Schooner Margaret v. Steamer C. Whiting

3 F. 870 | E.D. Pa. | 1880

Butler, D. J.

This case was heard in May, 1878, by Judge Cadwalader, who then decided that each vessel was in fault, that the damages be equally divided, and the libellant recover full costs. In June following a reargument was ordered, on the application of libellant, who subsequently took further testimony touching tho allegation of fault in his vessel. Excepting this testimony, the case is before me as it was presented on the former hearing. The question of fault in the respondent should not, I think, be regarded as open. No new light has been shed upon it, and the action of the court in opening the case had no reference to it. The application of the libellant was based on the finding against him— that the schooner was in fault; the affidavit shows this, and the additional testimony taken relates exclusively to this point. It is proper to say, however, that after a careful examination of the facts I concur fully in the former jndgment respecting the charge of negligence in the respondent. It was his duty to keep out of the schooner’s way. He saw her light a mile off; he knew the direction of the wind, the width and character of the channel, the course the schooner must necessarily pursue, — backing from side to side, — and with this knowledge he could, and with the exercise of proper vigilance would, have kept out of her way. When her green light was first observed he knew her course was eastward, and that it must soon be reversed. If, instead of heading westward at this time, as he did, he had turned eastward, it is quite' probable the collision would have been avoided. But, whether it would or not, the conclusion that he was'grossly remiss in not observing the schooner’s movements from the time she came in view, and that the collision might have been avoided but for this, is irresistible.

Was the schooner also in fault ? She failed to exhibit a lighted torch, as provided for by section 423é of the Revised Statutes. If this tended to produce the accident she too was in fault, otherwise she was not. The object in requiring the torch, and the only effect of exhibiting it, is to notify approaching vessels that another is in front. If this knowledge is furnished in any other way the office of the torch is performed, and its exhibition is immaterial. Here the respondent was furnished with the knowledge. He saw the green light of the schooner in ample time to enable him to keep off. The exhibition of the torch could not, therefore, have served any useful purpose. It would not have enabled the respondent to determine the schooner’s course, but, by observing the green light, might possibly have left him in doubt on this important subject. ■ The schooner cannot, therefore, be regarded as in fault. This view has the support of all the expert testimony taken, and also of the assessors, whose answers will be filed herewith. A decree will therefore be entered against the respondent for the damages sustained, with costs.