Nos. 858, 859 | 1st Cir. | Dec 28, 1910
Lead Opinion
This is a case of collision, occurring at about half past 1 o’clock on the morning of March 22, 1906, between the schooner Eejok and the schooner Gov. Ames. There were cross-libels. The Eejok was three-masted, loaded with lumber, on a voyage from Brunswick, Ga., to New York City. Her libel alleges that she was approaching Sandy Hook, was steering northwest, with the wind “about S. S. W.,” that she was sailing free on the port tack, and proceeding at a rate of about five knots. It also alleges that her lookout saw and reported the green light of the Gov. Ames on her port bow, and that her master was at the wheel, and that he was of the opinion that the Gov. Ames had the right of way, and he changed his course to port until the green light of the Gov. Ames was seen to open up on the starboard bow of the Eejok, when he steadied his vessel so that the two would pass green to green. It also says the weather was clear and starlight. It maintains that the Gov. Ames suddenly changed her course, shutting out her green light and showing her red light a little on the starboard bow of the Eejok; that thereupon the master of the Eejok immediately put his wheel hard up to avoid a collision, if possible, and the Eejok swung to starboard. Nevertheless, it says the time and distance were too short, and the two vessels came together nearly head on. The Eejok still claims that the Gov. Ames was on her starboard tack, running at a high rate of speed, and that it was her duty to hold her course.
The answer of the Gov. Ames denies that she had the right of way. It proceeds that she was a five-masted schooner, and was bound on a voyage from Newport News, Va., to Boston, Mass., with a heavy cargo of coal; that the wind was S. W. by S. and strong; that she was sailing on a course N. E. y2 E., and running about 10 knots; that the wind was about iy2 points on her starboard quarter; that, while thus proceeding, her lookout saw the red sidelight of the Eejok about. 1 y> or 2 points on the starboard bow and from one-half of a mile to-a mile distant; that the Eejok was being overtaken by the Gov. Ames; that, as the Gov. Ames had the wind aft, and also as she was the overtaking vessel, her mate ordered her helm put hard to port, and she at once began to luff; that the Lejok luffed also, so that she showed both her sidelights to the Gov. Ames; that the Gov. Ames continued to luff, but the Eejok also continued to luff, so that the two vessels came into collision.
The cross-libel of the Gov. Ames and the answer of the Eejok thereto left the case substantially the same as the pleadings on the Lejok’s libel, so that they need not be restated.
Aside from the above, the facts are detailed fully in the opinion of
The case turns on articles 17, 21, 22, 24, and 27 of the International Rules of July, 1897 (26 Stat. 326, 327 [U. S. Comp. St. 1901, pp. 2869-2871]), as follows:
“Art. 17. When two sailing vessels are approaching one another, so as to involve risk of collision, one of them shall keep out of the way of the other, as follows, namely:
• “(a) A vessel which is running free shall keep out of the way of a vessel which is close-hauled.
“(b) A vessel which is close-hauled on the port tack shall keep out of the way of a vessel which is close-hauled on the starboard tack.
“(e) When both are running free, with the wind on different sides, the vessel which has the wind on the port side shall keep out of the way of the other.
“(d) When both are running free, with the wind on the same side, the vessel which is to the windward shall keep out of the way of the vessel which 'is to leeward.
“(e) A vessel which has the wind aft shall keep out of the way of the other •vessel.”
“Art. 21. Where, by any of these rules, one of two vessels is to keep out of the way the other shall keep her course and speed.
“Art. 22. .Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other.”
“Art. 24. Notwithstanding anything contained in these, rules every vessel, overtaking any other, shall keep out of the way of the overtaken vessel.
“Every vessel coming up with another vessel from any direction more than two points abaft her beam, that is, in such a position, with reference to the vessel which she is overtaking, that at night she would be unable to see either of that vessel’s side lights, shall be deemed to be an overtaking vessel; and no subsequent alteration of the bearing between the two vessels shall make the overtaking vessel a crossing vessel within the meaning of these rules, or relieve her of the duty of keeping clear of the overtaken vessel until she is finally past and clear.”
“Art. 27. In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.”
We do not regard the Gov. Ames as the overtaking vessel within any reasonable construction of article 24, and therefore drop that proposition from further consideration.
