15 F. 346 | N.D. Ill. | 1883
This is a libel filed by the owner of the schooner Helen Blood to recover damages caused by a collision of the propeller Badger State with the schooner on the evening of October 9, 1877. A tug took the schooner in tow on that evening to start out on her voyage from Chicago to Muskegon, Michigan, which, after towing her out a short distance from the harbor, let her go, and the schooner was then proceeding to make sail, and while doing so, the hour being about 9 o’clock, the propeller was observed some distance off, making for the harbor of Chicago. There- is some difference of opinion among the witnesses as to the precise course of the two vessels, but it seems sufficient to say that the course of the schooner was about N. by W., and that of the propeller about S. J E. The wind was not far from S. W. The collision took place only a short distance from the harbor, probably less than a mile from the pier. The propeller struck the schooner a glancing blow on the starboard side. The night was not. very dark, and a light properly displayed on a vessel could be seen at a distance of several miles.
The nile of law in a case like this is well settled. It was the duty of the propeller to avoid the schooner, and not having done so, and the collision having taken place, it is incumbent on the propeller to establish by competent evidence that the collision was caused, in whole or in part, by some fault on the part of the schooner.
It is claimed by the defendant that the schooner was in fault in three particulars: that the schooner did not, just before the time of the collision, show a starboard or green light, as the law requires; that she had no sufficient lookout; and that she was not properly
Admitting that this part of the case is not free from difficulty, still I am inclined to think the weight of the evidence is that the green light of the schooner was in its proper place and could have been seen, and the schooner avoided by the propeller, if proper care had been taken. In any event, I think it cannot be asserted, with, any degree of confidence, that the absence of a green light in its proper place contributed to the collision.
It is claimed, on the part of the defense, that there was no sufficient lookout on board of the schooner. It may be admitted that
There is nothing in the other point, that the schooner was not prop^ erly navigated. As already said, it was her duty to keep her course, and the evidence shows that she did; or, if there were any change, it was one that did not cause the collision. Witnesses on board of the schooner state that after the propeller had been observed for some time, and the indications were that proper measures were not being taken to avoid the schooner, a torch was lit and shown from the vessel, in order that additional evidence might be given to the approaching propeller of the danger of collision. Those on board of the schooner declare that this torch was shown in ample time to enable the propeller to avoid the schooner; while those on board of the propeller state that it was shown when the collision was unavoidable. I do not place any great stress upon the exhibition of the torch under the circumstances, because of the conflict of evidence in relation to the time when it was shown. In looking at the whole case, it seems to me that the necessary vigilance required of the propeller at the time and under the circumstances was not shown, and that the collision may be fairly said to have been the consequence of this want of vigilance on her part.
There seems to be no question about the damages, and the decree of the district court is affirmed.