22 F. 117 | N.D. Ill. | 1884
On the morning of October 14, 1880, a collision occurred in the waters of Lake Michigan, a short distance off Point Waugoschance, between the schooner George Murray and the steam-propeller Ganisteo, in which the Canisteo was so badly damaged that she was beached within a short time after tiie collision. Wiley M. Egan, as owner of the schooner, filed a petition for limitation of liability, and the usual monition against all persons having any claims against the schooner was issued. The Ganisteo was bound on a voyage from Chicago to Buffalo, with a cargo consisting in part of 15,000 bushels of corn on which the Phenix Insurance Company had issued a policy of insurance. The cargo of the Ganisteo being a total loss by reason of the collision, the insurance company paid the loss, to the amount of $7,200, under the policy, and presented its. claim for the amount in its own behalf, asking to bo subrogated to all theniglits
The faults charged by the insurance company against the Murray, as a ground of recovery, are: (1) That the schooner, after she was sighted by the steamer, and when they were approaching each other, changed her course, and thereby caused the collision; (2) that the schooner had no lookout; (3) that the officer of the deck of the schooner neglected his proper duty at a time when his active vigilance and attention to the navigation of the vessel was demanded,- to attend to other work belonging to his subordinates. The testimony is voluminous and, as is usual in collision cases, contradictory in many important particulars. It is, however, conceded on both sides that the collision occurred between half past 3 and 4 o’clock in the morning; that the night was clear and the ydnd about south-east, — a six to eight knot breeze; that the steamer, when she first sighted the schooner, was to the south and west of Waugoschance light, running about north-east, in the usual track of steamers approaching the entrance to the straits of Mackinaw; and that the schooner was to the north of the light, having just passed through the straits on her way to Chicago. It must also, I think, be assumed as true, from the proof, that at the time the shooner was first seen on the steamer she had changed her course from about west, which she had been running while in the straits, to a south-westerly course, for the reason that the master of the steamer says he first saw the green light of the schooner, which would indicate that the schooner had passed sufficiently west to round point Waugoschance, and shaped her course for the Manitous. This was about 20 minutes before the collision, and the vessels were then four or five miles apart, the steamer running about nine miles an hour, and the schooner about six miles an hour, making the united speed about fifteen miles an hour.
The mate of the Canisteo, who was the officer of her deck at the time of the collision, and is the principal witness relied upon by the insurance company, to show that the course of the schooner was so changed as to cause the collision^ says that he first saw the schooner’s green light, and that it bore about half a point on his starboard bow; that she kept her green light in view eight or ten minutes, and then showed a red light; that he then put the wheel of the steamer
This witness’ statements as to time are quite loose and uncertain, but his statement of the sequence of events is fairly clear. He was engaged in helping haul in the sheets, heard the captain ask what light that was, and the mate’s reply; looked himself and saw the steamer’s green light; then, and while witness was still at work at the sheets, the captain ordered a torch to be shown, and while the torch was being shown he ordered the wheel hard up; then the steamer crossed the bows of the schooner and showed her rod light on the schooner’s port side, and then came the collision. Rock states that while he was helping to haul aft the sheets, the captain came on deck, looked out, and asked, “What light is that to leewa^ 1 ?” The mate replied, “Some steamer bound down.” The witness looked and saw the steamer’s green light, then thought he saw her red light, but does not state how much time passed between the time he saw the green and the- time he thought he saw the red light. The captain then ordered
This is all the testimony as to the alleged changes of course by the schooner, and it will be seen that the witnesses on the schooner only testify to one change of course, and that was at or about the time the torch was shown. Some say the order to put the wheel hard up was' given before, and some say it was given after, the torch was shown, and the concurrent testimony of these witnesses is, that at the time the torch was shown the danger of collision had become imminent. Indeed, it can hardly be supposed that the captain of the schooner would have deemed it necessary to show a torch on such a night — when the atmosphere was so clear that’ there was no difficulty in seeing objects like a steamer or schooner at quite a distance, without reference to their lights — if the maneuvers of the steamer had not been such as to create alarm or cause him to infer that, for some reason, those in charge of the steamer had not seen the schooner, and were not aware of the danger.
On the part of the Murray, we have the testimony of Capt. Hurlbut, Cassan, the man at the wheel, and Smith, the mate, that no change .was made in .the course of the schqoner until just the instant before the collision, when the wheel was put hard up by order of the captain. Bracken, the mate of the Canisteo, states that at about the time he got the schooner’s red light the last time he gave several sharp toots from his steam-whistle, and signaled to stop and back; but that these signals were hardly responded to before they struck, and Capt. Hurl-but says that the order “hard up” was given when he heard these whistles'. Cassan, the wheelsman of the schooner, says the steamer was almost into the schooner when he got his order to put his wheel hard up, and that it was right after he heard the whistles and signals to back on the steamer.
