67 F. 269 | E.D. Pa. | 1895
On the night of November 11, 1892, as the sloop passed down the Delaware river, near Chester, she was run into by the schooner, then in charge of the tug, and with her cargo was sunk. The night was clear, without moon, and the tide ebb.
The material questions raised are: Were the sloop’s lights up? and was either the schooner or tug in fault? As respects the first, the testimony is conflicting, and irreconcilable. After a careful examination of it, my judgment is against the sloop. The clear weight of the testimony justifies a conclusion that her lights were not up.
As respects the second question, I have found more difficulty. The sloop’s negligence did not of course, justify the collision if it could be avoided by the exercise of proper care. The libelant says it could have been avoided, and charges the respondent with carelessness which tended necessarily and directly to produce it As respects the schooner the charge is not sustained. She appears to have been blameless. She had a proper lookout and followed the tug as closely as she could. It is far from clear, if it is even probable, that dropping her anchor, or cutting her hawser earlier would have been serviceable. I believe, with her mate Cunley, that neither would. But if a different conclusion were justifiable she could not be blamed for the omission. Being placed in a position of danger, without fault of her own, the sloop could not complain that she failed in the consequent excitement to select the best means of escape. As regards the tug the case is not so clear. She is charged with negligence in failing to maintain a proper lookout, and as a consequence in approaching too near the sloop. Finding a sufficient cause for the collision in the latter’s neglect of duty, it should be ascribed to this alone, unless other contributory negligence is proved. If the charge against the tug
“The evidence discloses tlie vital fact that the tugboat had no proper lookout. Tt is true the mate declared that lie was keeping a lookout in the pilot house, but that is not a compliance with the duty imposed on the tug. The officer in charge of the navigation of the vessel is not a competent lookout, nor is the pilot house the idace where the lookout should be stationed. The lookout should be charged with no other duty, and in that, duty he should be actually vigilant, and continuously employed without having his attention distracted by anything else.”
In this view of the law the conclusion is unavoidable that the tug was guilty of carelessness, which directly tended to the collision—as directly as did that of the sloop; and in the absence of satisfactory proof that it did not so contribute, it is reasonable to infer that it did; indeed the inference cannot be avoided. Of course it may be repelled by proof that it did not. On behalf of the tug it is urged that the sloop could not have been seen earlier than she was by the most vigilant lookout properly stationed. If the testimony proves this, it follows that the failure to maintain a lookout did not contribute to the accident. I do not think, however, that tire evidence does prove it. The master says she could not have been seen earlier. But he does not know. Had lie been differently stationed and devoting his attention exclusively to ascertaining this fact he could tell us. But stationed in the pilot house directly behind the mast, in charge of the wheel, and engaged in “jabbering” as his mate says, who was “keeping him company,” his statement that the sloop could not have been seen earlier is unreliable. Besides he is not an impartial witness. The mate Jefferson says he was not looking out for objects ahead, but was engaged in conversation with the master and was thus in
A decree must be entered sustaining the libel for half damages and half costs.