New England coast,—
The appellant made a question at the hearing before us, based on the theory that the libel filed by the owners- of the schooner was strictly a cross libel, involving tlie same issues as though filed against: the Chemung or the tug, one of them alone or both jointly; but no assignment of error raised any question of that nature. If it had been otherwise, the proposition would have been futile, because the libel in behalf of the owners of the schooner was filed against the appellant for a marine tort, committed by its agents, wlrether they were the officers and crew of the tug or the officers and crew of the barge Chemung, or both sets of officers and crew jointly; and, there having been no application by the owner of tlie tug and barge for a limitation of liability, the proceeding under the second libel was strictly in personam.
The case in behalf of the appellant is slated in its libel as follows:
‘‘Tlie weather was clear and bright. The wind was moderate. Proper lights were set and burning upon the said tug and all of said barges. A competent man was on lookout, and one at the wheel. While so proceeding, and using every required and possible precaution to see vessels and avoid collision, the green light of the said schooner Samuel Dillaway was seen on the port about two points aft of the beam of tlie said towboat O. B. Sanford. As the said towboat was too far ahead to starboard her wheel and go across the stem of said schooner, she was slowed down, and her course changed to starboard, to allow said schooner sufficient room to pass. But the said schooner, instead of continuing upon her course, as she ought to have done, and might easily have done, either changed her course, or so'carelessly maneuvered, tliai she struck the said barge Chemung on the port side abreast the mizzenmast. The said towboat and barges were proceeding at a rate of not over lour miles an hour at the lime that the light of said schooner was lirst seen. s ⅛ ⅞
“All said loss and damage was caused solely by the negligence and fault of said schooner, and those in charge of her said navigation, in not avoiding and keeping out of the way of said barge, as she ought to and might easily have done, and such collision was not in any manner or degree caused or contributed to by tlie said barge or the said towboat, or those in charge of her navigation.”
The case in behalf of the schooner, as stated in her answer to the libel against her, is as follows:
“Tlxo schooner Samuel Dillaway is a three-masted schooner. At the time of tlie collision she was bound from Bath, Me., light, to some southern coal port to seek a cargo. The weather was clear. The wind was strong and variable from south-southwest to south. For from twenty minutes to half an hour preceding- the collision the claimant, who was then master of the schooner Samuel Dillaway, the second mate of the schooner, and two compe*140 tent seamen were constantly on deck, one of said seamen being stationed forward, on tbe lookout, and tbe other at tbe wheel of tbe schooner. The schooner was closehauled on the port tack, heading- about west-southwest. While thus proceeding, the two masthead lights of the towboat, which after-wards proved to be the O. B. Sanford, were seen by those on the schooner, about four points on the starboard bow of the schooner, and later the red light of the said towboat was also seen. The lights of the several barges in tow of the Sanford were also seen and noted by those on the schooner. Said schooner continued closehauled on the port tack, as she had been from the time when any lights of the Sanford had first become visible and been seen. But the towboat O. B. Sanford, with the barges in tow, continued to approach the sehooner, finally showing her green light for a few moments to those on the schooner in addition to her red light, until the said towboat was within about one-eighth of a mile away, and on the starboard bow of the schooner, when the towboat shut out her green light, and showed her red light alone to those on the schooner. It then became evident to those on the schooner that it was the intention of those on the towboat to attempt to go across, and to attempt to tow the barges across the bow of the sehooner; and it being then entirely apparent to those. on the schooner that, if the schooner continued upon the course upon which she was then sailing, she would inevitably collide with the towboat or some of the barges, the claimant, master of the sehooner, gave the requisite orders, and attempted to tack the schooner. The sehooner, however, owihg to the variable wind and to the sea, misstayed, fell off again, and struck the barge Chemung, sustaining some injury. After remaining in contact with the Chemung for some minutes, the schooner got clear of her, and the towboat Sanford, still proceeding on her course, towed the barge Chenango against the starboard quarter of the schooner, causing further injury to the schooner.”
In addition to these statements of the positions of the various parties, we think but little need be said as to the facts. It is maintained by the schooner that, with the wind as it was, — she being closehauled and the tug and tow running south, — it was mathematically impossible for her light to have been seen two points abaft of the beam of the tug; but, as it is conceded by the appellant that the schooner was not an overtaking vessel, within article 20 of the international rules of 1885, which were in force at the time of this collision, this question involves nothing of importance, and it follows that article 17 and article 18 of those regulations apply. Therefore we can safely proceed on the theory that it was the duty of the tug and tow to keep out of the way of the schooner, and that the tug, if the vessels were so approaching at any time as to involve risk of collision, was bound to slacken her speed, or stop and reverse, if necessary, and to take all other precautions which might be suitable to avoid the danger arising from the proximity of the various vessels.
