9 F. 213 | S.D.N.Y. | 1881
The first of these suits is brought by the owners, master, and crew of the American schooner Pathway to recover damages for the loss of the schooner, and her pending freight and cargo, and the personal effects of the master and crew, by a collision with the bark Nahor. The libel was filed on the twelfth of November, 1879. The vessel was released on bail, securing the whole amount claimed in the libel. Afterwards, on the twenty-first day of November, 1879,the secondlibel was filed by the owner of the cargo to recover its value. The cause of action sued upon in the second libel is the same covered by the first libel, so far as that was a suit to recover the value of the cargo. Bail was given also in the second suit. The cases coming on for trial together, a motion of the libellants to consolidate the actions was granted, reserving the question of terms as to costs, etc. It is clear that the vessel, having given bail for the value of the cargo in the first action, and the action being properly brought by the master and owners as carriers, for the loss of the cargo, she was not liable to be again arrested for the same cause of action. The proper and usual course in such a case, if the owner of the cargo desires to be made personally a party to the suit instead of trusting its management to his agents, the master and owners of the vessel, is to petition to be made co-libellant with them. The order consolidating the actions in effect produces the same result; but as the commencement of the action was improper, the libellant Bokes must be charged with the costs of the second action, and the bond given therein must be cancelled without regard to the result of the first suit. .The alleged reason for bringing the second suit is that counsel for the owner of the cargo entertained some doubt as to the relative rights of the .owners of the cargo and the vessel, in case of an apportionment of the damages between the two colliding vessels. See Leonard v. Whitwell, S. D. N. Y. Dec. 12, 1879; The C. H. Foster, 1 Fed. Rep. 733. In any view that may have been taken of the subject, I do not perceive that the position of the owner of the cargo could be any better as libellant in a second suit than it would have been as co-libellant in the first suit, as he could have made himself on motion. In any view of the case the filing of the second libel, find compelling the giving of further security, was improper.
The collision took place 'about half past 5 o’clock on the morning of November 10, 1879, about 75 miles from Sandy Hook, which bore from the place of collision about N. by W. The schooner Pathway
The libel alleges that about 20 minutes past 5 o’clock those on board the schooner discovered what appeared to be the loom of a vessel about two or three points abaft the beam on the starboard side, and immediately after a bark, which was subsequently found to be the bark Nahor, came into sight about two or three points abaft the beam over the starboard quarter of the schooner, very close to said schooner, and heading about for the schooner’s bow, and going at a great rate of speed, exceeding nine knots per hour; that said bark was going free, with all sails set, and with the wind on her port side; that when said bark became visible from the schooner it was too late for those on the schooner to do anything to avoid the collision, and the said bark struck the schooner on the stern, about three feet to the port side of the stern post, cutting into her so that she sank in about five hours; that when said bark was close upon said schooner and the impending collision inevitable, and in the effort to diminish the force thereof, the wheel of the said schooner was thrown to starboard, but the course of the schooner was not thereby altered more than two points; that up to the moment when the collision was inevitable, as aforesaid, the said schooner was kept steadily upon her course. The libel charges that the bark had no lights, and no competent lookout; that she did not luff in time to avoid the collision, and did. not keep out of the way of the schooner.
The answer alleges that about 5:80 the lookout reported a light on
The answer alleges that the bark’s lights were properly set and brightly burning; that she had a competent lookout; that her course, from 4 o’clock to the time of the collision, was N. W. by N., and that she kept that course steadily till the collision.; that the. schooner’s course was changed more than two points before the collision, and as much as four or five points. It denies the faults charged against the bark in the libel, and avers that the collision was caused by the faults of.the schooner in not keeping out of the way of the bark, and in not going under the stern of the bark or luffing up in the wind; that she had no proper lights, nor a proper and sufficient lookout; that she did not see the bark sooner than she did, and did not keep out of her way as it was her duty to do; that instead of doing so she kept away right under the bow of the bark, bringing herself about on a line with the course of the bark, and that she did not show a torch-light over her quarter and stern.
