280 F. 224 | D. Mass. | 1922
This is a case of collision between the steamship Munalbro and the schooner Whiteways. It occurred about 12:06 a. m., July 5, 1921, in the western entrance to Vineyard Sound. The Munalbro is about 375 feet long and 4,000 tons gross register. She was, bound to the eastward. Her speed was abput eight knots. The Whiteways was a three-masted schooner; she was loaded, as was the steamer, and she was leaving the Sound, bound west. The vessels- came together on the northerly side of the entrance, about a mile and a half to the east and south of the lightship, and about two miles to the west and south of Cuttyhunk light.
The account of the accident given by the schooner is that she was proceeding under full sail, with a moderate northeasterly breeze, her booms being well off and guyed on the port side. Her objective was the lightship. Another schooner, the Ononette, with which the Whiteways was in company, had passed her, and at the time of collision was between a quarter and half a mile ahead. The schooner’s lookout saw
The steamer’s account is that as she approached the entrance she saw the Ononette on her port bow and a steamer somewhat broader off on her starboard bow; that she was not aware of the presence of the Whiteways until the latter’s sails were discovered close aboard on the starboard bow, and shortly afterward her red light; that the steamer’s helm was put hard astarboard and the engines reversed in an effort to swing away from the schooner; and that the collision occurred before the steamer had swung perceptibly to her helm.
The collision occurred at six minutes after midnight, steamer’s time. The clocks of the schooner were an hour faster than those of the steamer. Making due allowance for this difference, there is not much discrepancy in the statements as to the time of the collision. Until midnight the steamer’s deck had been in charge of her third mate. About five minutes before midnight the captdin came to the bridge, and remained there until after the collision. As the steamer passed Vineyard Sound lightship, it was clearly seen, as was Cuttyhunk light, then some 2% miles or 3 miles .ahead, and Gay Head light about 5 miles to the southeast. The steamer’s watch also saw the red light of the Onon-ette, and observed her as the vessels passed. Just before midnight the Gay Head light was shut out by weather conditions, but Cuttyhunk light continued visible, according to the steamer’s witnesses. At some time after the collision both vessels were unquestionably enveloped in fog — -the Vineyard Sound lightship began fog signals at 12:15 a. m. according to the testimony. Before daybreak, however, the fog had cleared up.
The remaining question is whether the schooner was also at fault. The steamer contends that the schooner changed course across her bow, and that but for this the vessels would have gone clear. It is a claim which the steamer is obviously in no strong position to make, because nobody on her saw the schooner until just before the collision, and her principal contention is that the schooner was obscured by fog which made it impossible to see her. In collision cases, a claim by the burdened vessel that the privileged vessel changed course and thereby brought about the accident is not infrequently made (see Haney v. Balt. Steam Packet Co., 23 How. 287, 291, 16 L. Ed. 562), but seldom-with as little in the way of direct evidence to support it as in the present case. All the witnesses on the schooner have testified that she made no change of course, and no witness on the steamer testifies to having observed such a change. McDormand, the schooner’s helmsman, gave a second deposition, as a witness for the claimant, in which he testified that the schooner did change course across the steamer’s bow, and that, his first testimony was untrue. This and the angle of collision constitute practically all the evidence in favor of the steamer’s contention on this point. 'There are certain grounds for suspicion about the schooner’s testimony. If there were any reliable and positive testimony that she changed course, the denials of her crew would hardly suffice to convince me to the contrary. But the testimony of McDormand, who, at one time or the other, has sworn falsely is not reliable. Of a witness in a similar situation, except that his statements in contradiction of his testimony had not been made under oath, Judge Dodge said:
“If he were now to make these statements under oath, * * * I should be unable, under the circumstances shown, to accept'or rely upon them for any purpose.” The Teaser (D. C.) 217 Fed. 925.
While the angle of collision as described by most of the witnesses was much greater than the divergence of the courses on which the colliding vessels were proceeding, it is to be borne in mind that the impact of the steamer swung the bow of the schooner as soon as the vessels came into contact, and the angle given by the witnesses may be that of a few seconds after the collision,. instead of at the moment
It follows that there must be a decree adjudging the Munalbro solely at fault for the collision, and referring the case to an assessor to state the damages.