With reference to article 27, there is much in the case to suggest very strongly that, under the circumstances, both vessels should have regarded it. Apparently there was no occasion for the collision. There is much to suggest that, with regard to the application of article 17, there was a misapprehension on the part of both vessels as to the position and course of the other, and also to suggest that each vessel should have understood that there was a liability to such misunderstanding, and should have proceeded accordingly with a caution which would have avoided a collision, and therefore that both vessels
The learned judge of the District Court found that the Gov. Ames had the wind on her starboard quarter within three points from directly aft, and that she therefore had the “wind aft” in accordance with paragraph “e” of article 17. He was careful to use the word “within.” With the wind as fixed by the Uejok, the maximum was 2J/2 points, and as fixed by the Gov. Ames iy¿ points. Therefore the learned judge stated a very considerable margin. We are safe to leave it 21/2 points.
The Theodore H. Rand points out specifically the difficulty involved under somewhat similar circumstances in the attempt of one sailing vessel to ascertain the course and position of another sailing vessel between 4 and 5 o’clock on a February morning. Indeed, it must be regarded as a proposition, favored by the courts, and fortified by marine experience, that, unless some extraordinary circumstances produce special proofs, the course of a vessel in the night is to be determined chiefly by the testimony of those aboard her. Undoubtedly, the circumstances here require us to accept the evidence of the master and crew of each vessel as to her course and position, and as to the direction of the wind by which her movements were guided. Therefore we accept the testimony from each as to her position, resulting in the fact that we find that the Gov. Ames had the “wind aft,” if 2/-> points from directly aft is within the meaning of the statute, and more especially so if the wind was only 1 y2 points off, as stated in her answer.
With reference to the interpretation to be given the words “wind aft,” the only decisions of importance are The Spring, U- R. 1 A. & F. 99 (18(56), decided by Dr. Uushington under the Regulations of 18(53, and The Privateer, 9 U. R. (Irish) 105 (1881). The Spring is directly in point, and was decided in the High Court of Admiralty, over which Dr. Uushington presided, and from which appeal then lay only to the Privy Council. The case was not appealed, and has never been overruled or judicially questioned in England. The Uejok says it was doubted in Marsden on Collisions (oth Ed.) 385, but such is not the fact. In discussing article 17, at page 383 and sequence, Marsden speaks in what might be said to be a general way of the unsatisfactory forms of expression found therein, and he states that the classification of sailing ships in that article occasions some difficulty; but he does not dwell at all on the words “wind aft.” On, the other hand," he states at pages 385 and 391 that in The Spring the Constantine, which was the colliding vessel, had the wind from two to four points from dead aft, and was held to have had the “wind aft” within the meaning of article 12 of the Regulations of 1863. There is no way of discovering that any effect is to be given those words in the Regulations of 1863 different from the effect to be given-to the Order in Council óf November, 1896, which was under discussion by Marsden, which are
It is claimed, however, by the Lejok that The Spring fails to make any explanation, or any reference to previous authorities. It is true that it states its results as briefly as possible. Yet, at the time of that decision, Dr. Lushington had presided over the High Court of Admiralty .for 26 years. During that period, every case in England in admiralty of any importance had passed under his hand; and he had a right to dispose of a proposition which, in his experience, he had come to regard as beyond question without elaborating in reference thereto. The fact that Dr. Lushington made no discussion strengthens his conclusions rather than weakens them. In applying The Spring it is not to be understood that Dr. Lushington gave absolutely so wide a margin as four points. A study of the case shows that the wind was boisterous, and was fluctuating, at least two points; so that The Spring establishes a margin of at least two points, which is as much as appears in these cases now on appeal.
Stowell was the only admiralty judge of the last century, or the century previous thereto, who ranked Lushington for eminence and experience. When The Spring was decided. Dr. Lushington was 84 years of age, if we have correctly computed. He retained his judgeship so long as he lived, that is, until he was 92. The interesting book entitled “The Builders of Our Law During the Reign of Queen Victoria,” published in 1895, declares that during his whole career he was living up to his time, and was alive to everything that happened, and took as keen an interest in modern science and discoveries as if he had been but 19 instead of 92. His whole life, public and domestic, shows that he always remained with a sane mind in a sane body, so that at the time The Spring was decided there had been no failure in any of his faculties. The same author declares that, in the admiralty court; his consummate ability and address especially signalized itself in a long series of admirable judgments, which are described as masterpieces of judicial wisdom and legal learning. Without elaborating further in this direction, the general statement must be accepted, that he, as well as Lord Stowell, contributed in a very large degree to laying the foundations of the admiralty law in many respects, as now applied not only in England but in the United States. From every point of view, so long as The Spring remains, as it has remained, not reversed by an appellate tribunal, it represents the practical law. i ’ England on the point which we are discussing. Therefore it must be accepted in this country until the Supreme Court speaks to the contrary, if it ever does.
