The Pallanza, 189 F. 43

The Pallanza

189 F. 43 | 2d Cir. | 1911

COXE, Circuit Judge.

The District Judge condemned the steamer for proceeding at too great a rate of speed in an unusually thick fog and for not reversing in time to prevent the collision. We concur in these conclusions. The schooner was held in fault because the mate, who was blowing the fog-horn and acting as lookout, “had an unnecessary amount of labor put upon him while the schooner was going as fast as the wind would permit her through a dense fog. From this finding the conclusion flows that it was ‘a fault to require the mate to do so much.’ ”

[1] The steamer was at fault, first, for proceeding at too great a rate of speed; second, for not stopping when she heard the indistinct blast from the schooner, and, third, for not reversing when she distinctly heard the three blasts on her starboard bow. These manifest faults sufficiently account for the collision, and before the schooner is condemned, the court should be satisfied that her fault contributed to the accident. The direct testimony is uncontradicted that her foghorn was sounded at proper intervals by the mate, Borden, stationed at the forecastlehead. The assertion that the horn was not properly *44sounded is not only contrary to the testimony of the only witnesses who could see what was done on the schooner’s deck, but is in conflict with the dictates of common sense and ordinary prudence. The proposition that a sailing vessel, practically helpless in a dense fog, would blow her horn at a place where the sails and deck load would prevent the sound from being heard, is too absurd for credence. The District Judge refused to make a finding to the effect that the fog-horn was sounded from amidships or behind the sails and expressed the opinion that such a finding could not be made on the -evidence. He based his decision solely upon the proposition that Borden had too much to do. Having in mind the small amount of work which it is necessary to do on a sailing vessel after her sails are set and she is under way, we are unable to concur in this finding.

[2] But conceding it .to be well founded, it is in our opinion of no importance what Borden had to do, whether much or little, so long as he was doing his duty faithfully at and before the time of the collision. The uncontradicted testimonv shows that he was doing all that could be done at this time. If he blew the fog-horn from the bow at proper intervals it was as effectual as if he had been employed and paid for this service alone and did no other work. The fact, if it be so, that more work was required of him than one man should do is not material, so long as this work was done and properly done. That it was done is demonstrated, not only by the witnesses for the schooner, but also by the fact that the signals were heard on the steamer. The Nacoochee, 137 U. S. 330, 11 Sup. Ct. 122, 34 L. Ed. 687.

The decree is -reversed with costs and the cause is remanded to the District Court with instructions to enter a decree for the libelant for the full amount of his damages and costs.