50 F. 331 | 2d Cir. | 1892
On the morning of December 9, 1887, a collision occurred in Long Island sound, a few miles to the westward of Faulkner’s island light, between the libelant’s schooner, Helen Augusta, and the brig Havilah. The schooner was sailing before the collision, by the wind, on a course about east by north on the port tack, the wind being about north-northeast; the brig was sailing west-half-north, having the wind free. The vessels sighted each other just at the break of dawn, the breeze was moderate, the weather clear and good for seeing lights, and both vessels had their regulation lights burning. The brig struck the schooner on the starboard side, a little forward of the mainmast, and she went down soon after. The district court held the brig solely in fault for the collision. This decision was affirmed in the circuit court, and the claimants have appealed to this court.
We have reached the same conclusion as the district judge on this branch of the case, but the facts are so elaborately and carefully discussed in his opinion that it is unnecessary to rehearse them. As the brig was sailing free, and the schooner closehauled on the wind, the former is to be held responsible unless the collision was brought about by inevitable accidént or by some fault of the schooner. Of inevitable accident, there is no suggestion. It is claimed, however, that the schooner changed her course to the northward and thus misled those who were in charge of the navigation of the Ha.vilah, and that this change was made, not in extremis, when collision was inevitable, but was itself the cause of thecollision, which but for such change would not have happened. The witnesses for the schooner insist that no such change was made; that they saw the brig’s red light for several minutes before the collision off the schooner’s starboard bow, and apprehended no collision until the brig came near, supposing the latter -would avoid her. If the course of the schooner and the bearing of the brig were as testified to by libelant’s witnesses, the brig could at no time have seen the schooner’s red light, and, as a persistent green light would have indicated a sailing vessel hauled on the wind, it would be the brig’s duty, to avoid her. This testimony is flatly contradicted by- the second mate and the lookout of the brig,, who insist that they first saw the red light of the schooner, and then, after a brief interval when no lights were seen, her green one.
There remains a question as to what is the measure of damage. There was a wide difference between the estimates of the witnesses who testified before the commissioner to the schooner’s value before the collision. The weight of unbiased evidence, however, is strongly in support of his finding that her value then was §3,800. Her cargo was coal, worth about $1,200. She w'as 22 years old, and sank 2 minutes after collision, in the open sound in 100 feet of water. The libel alleges that she became a total loss. After the decision of the district judge, hearings began before a commissioner to take proof of damages, and proceeded till eight witnesses had been examined by the libelant, touching the value of the vessel before collision, on the theory of a total loss. Then, in April, 1888, four months after collision, libelants finally decided to raise her; an operation, which as his counsel testified, “involved much difficulty and hazard.” After one wrecking, company had declined to undertake it, they employed another, at an estimated price of SI ,800 to $2,000, to do the work. Thereupon, but without giving any information as to such estimate or refusal, libelants’ counsel, at one of the hearings before the commissioner, asked claimants’ counsel to stipulate that the vessel was a total loss, which the latter declined to do. The vessel was raised by libelants at a cost of $1,900. Her value when raised was from $1,100 to $1,200, and such of the cargo as was raised sold in its damaged condition for $275. Libel-ants thereupon placed the vessel in the hands of a ship-builder near New Haven, without limit as to price, to be repaired and put in as good condition as she was before. The repairs cost $6,800. They claimed the cost of raising and of the repairs, with freight, demurrage, value of cargo, (less $275,) and personal effects, with interest on the several items. The commissioner allowed their claim, except that he reduced the repairs to $3,850, the value of the vessel before collision. The district court disallowed the demurrage, and adopted the commissioner’s recommendatioijs as to the other items. Claimants insist that they should be held only for the value of schooner, cargo, freight, and personal effects before collision. We think that is the correct measure of damage. It is no doubt true that the mere /act of sinking is not sufficient to warrant a finding that vessel or cargo is a total loss, (The Baltimore, 8 Wall. 377; The Bristol, 10 Blatchf. 537; The Thomas P. Way,