The testimony from the schooner shows that the mate, who was at the wheel, first saw the bark. He describes what he saw as a small black speck over the starboard davit. He called the lookout to him. The lookout came aft by the wheel and he saw that it .was a square-rigged vessel. They were alarmed at the situation, the vessel was so near, and the mate cried out, “Call the captain.” The lookout ran down the companion-way, which opened aft on the quarter-deck near the wheel, to call the captain. The captain was awakened by the cry of the mate, and immediately rushed out of the cabin. He had his clothes all on except his hat. When he reached the door of the companion-way the mate pointed out the vessel. He saw that it was a square-rigged vessel, apparently heading for the schooner’s bow. In his judgment it was from 200 to 400 feet away. He sprang to the
The testimony from the bark shows that the lookout reported a light on the port or weather bow; that the master, who was aft, was unable to see it, and went forward on the top-gallant forecastle, where the lookout pointed it out to him, and he saw it with his glass. It was seen by the man at the wheel, and by others of the men on deck. It was a dim light as they saw it, and at first they did not make out its color, but presently it was seen to be green. There is the usual diversity in the testimony as to the number of points on the bow that it bore. The libel says it was about four points. The learned counsel for the schooner has pointed out that if it was four points on the port bow, and the respective courses and rates of speed of the vessels were as claimed by the parties respectively, a collision could not have happened, since the bark would have passed the point of intersection of their courses before the schooner could have reached it, even if she had kept her course. This is a sufficient reason for the conclusion that the statement of about four points in the answer as the angle at which the light was seen, and the estimate of some of
It is argued, on behalf of the schooner, that it is inconsistent with the proved or admitted facts in the ease that the bark was heading N. W. by N. when she sighted the light of the schooner, and that the only rational explanation of the case is that she was heading as far north as N. by W., and afterwards, when the green light disappeared by the schooner drawing so far forward as to hide it, bringing the bark more than two points abaft her beam, the course of the bark was changed two and a half points further to the north, under the supposition of those on the bark that the disappearance of the light was caused by a change of course on the part of the schooner to port. This theory is ingenious, and enforced with great skill, but I am unable to reject the positive testimony of three credible witnesses who were on the bark, and who testify positively to her course being N. W. by N. Their testimony is not overcome by any proved or admitted facts irreconcilable therewith. The disappearance of the
Assuming, then, that the course of the bark was N. W. by N., and that she made the green light of the schooner between two and three points on her port bow, at a distance of a mile or less, it is evident that the schooner was to windward, and, under the seventeenth rule of navigation, bound to keep out of the way, if the bark had -her lights set and burning so that the schooner could have then seen her. The next question, therefore, is whether the bark’s port light was burning. The four surviving witnesses from the schooner testify that they saw no light on the bark. Two of these witnesses — the captain and the mate’s son — did not come on deck till after the captain was called. The bark herself was then in sight, and it is no unusual thing, nor should it excite surprise, that persons seeing the other vessel only immediately before the collision, and when she is herself quite visible to them, d’o not notice whether or not she has lights. Their attention was instantly drawn to the vessel herself, her sails' and hull, and the manner^ of her approach. As to the mate and the lookout this is true in a far less degree, but still the lookout certainly made out the object to be a vessel as soon as he looked at it.
The mate testifies to seeing a black speck before he called the lookout, though the libel contains nothing of this, but rather gives the impression that what they first saw was what they took to be the loom of a vessel. Admitting, however, that it is a singular circumstance that these two men did not notice the light if it was there, and giving full weight to the fact as evidence of its non-existence, still they may possibly have failed to notice it; and, at any rate, the great weight of the testimony is that it was set and brightly burning at and before the collision. There is evidence that it was so set in a crane
I think the testimony shows that the hark kept her course till the collision. This she had a right and was bound to do. She is 'charged with fault in not luffing. She was not bound to luff. The master and mate of the schooner thought she was keeping off. In this I think they were mistaken. Where a vessel is indistinctly seen from another vessel it is easy to mistake her course, and as she comes more plainly in view and her course is more distinctly made out there is frequently an appearance of a change of course which is not real. The testimony from the bark does not sustain the point that she changed her course to starboard, nor, indeed, is such a change alleged as a fault in the libel. The captain of the schooner testified that if the bark had luffed when he first saw her he thought a collision would have been avoided. He does not testify that if she had kept on her course the collision would have been avoided. He thought there was a possibility that she might have crossed her bow if she had kept her course, and not kept off. Upon the whole case the cause of the collision was the negligence of those in charge of the schooner in not keeping a good lookout, and in not seeing the light of the bark; and, being to windward of her when there arose a risk of collision, in not keeping out of her way, as required by the seventeenth rule of navigation.
Libel dismissed, with costs.