24 F. 296 | U.S. Cir. Ct. | 1885
On the night of July, 23, 1878, the schooner S. B. Hume was on a voyage from New Brunswick to Gloucester, England,
The facts thus found are, in my judgment, decisive of the merits of this case, and it is not, therefore, deemed necessary to burden the record with others which might be deduced from the voluminous evidence, and which, if not of unimportant pertinency, are at least indecisive in their effect. The steamer was in default in pursuing her voyage at a rate of speed clearly excessive, under the circumstances. The night was dark and the atmosphere thick with fog, so that approaching vessels could not see each other until they were in dangerous proximity. Such was the case here, as neither vessel saw the other until they were so close as to render a collision almost unavoidable, although both of them seem to have employed the customary means of giving warning of their approach. With existing conditions, to move under “full speed hells” at the rate of nine or ten miles an hour was manifestly incautious, if not positively perilous; hence a reduction of speed to a moderate rate was a primary and imperative duty on the part of the steamer. If this had been observed, the collision would not have occurred. The master of the steamer himself admits this in his testimony, for ho says that with a speed of five or six miles an hour he could have avoided the collision. But certainly, with a reduced rate of speed, the vessels would have been so far distant from each other that a collision could not have occurred when and as it did. And this fundamental fault of the steamer is not averted or mitigated by anything in the evidence.
In the district court the costs were apportioned, and this is earnestly opposed here. With the conclusion reached by the learned judge of the district court I am entirely satisfied, and T therefore approve and adopt the opinion delivered by him on that question. The dis-allowance of one-half the damages sustained by the schooner is due to her culpable negligence, and is therefore, to that extent, practically an adjudication against her. That she should be subject to the usual consequences of an adverse judgment, in whatever form it may be rendered, seems to me to be consonant to both reason and justice. So it seems to have been regarded in this district for many years, and by the supreme court in The America, 92 U. S. 432.
A decree will therefore be entered in favor of the libelant for $7,684.13, with interest from January 24,1883; the costs to be taxed, apportioned, and paid as decreed by the district court.