There was much discussion at the bar with reference to the relative speed of the two vessels, the solution of which would not aid us without the determination of other elements; but we reach a satisfactory conclusion easily without concerning ourselves in reference to this topic. There is also a dispute whether or not, at any time, the Dilla-way saw the green light of the tug, which is of no consequence except as bearing on the question of the vigilance of those who were manning the deck of the sehooner, which we will refer to in its proper place.
With reference to the manner in which the tug, with this long tow, was bound to perform her duty in-avoiding the schooner, .and with reference, also, to the degree of vigilance and preparation which she
We must notice the fact that the proofs in behalf of the tug do not harmonize with the. allegations of her libel. In particular, as we have said, the latter states that when she sighted the schooner the tug was too far ahead to go across the stern of the Dillaway. On the other hand, Capt. Lewis, of the tug, testifies th'at after he had sighted the schooner he kept his course for about ten minutes, and then-slowed down to half speed, so as to give the schooner a chance to go across his bow; that then the schooner bore about a point forward of his beam; that, after remaining slowed down for about five minutes, he saw both lights oí the schooner about one-eighth of a mile away, and three points forward of his beam; and that when he saw both lights he put his helm hard a-port, and thus swung to the starboard, inshore. He maintains that half speed entirely stopped the progress of the tug, which is not unreasonable, in view of the strong south wind in her teeth. The tug’s engineer testifies that she had been running at about 90 revolutions — which was full speed— until half past 3, when she slowed down to about 40, and that after that she was just about holding her own, thus confirming the testimony of Capt. Lewis on this point. This, however, does not improve the condition of the tug, because, during the 10 minutes after sighting the schooner, in which the tug kept her course and speed, she had sufficient time to starboard her helm, and thus to sheer off, and to run under the stern of the schooner by an ample margin. It was suggested in argument that it was impossible for Capt. Lewis, on first sighting the schooner, to determine whether her course was towards or away from the tow and tug; but he testifies that when he saw the Dillaway he supposed that she was steering about southwest by west, which was on a line rapidly converging with that of his own
Capt. Lewis also maintains that after he slowed down he gave the schooner ample room to pass ahead if she had kept her course; testifying that, if she had done so, she would have gone across his bow very readily. On the other hand, Capt. Smith, of the Dillaway, testifies that at first he did not apprehend a collision, but that when he was within about an eighth of a mile of the tug he formed the judgment at the time that, if his vessel should keep her course, she would strike the tug amidships, and that the only thing for him to do was to tack ship, and try to get out of the way. The testimony of Capt. Lewis, while apparently not intended to falsify, was wavering and contradictory, not only on this point, but on many of the more substantial questions in the case. Not only this, but the record shows that the Dillaway was under proper discipline, her deck properly manned, and with a proper lookout; so that, for the reasons we have already given, we must accept the statements from the schooner as against those from the Sanford, where they conflict and cannot be reconciled, with reference to all matters of bearings, courses, .and proximity.
In only two particulars does there arise any question with reference to the aspects of the proofs offered by the Dillaway. One of the witnesses testifies that Capt. Smith went below after sighting the tug and before the collision, but Capt. Smith directly contradicts this; and it is not improbable that the witness was mistaken, as Capt. Smith was not actively on the watch, the second mate keeping the deck, so that the master was going to and from the cabin, as circumstances required. He had given orders to be called whenever any lights were seen, or any other emergency demanded him. Again, the witnesses for the Dillaway testify to having seen the green light of the tug shortly before the collision. This fact is not of importance in the case, except as it bears on the vigilance of the schooner. There is no evidence that the tug purposely starboarded so as to expose her green light; but, as the schooner was bearing well on the bow of the tug shortly before the collision, and as the tug had mainly, if not wholly, lost steerageway, so that she might have swung a point or two back and forth with the strong but variable southerly wind, and as, also, — which is not an unusual fact, — -the lights of the tug crossed at least half a point, it is not impossible that the schooner might lihve seen her green light, even though she did not purposely starboard her helm. Therefore the schooner was not only properly manned, with a proper lookout, but her testimony is consistent with itself throughout, and it must be accepted as against that of the tug. It follows we cannot find that the evidence of Capt. Smith that, at the time lie tacked, his own judgment was that the vessels would have collided if he had kept his course, is overborne by any proofs in the record.
In RTo. 269 the decree of the district court is affirmed, and the costs of appeal are awarded to the appellees. In 2STo. 270 the decree of the district court is affirmed, with interest, and the costs of appeal are awarded to the appellees.