'This is not only on account of the weight ordinarily given by our courts to adjudication? in admiralty of the higher English courts, but
“This is not giving to the statutes of any nation extraterritorial effect. It is not treating them as general maritime laws, but it is recognition of the historical fact lhat by common consent of mankind these rules have been acquiesced in as of general obligation.”
In this connection, it is of much importance and weight that Mars-den’s Collisions at Sea (5th Ed. 1904) 320, adopts as a part of its text expressions of Judge Benedict as follows :
“The paramount importance of having international rules, which are intended to become part of the laws of nations, understood alike by all .maritime powers, is manifest; and the adoption of any reasonable construction of them by the maritime powers named affords sufficient ground for the adoption of a similar construction of our statute by the courts of this country.”
The Privateer, already cited, was decided on appeal by the highest judicial tribunal in Ireland; the Master of the Rolls and one of the Lord Justices of Appéal sitting. The decisions of the Irish courts, although entitled to respect, are in no way binding on the English judges. Stockley v. Parsons, 45 Ch. Div. (1890) 51, 62; Annual Practice (1903) vol. 2, 347. Nevertheless, the reasoning of the two opinions delivered in The Privateer has clear earmarks of experience, sound consideration, and knowledge of maritime law on the part of those who delivered them. They have been criticised with reference to points not involved here; hut the decisions that criticised them are themselves subject to criticism, and have not yet been fully established. We do not, however, need to rely on The Privateer, as we think we have already made clear. •
We should make reference to essays on the law of maritime navigation coming from distinguished French and German sources, cited in behalf of the owner of the cargo which was lost with the Lejok. It is sufficient to say that these are not judicial determinations like The' Spring, and therefore are not entitled to any particular judicial obeisance, and that they are well balanced by The Privateer; but the most emphatic thing is that, for reasons easily understood, the federal courts would be exceedingly embarrassed by coming in conflict on questions
We have endeavored to get some light on the case from the historical view, but we have not gained anything of consequence in that way.
In Flanders’ Maritime Law (1852) § 369, the rule is given the same as the present statutory rule; but the expression is “a vessel going before the wind.” That expression, of course, is flexible and better fits the contention of the Gov. Ames. The expression in 3 Kent, 230, is also “before or with the wind.” St. John v. Paine, 10 How. 257, 581, 13 L. Ed. 537" court="SCOTUS" date_filed="1851-02-13" href="https://app.midpage.ai/document/st-john-v-paine-86622?utm_source=webapp" opinion_id="86622">13 L. Ed. 537 (1850), used the same expression, “before or with the wind.” The presumption is against a disturbance of existing practices by the statutory rules of navigation. The embarrassments imposed on those responsible for the navigation of particular vessels is so much increased by changes in the law that this presumption is strongly supported by the good sense of the thing. However, all efforts to reach a conclusion by this method of examining the question have not satisfied us, and we are content to stand on the authorities we have cited.
We now come to the special case which the Lejok makes against the Gov. Ames to the effect that, even if the Lejok was in error, the Gov. Ames was also in fault. The proposition is stated to us by the Lejok in very general terms: “Lack of proper lookout”; “lack of a competent officer in charge of the deck”; lack of a competent man at the wheel”; “in not standing by.” The last — that is, the allegation that the Gov. Ames did not stand by as the statute requires — we are content to leave on the statement of facts and reasoning of the learned district judge in reference thereto. As to the other points, the main burden of the argument in behalf of the Lejok we have already considered, namely, that the Gov. Ames did not have the wind aft; and very little is given us on the points- to which we have just referred. It might well be so, because those touch a question of lookout; and the question of lookout on these proceedings is not a primary question. There is no such question here in the ordinary understanding of that topic. It comes in only incidentally.