This testimony is so probable, and in accordance with the natural course of occurrences, that I must say it seems to me much
Why, then, should this schooner’s course have been changed? Any one who reads the proofs must be satisfied, I think, that the schooner had rounded Waugoschanco and laid her course for the Manitous when the captain came on deck. The vessels were then four or five miles apart. The mate had made the course south-west. The captain directed it to be made south-west by south, and she was brought up to that course. This was no such change as would embarrass the steamer, for the steamer was to leeward of the schooner, and this change would carry the schooner still more to 'windward, and keep her green light still in view from the steamer. Capt. Hurlbut states that after he came on deck, and had made out the steamer’s green light on his starboard bow, lie noticed the steamer changed her course so as to cross his bows and show him her red light. He then directed the torch to be shown, and while it was burning the steamer passed clear across his bows and went off to windward, and that he next saw the steamer coming in upon his port quarter, when the order to put the schooner’s wheel hard up was given. If Greenwood, Bock, Cassan, Smith, and Hurlbut are to be relied upon, if the truth can fairly be inferred or deduced from their testimony, there was no occasion for changing the schooner’s course after it was made south-west by south, when the vessels were four to live miles apart, until the collision became imminent; and her officers knew she had no right to change it, under the circumstances, except in the immediate peril of collision. It is true, as suggested by the proctor of the insurance company, she was probably making some leeway, which would tend to carry her toward the track of the approaching steamer; but that is a matter which the steamer was bound to take notice of, and keep far enough away so that the schooner’s leeway should not bring them together. But the matter which impresses me most is that the mate in command of the steamer was negligent in not giving the schooner a wider berth. From the time he saw the schooner, according to his own statements, they approached each other nearly heads on. This there was no necessity for him to do, and he ought not to have done it. He should have given the schooner so wide a berth as not to have embarrassed or alarmed her. He had ample sea-room to do this, and I sqe no excuso for his failure to do it. In fact, I see no good reason why 'this steamer, that was first sighted to lcoward of the schooner,
The next point to be considered is the allegation that the schooner had no lookout. As to this there can be no doubt, from the proof, that Rock had been acting as lookout, and that he was fully competent for such duty, up to the time that the mate called him to help haul the sheets aft; before that time he had seen the steamer’s lights and reported them to the mate. When the captain came on deck Rock was still working at the sheets, and the captain, seeing the lights, made inquiry about them, and the reply made to him by the mate shows that the mate, was aware of the approaching steamer, as his reply was, “It is some steamer bound down, I suppose.” The mate, therefore, and the captain were both then fully possessed of all the information the most vigilant lookout could have given them. At that time there was no apparent danger. The vessels were running green to green, with the pathway of the steamer outside or to the westward of that of the schooner. The steamer could easily have gone off a point or two further, so as to have carried her clear away from the schooner’s pathway, as there was no obstacle to have prevented her from doing so. ' The captain watched the steamer until he saw her going to windward instead of to leeward of the schooner, and when he saw her crossing the schooner’s bows, so as to show him her red light, he deemed it a proper precaution to display a torch. The services of a lookout, for the purpose of informing the officers of the schooner of the proximity of this steamer, were not needed after the captain came on deck. The rule is fully settled that the precaution of a lookout is not indispensable when, from the circumstances, a lookout could not be of service, or when the officer of the deck is in full possession of all the information a lookout could possibly give. The Farragut, 10 Wall. 334; The Fannie, 11 Wall. 238; The Milwaukee, 1 Brown, 313; The Franz Sigel, 6 Ben. 550. I cannot, therefore, see that the temporary employment of the man assigned to the duty of lookout, in helping to trim the aft sheets, contributed in any degree to this collision. Nor did the fact that the mate was for the time attending to hauling in these sheets contribute to the collision, because the proof shows that even if this was incompatible with any other duty devolving upon him as officer of the deck, he was relieved from that duty by the presence of the captain, who assumed charge and became officer of the deck before there was any apparent danger.
I agree with the learned counsel for the insurance company that, in a case like this, if any substantial fault of the 'officers of the Mur
Borne stress was laid at the argument upon tho fact that the answer of Mr. Egan to the petition of the insurance company does not charge the fault of the collision upon the steamer, and exonerate the schooner from fault. It is evident that the proof has been taken without objection, so far as shown by tho record, for tho purpose of ascertaining who was at fault for the collision, and if the allegations in any of the pleadings are not broad enough tp admit the proofs, they may he amended, before the decree is entered.
The exceptions to the commissioner’s report are overruled, the report confirmed, and petition of insurance company dismissed, at petitioner’s cost.