21 F. 134 | S.D.N.Y. | 1884
The cross-libels in the above suits were filed to recover the damages respectively sustained by the owners of the barks Fontenaye and Johanne Auguste, through a collision which took place between the barks in the Atlantic ocean,'off Nantucket shoals, at about 4 a. m. of September 6, 1881. The Fontenaye claims damages to the amount of $16,000; and the Johanne Auguste, to the amount of $10,000. Each alleges that the collision occurred by the fault of the other. The stem and bow of the Fontenaye were carried away in the direction from port to starboard. The Johanne Auguste was struck and damaged in the starboard bow only. These facts are of importance in the conflict of evidence on other points.
The Fontenaye was an iron bark, 180 feet long; 28 feet beam, and of 635 tons register. She left New' York early in the morning of September 5, 1881, loaded with a cargo of wheat, and bound for London. During the night following the weather was overcast, dark, and hazy. The witnesses -from the Fontenaye say there was some fog, but not enough to require the use of the horn. The other bark’s witnesses say that it was dark, but with no fog. The sea was moderate; the wind light, and variable from S.'W. to S. S. W. The Fontenaye was
The Johanne Auguste was a woodon-built bark, 200 feet long, 32 feet beam, and of 918 tons register, bound from Bremen to Philadelphia, loaded with a cargo of general merchandise. Her witnesses testify that the sea was smooth, the wind variable from 8. W. to S. W. by S., and the night very dark. Most of them say it was hazy, and all
The first officer of the Johanne Auguste testifies that his attention was first called to the Fontenaye by his lookout, who reported, “Ship right ahead,” to which he answered, “All right;” that he was then standing on the port side of the poop-deck, between the mizzen-mast and the skylight; that he walked a few feet forward, and heard the lookout sing out again, but did not hear distinctly what he said, and that he replied, “All right,” went to the pilot-house, looked under the sail, and could see nothing; that he then ran to the cabin, got a night-glass', and ran forward as fast as he could, and, when going up the steps to the forecastle, he asked the lookout, Anderson, if he could see any light, to which he said, “No;” that he then went to the capstan, where Anderson pointed out the vessel, which he could see, but that no light was visible; that with the use of the glass he could see nothing more; that the ship was then seen about three-quarters of a point off his starboard bow; that he supposed from seeing no lights that he was following the other vessel; that he watched her about half a minute, and, seeing that he was gaming upon her, ordered his helm hard a-port, and ordered one of his men to go aft and repeat the'order; that after standing a minute or a minute and a half by the capstan, he suddenly saw the green light almost ahead, about a quarter of a point off his starboard bow, when he immediately gave the order hard a-starboard, that another man observed and spoke of the green light at the same time, and that the collision took place some 10 or 15 seconds afterwards, the jib-boom of the Fontenaye ranging from the starboarb bow; that no red light on the Fontenaye was seen; that they were entangled about 25 minutes, having met nearly end on; that the Johanne Auguste was struck upon her starboard bow, a few feet only from the stem; and that at the time of collision her sails were full, and that she was heading W. by N. The variation at the place ,of collision was three-fourths of a point west. The man at the wheel testified that the wind was S. W. by S., but variable; that his orders were to sail by the wind, and that he kept the vessel heading about W. N., by compass; that the sails were full, sometimes a little shaky; that he heard the hail from the lookout, and saw the mate run forward, as he testified; that he was soon after ordered to port the helm; that he put the helm hard a-port, looked at the compass, and saw that he was then heading W. by N.;
In other respects the two accounts, in their general features, are not so irreconcilable as they at first appear. Each, with the exception above stated, is consistent with itself, and agrees so perfectly with the orders which would naturally be given, upon the facts as testified to, and which unquestionably were given at tbe time for the navigation of each vessel, that both must be accepted as correct, so far as it is possible to harmonize them, in the absence of anything to throw discredit upon either. With some modifications of the mere estimates of the times and distances stated, and some additional slight changes, the two accounts will be found to harmonize, and to confirm each other in all their essential features. At the same time they disclose faults in each vessel.