- On the mere question of lookout in the ordinary sense, a strong case might appear against the Gov. Ames. Although the night was clear, so that the Gov. Ames’ light was seen at least two miles from the Lejok, no light was seen by the Gov. Ames until the Lejok was within a mile, or three-quarters or one-half of a mile, as put differently several times. The fact is that the mate of the Gov. Ames who gave the orders for her navigation apparently saw no light from the Lejok until the Lejok was close aboard. Although he declares at one place that he saw the red light of the Lejok three-quarters of a mile away, yet this is inconsistent, because he says at another place that, when he
This disposes of the merits of the case, but there are some minor questions brought to our attention. The District Court, besides adjudging against the Lejok the costs of repairs, gave the Gov. Ames an allowance for 31 days’ detention at the rate of freight fixed in her charter party. The collision occurred during her voyage, and she was
In the taxation of costs the court allowed $393.75, the amount paid by the Gov. Ames to the surety on the stipulation for her discharge from the libel. We are unable to perceive why the Lejok should be taxed for this, any more than for solicitors’ fees or counsel fees, or for many other disbursements which defenders in litigation are accustomed to make, but which never have been recognized as constituting taxable costs. In this particular case, a surety company joined in the stipulation; but this constitutes no essential difference between this and the ordinary stipulation entered into by individuals. Commissions on disbursements, commissions for collection, and even commissions to sureties in foreign ports releasing cargoes and vessels, are often allowed in adjusting general average, and even in adjusting particular average; but there is no practice recognizing them as elements of costs to be taxed in litigation. This claim is not supported by any order of court, or by any statute. It is ordinarily a mere matter of choice on-the part of the owner of a vessel whether he will bond her, allow her to remain in the custody of the court, or ask to have her sold. In Ex parte Hughes, 114 U.S. 548" court="SCOTUS" date_filed="1885-05-04" href="https://app.midpage.ai/document/ex-parte-hughes-91402?utm_source=webapp" opinion_id="91402">114 U. S. 548, 5 Sup. Ct. 1008, 29 L. Ed. 281" court="SCOTUS" date_filed="1885-05-04" href="https://app.midpage.ai/document/ex-parte-hughes-91402?utm_source=webapp" opinion_id="91402">29 L. Ed. 281, an allowance claimed for the printing of briefs was denied, but the printing of what was, in the nature of pleadings, a part of the record, was allowed. Both rested on the fact of risage, which the court saw no justification in disturbing; but no usage is available here.
Many citations have been made, but none of them are authoritative with us except Lee Co. v. Penberthy Co., 109 F. 964" court="6th Cir." date_filed="1901-06-15" href="https://app.midpage.ai/document/lee-injector-mfg-co-v-penberthy-injector-co-8744822?utm_source=webapp" opinion_id="8744822">109 Fed. 964, 48 C. C. A. 760, decided by the Circuit Court of Appeals for the Sixth Circuit, on June 15, 1901. There the amount paid a surety company for furnishing an appeal bond was stricken out of the 'taxation. It is true that the Circuit Court of Appeals for the Ninth Circuit, in Jacobsen v. Expedition Co., 112 F. 73" court="9th Cir." date_filed="1901-10-07" href="https://app.midpage.ai/document/jacobsen-v-lewis-klondike-expedition-co-8745869?utm_source=webapp" opinion_id="8745869">112 Fed. 73, 80, 50 C. C. A. 121, decided October 7, 1901, allowed the cost of giving security in damages by a respondent who filed a- cross-libel. In that case the security was required by Ad
The Lejok raises another question of costs, based on the fact that some witnesses, if not all of them, were allowed in behalf of the Gov. Ames travel for distances beyond the extreme limits to which subpoenas can run. We understand that this relates to the cross-libel in behalf of the Gov. Ames. On the one side, we are told that the District Court had no power to award travel for such extended mileages, and, on the other, that we have no power on appeal over this question. It is time we should cease to hear from each of these propositions. The City of Augusta, 80 F. 297" court="1st Cir." date_filed="1897-04-15" href="https://app.midpage.ai/document/handy-v-adams-8858684?utm_source=webapp" opinion_id="8858684">80 Fed. 297, 25 C. C. A. 430. The Gov. Ames also falls back on an incorrect statement with reference to the discretion of courts in equity and admiralty in the allowance of costs. Before the act of 1853, there was such a discretion in the broad sense of the word, even an allowance of counsel fees having been sustained by the Supreme Court; but, since that statute, the settled practice is to limit this discretion to an apportionment between the parties of costs legally taxed.
■ We have no specific ruling of the District Court on the questions made here; nothing except a brief memorandum that, on appeal to the court, the clerk’s taxation was upheld. Among other allowances for mileage was that for one witness, Lima, 7,382 miles, from the Cape DeVerde Islands. We have in the record the certificate of witnesses which is erroneous in form, although customarily used, and sufficient where there is no controversy. It states the “place from which each came to attend trial,” meaning by “each” each witness; while section 848 of the Revised Statutes allows mileage only from the place of residence to the place of trial. Every witness, so far as we have examined, in the opening of his testimony, stated the place of his residence, which fails to conform in very substantial extent to this certificate. P'or example, Lima, whose travel is taxed from the Cape De Verde Islands, testified that he lived in New Bedford. As to him, there is nothing else in the record which the court can recognize as proof, because, on a contest, we must reject the certificate signed hv the witnesses in its existing form. It is true there is an affidavit from Davis, one of the owners of the Gov. Ames, as to Lima’s residence; but that is based entirely on information. As to the other witnesses whose sworn residences fail to conform to the certificate, there is not even any affidavit. It is necessary, therefore, that the mileage allowed witnesses be made to conform to legal proofs.
