116 F. 900 | E.D. Pa. | 1902
These are cross libels growing out of a collision on the Delaware river about 4 o’clock in the morning of December 31, 1899. The Landskrona is a British bark of 1,330 tons register, and at the time of the collision was loaded with a cargo of coal, and was drawing more than 20 feet. She was lying at anchor on the anchorage ground near Gloucester, not far below the port of Philadelphia. She had been towed to the ground about noon on December 30th and was to sail in a short time from that point for Cape Town, South Africa. Her crew had not yet been engaged, however, and no one was on board except an elderly man, who had been in charge of her for a fortnight as watchman or ship-keeper. The night was dark and very cold, but there was no fog or mist, and lights could be easily seen. The tide was ebb, and the wind was blowing briskly from the west or northwest, causing the bark to
After a study of the usually conflicting testimony, I have come to the conclusion that both vessels were at fault. I am satisfied that the Banan had no lookout forward for at least 10 or 15 minutes before the collision took place; and, when it is considered that a few yards’ further alteration of the vessel’s course would have probably carried her clear, I think it follows with reasonable certainty that the absence of the lookout contributed to the injury; at all events, I think it is impossible to say that the absence of the lookout did not thus contribute, and it is the burden of showing his absence to have been harmless that must be borne by a steamship that does not station a lookout at the proper point forward. The Banan being at fault, therefore, in this respect, and the Landskrona, moreover, having been at anchor, the presumption of innocence is in favor of the bark, and can only be overcome by clear proof of a contributory fault. To use the language of Mr. Justice Brown in The Oregon, 158 U. S. 186, 197, 15 Sup. Ct. 804, 809, 39 L. Ed. 943:
“As we had occasion to remark in The City of New York, 147 TJ. S. 72, 85,. 13 Sup. Ct. 211, 37 L. Ed. 84, where one vessel, clearly shown to he at fault adequate in itself to account for the collision, seeks to impugn the management of the other vessel, there is a presumption in favor of the latter, which can only he rehutted by clear proof of a contributing fault The principle is peculiarly applicable in the case of a vessel at anchor, since there is not only a presumption in her favor by the fact of her being at anchor, but a presumption of fault on the part of the other vessel, which shifts the burden of proof upon the latter.”
In spite of the presumption, however, the decided weight of the evidence has convinced me that the Landskrona was anchored either on the ranges, or so near as to be a dangerous obstruction to vessels following the channel at night. To suppose that the Banan was over to the eastward on the anchorage ground, where she had no right to be, is to reject all her testimony, some of which is apparently without bias, and also to do violence to probability. Certainly, the course which she would probably follow with solicitude on a dark night would be the channel as pointed out by the range lights, and this would carry her clear of the anchorage ground. Moreover, the explanation which she offers of the collision, namely, that the -Lands-krona’s anchor light was not burning, having perhaps been temporarily extinguished by the wind,—an accident that was feared by the shipkeeper,—is more satisfactory than the explanation offered by the Landskrona, namely, that the anchor light was mistaken by the pilot and wheelsman of the Banan for one of the range lights, and a wrong course was thus adopted. This explanation seems to me to be fatal,, for, if the anchor light was so nearly in line with the range lights as-to mislead the pilot and the wheelsman of the Banan, I think this-
I may add that I have paid no attention to the ex parte statements of the seaman Mylund.
In my opinion, the damages should be divided, and a decree to that effect may be entered.