Counsel for the Johanne Auguste contends that h.er green light, and not her red light, was first seen by those on the Eontenaye, and that the two witnesses who testify to seeing the red light either misstate the fact or mistook the light. But it is incredible that the mate of the Fontenaye, if he really saw the green light, should have at once ordered his helm hard a-port, as he certainly did, so as to make directly for an obvious collision. Seeing the red light, aá he and the lookout testify they did, porting was the natural and obvious course. Neither can any mistake of the green light for the red be considered as having the slightest probability in this case; for the sucessive changes which were seen—first the red light, then both lights, and then the green light alone—forbid any such hypothesis. These changes of the Johanne Auguste’s lights in the order stated, I regard, therefore, as fixed facts. They could not have been produced by the Fontenaye’s change of course, for she was veering to the southward, under her hard a-port wheel; and any change thereby produced in the appearance of the other’s lights, if any, would have been a change
2. There is no less doubt that the red light of the Fontenaye ought. to have been seen very shortly after she ported. When the Johanne Auguste’s red light was seen, the two vessels were very nearly ahead of each other; the Johanne Auguste being a little to windward of the other’s course'—a hundred feet, perhaps—and being then headed so as to cross that course a little ahead of the Fontenaye, and so as to make an angle of perhaps a third of a point with the line of her course, just sufficient to expose the Johanne Auguste’s red light only at that time. Upon porting, the Fontenaye’s red light should very soon have come into view, and so remained till the collision. It was not seen at all. After the collision it was inquired for, and in reply the men on the Fontenaye pointed it out, still burning: Though only the mate testifies that it could not be seen before the collision, I cannot doubt the correctness of his narrative in this particular. The lights were eagerly looked for; none were seen. He ran forward; still none could be seen, and the red light was not seen till some of her men came aboard of the Fontenaye. There was no such inattention or negligence on the Johanne Auguste, when the red light ought to have been seen, as can serve to explain the failure to see the red light. The only alternative is that it was either obscured or improperly screened; it is immaterial which. The Tirzah, 4 Prob. Div. 33. The sails were upon the port side, and might have obscured it. The position' of the lights so near the taffrail, with the swell of the . ship’s side in front, exposed them to peculiar danger of being obscured. If the screen were adjusted parallel with the poop rail, that also would have thrown the line of obscuration somewhat to port instead of directly ahead; sufficient, probably, to have prevented the red light’s being seen by a vessel so nearly ahead as the Johanne Auguste was during all this time. It is impossible, and it is unnecessary, to deter- , mine in what particular way, or from what cause, the red light of the Fontenaye was obscured. I am satisfied it was obscured. Had it been seen when it ought to have been seen, I cannot doubt that the Johanne Auguste, by porting earlier than she did, might have escaped the collision, and would have done so. The Fontenaye must be held responsible for any obscuration of her light, expecially when placed in the extreme after-part of the ship, where there is such increased danger of obstruction, (The Tirzah, supra;) and it results that "both vessels must be held in fault and the damages divided.
The above considerations satisfy my own mind as to the proper determination of the case, without commenting on the differences in the testimony concerning the condition of the weather; and the above result would not be changed whether the weather was foggy or not. The fact, however, that neither lookout saw any light sooner, is, I think, more rationally explained by supposing that the weather was somewhat foggy, as the witnesses of the Fontenaye testify, or very-hazy, as most of those from the Johanne Auguste say; rather than
To explain a little further my view of the mode in which the collision took place, I may add that in constructing a diagram to represent the position and probable courses of the vessels I should make the Fontenaye, when the red light was seen, heading E. by S., (true;) put the Johanne Auguste about ono-third of a mile ahead of her, and about 100 feet to windward, and heading W. by N. -J- N., (true.) The point of collision would fall about 200 feet to the windward, and about 1,100 feet ahead, of the Fontenaye’s first position. At that point the Fontenaye would be heading S. E. by E., and the Johanne Auguste W. N.; the latter having, meantime, swung first to VV. ¿ N., when more than half the interval had been passed, and then ported, and again starboarded, bringing her at tlie collision to W. hi. This makes the general courses of the Johanne Auguste, during this period, about half a point, or more at times, to the northward of those stated by the wheelsman. But his statements cannot all he accurate. The course of the Fontenaye, however, may at this lime have been somewhat more to the northward than her true course of E. by S. The mate allows a variation of half a point. If such a variation to the northward, i. e., E. S., he taken for the Fontenaye’s course at the time when the red light was first seen, then a corresponding change of half a point to the southward in the diagram of the Johanne Auguste’s courses would bring the courses of the latter into close correspondence with the testimony of the Johanne Auguste’s witnesses, and the result would ho the same. Some slight variations must he made in the courses stated by the witnesses, to the extent of one-half or three-quarters of a point; it is immaterial on which side they aro placed, or whether they are distributed between the two.