We -will observe further with reference to Lima that the mileage
We find with the papers what appears to be an attempt to raise an objection on the part of the Lejok to a ruling of the court with regard to the admission or nonadmission of evidence. It is not, however, put in such form as to be easily comprehended; neither do we find it covered by any assignment of errors. Therefore we pass it by. ‘
In No. 858, Smith v. Davis, The Gov. Ames, the decree of the District Court is affirmed, and the appellee recovers his costs of appeal.
In No. 859, Smith et al. v. Davis et al., The Lejok, the decree of the District Court is modified by striking out from the costs the sum of $393.75 for premiums paid, and by a revision, to be made by the District Court, of the taxation of costs for travel of witnesses on behalf of the Gov. Ames; as thus modified, the decree is affirmed with interest. The appellees recover their costs of appeal; and the case is remanded for proceedings accordingly.
LOWELL, Circuit Judge, concurs in the result.
Rehearing
On Petitions for Rehearing.
Before COLT and PUTNAM, Circuit Judges.
These cases were very elaborately argued, and received a great deal of consideration from the court, and a careful observance of all the rights of all the parties, and yet both parties have filed petitions for rehearing. Under the special circumstances referred to, and because these petitions particularly illustrate the_ propriety of calling attention to the proper rules in reference to petitions for rehearings, we quote Public Schools v. Walker, 9 Wall. 603, 604, 19 L. Ed. 650, as follows:
“Where the court does not on its own motion order a rehearing, it will be proper for counsel to submit without argument, as has been done in the present instance, a brief written or printed petition or suggestion of the*51 point or points thought important, if. upon such petition or suggestion, any judge who concurred in the decision thinks proper to move for a rehearing, the motion will be considered. If not so moved, the rehearing will be denied as of course.”
What are called here petitions for rehearing contain the arguments which might be expected after a rehearing had been granted. They consist largely of long citations from testimony, which, if at all material, should have been called to the attention of the court, with proper references to the record, at the trial of the cases.
The petition in behalf of the Gov. Ames relates particularly, if not entirely, to questions of costs. First, it contains a full rediscussion of a question which we fully considered and settled as to the disallowance of $393.75 paid by the Gov. Ames to a bonding company for the bond releasing the vessel. This discussion might have been very appropriate, if we had ordered a rehearing on this point.
The error which we made in referring the item of $393.75 to the wrong libel would have been at once corrected on the matter being called to our attention informally, and we have accordingly now corrected the same.
In like manner, we might well have been spared the long discussion with reference to the travel of witnesses from foreign parts, in view of the fact that we expressly left that question for revision by the District Court. The substance of all we said was that the allowances, if in dispute, must be fortified by legal proofs, inasmuch as it is easy to see that otherwise great abuse might arise therefrom, especially as such allowances are made only in this circuit.
In like manner, the petition for rehearing in behalf of the Lejok involves even further departures from the rule of Public Schools v. Walker. It contains long extracts from the record, amounting to a reargument of some of the principal points supposed to be involved, which, if submitted to us when the case was argued, might have been of some importance. So far as we have examined them, we can only say that the petition overlooks the fact that in our opinion we followed strictly the pleadings in behalf of the Dejok, and the main propositions submitted in the argument of her counsel of record, whom we were entitled to look to as master of the litigation; and they especially overlook the fact that the fundamental proposition on her behalf, as the case was submitted to us, was that the Gov. Ames was in error as to which vessel was to keep her course.
Ordered that the judgment in No. 858 is modified, by directing that the sum of $393.75 for premiums be stricken out of the costs allowed the Gov. Ames by the District Court, and that so much as relates thereto in the judgment in No. 859 be canceled.
It is further ordered that, inasmuch as on due consideration of the petitions for rehearing filed in No. 858 and No. 859 on February 28, 1911, no judge who united in the judgments desires that either case be reargued, each petition is -dismissed, and in each case mandate will issue forthwith.