154 F. 348 | 2d Cir. | 1907
The steamer was on a course W. by N. two degrees N. The schooner in charge of her mate, who was at the wheeel, was on the starboard tack, heading nearly northeast, with a very light wind from the eastward. She at no time changed her course. The steamer struck her a right-angled blow. Therefore before collision the steamer must have changed her course nearly four points. The weather was foggy. Fog whistles were sounded by the steamer, and the schooner was working her mechanical fog horn. The District Court held the steamer in fault for going at too great speed in a fog, and in not having sufficient lookouts. She does not contest the correctness of this finding. As was to be expected, the powerful electric lights (masthead and colored) of the steamer were visible to those on the schooner before her own lights could be made out by those on the steamer. Exactly what lights were first seen by the schooner is by no means certain, although both mate and lookout insist that they first saw' the masthead and green light. We find it impossible to reconcile such a statement with the known courses of both vessels, prior to the change of course which the steamer made later, when she made out the presence of the schooner. But, whatever lights were seen, the schooner obeyed the rules in maintaining her course and speed unchanged until the crash came.
The district judge says:
“Tbe difficult question in tbe case is concerning tbe exhibition of an irregular light by tbe schooner. When the steamship’s presence became known to those on the schooner, the mate, who was then in charge and steering her, took the light out of the binnacle and set it on top of the house, where it*350 remained until nearly ⅛⅜ time of tlae collision, when it was put back in the binnacle. The mate explains this by stating that he was afraid of steamers, and always used this precaution. It was very bad practice on his part, ánd, if it had any effect in producing collision, the vessel should be condemned for it. The steamship claims that she supposed that the light was one of an overtaken vessel shown in conformity with article 10 of the sailing rules.”
He excused the schooner (1)'because it was doubtful whether the steamer changed her course, by reason of the misleading light, sufficiently to bring about collision; and (2) because the exhibition of that light was in the extremity of collision.
In the first of these propositions we are unable to concur. There is no testimony and no conceivable reason why the steamer should have changed her course before she saw the schooner’s light. She had laid her compass course at Nantucket lightship for Fire Island lightship, and only the presence of some other vessel to be avoided would have induced a departure from it. The light first seen was a white lighb a little on the port bow. The captain and the second and fourth officers, all on the bridge, so testify. The lookout in the crow’s nest (called by libelants) says that he heard the lookout at the bow report “light on .the port bow,” and soon thereafter he himself saw a white light right ahead. All of these witnesses saw a green light a little later, but the helm had been already ported in the belief that the white light was displayed by an overtaken vessel. One witness onlys the lookout in the bow, also called by libelant, testified that he first saw a green light on the port bow. His evidence is unpersuasive. When confronted with a contradictory statement which he had signed, he sought to explain it away by saying that he was drunk when he signed it. This explanation was disproved by several" persons who were, present at the time. Moreover, he insists that he warned them on the bridge by singing out that “he had better put his helm hard down, otherwise he would go right into the schooner.” If he did see a green light a little on the port bow or about ahead, this was a manoeuvre certain to produce disaster. Further questioning apparently warned him of the effect of this testimony, for he states that by “hard down” he meant “hard astarboard.” Since the wind at the time was coming over the starboard quarter, the explanation is a lame one, and we think his whole testimony entitled to no credit. It seems to us well established that the white light did mislead the steamer, and that if she had not ported to pass it, but had made no change till the green light became visible, she could then have starboarded and passed in safety.
With some doubt, • however, we concur in the conclusion that the exhibition of the binnacle light is to be excused because it was in extremis. Counsel for the steamer contends that there are serious contradictions in the testimony of the mate of the schooner; but, upon a careful analysis of the evidence,, we think they are more apparent than real, and are satisfied that he did not exhibit the binnacle light till just as he called the captain, when for some little time the steamer, showing her mast-head and red light and some lights through the dead lights on her port side, was bearing down on him apparently unconscious of the schooner’s proximity. There are sufficient instances
As to the damages the commissioner has followed the authority of Ea Champagne (D. C.) 53 Fed. 398, which lays down the rule to be followed in similar cases. As to minor criticisms of his findings, we concur with the district judge that they are without merit.
The decree is affirmed, with interest; but, since both sides appealed, without costs of this appeal.
