23 F. 551 | S.D.N.Y. | 1885
The steamer in this case was bound under rulo 20 to keep out of tho way of the brig. She must be held answerable for not having done so, unless she excuses herself by proof of some misconduct on the part of the brig, or by proof of such a condition of fog, and of such a compliance on her part with all the rules of navigation, as absolve her from fault and reduce the case to one of inevitable accident. The Carroll, 8 Wall. 302-304. Tho principal controversy has been in reference to the existence and character of the alleged fog. The difference between the witnesses is to some extent verbal, rather than substantial. Loth sides speak of the weather as in a condition of increasing haziness, rather than of fog proper. Some of the claimant’s witnesses speak of it as very thick at the time of the collision; while the captain of the brig insists that there was no fog proper until an hour after the collision, and that lights at tho time of the collision could be seon a mile. It is evident, however, that there was such thickness in tho atmosphere down near the water, though clear overhead, as to cause a serious obstruction in the visibility of lights, as contemplated by the rules of navigation, though 1 have no doubt that the greater thickness of the fog subsequent to the collision has been referred by the claimant’s witnesses to the time of the collision itself. The thickness of the fog is material only as respects the distance at which the brig’s red light could ho seen on hoard the steamer. There are sufficient circumstances in the case to show conclusively that her red light not only could be seen, but was seen, at such a distance as to charge the steamer with fault. Mere estimates of time and distance, not confirmed by acts done at the timo, are entitled to little weight. But such acts are proved in this case to have been done after the brig’s red light was seen, as show that the interval was not far from a minute and a half, and the distance traversed by the steamer not far from 600 yards. The fourth officer estimates the interval at a minute and a half from the time when the steamer’s helm was star-boarded, in consequence of seeing the red light, until the collision. He was in the pilot-house at the time, and testifies that the steamer went off five points under her starboard wheel. The proofs before me in other cases as to the rate of the change of steamers of this class show that this change would he made in about 600 yards. See The Lepanto, 21 Fed. Rep. 651, 664. Tho Pennland, being somewhat
Again, there were three whistles about a minute apart given as a fog signal prior to the collision. Several of the witnesses state that the red light was seen between the first and second whistles. The cap.tain, also, had time to dress himself hurriedly in the same interval. It is urged for the claimants that the time was much shorter than this, because it appears that the engineer was in the act of obeying the order to slow down at the moment of collision; while this order, it is said, was given immediately after the first whistle, and immediately obeyed. But entire reliance cannot be placed on the several items which make up these premises. There were two orders to the engineer: one to stand by, followed by an order to slow down. It would be very easy for the officer in charge to mistake the precise order of sequence in which these various directions and th& whistles were given, and the interval which separated them.. The Arklow, L. R. 9 App. Cas. 136, 141. This kind of testimony is evidently insufficient to rebut the circumstances I have above referred to. The inevitable inference is, either that the order to slow down was not given until, after the third whistle, or else that the engineer was tardy in obeying it. While a considerable time is necessary for some vessels to reverse the engine and get it working astern, but a few seconds is needed to execute the order to slow upon a steamer making, like this, 55 revolutions per minute.
The testimony of the witnesses for the brig is certainly not without some weight as to their estimates of time and distance, although much less trustworthy as respects the distance at which their own light would be seen from the steamer. They estimate that the steamer’s green light was seen a mile distant; but her light may have been seen, and probably was seen, at a greater distance than the brig’s, as the steamer’s light was probably a stronger light and higher above the water. There is no reason to distrust the testimony of the captain, that on hearing the report of the steamer’s lights he came up from the cabin; saw both colored lights of the steamer about abeam; took a hasty look at his own red light to make sure it was burning brightly; returned to the companion-way; observed the red light of the steamer then shut in; knew from that circumstance that the steamer had starboarded, so as to cross hia bows, because in no other way could the red light under the circumstances have been shut in; and that he immediately took the wheel, because he recognized the consequent danger of collision; and his estimate is that it was from one to two
From the above considerations two faults of the steamer become clear: (1) Assuming that there was a sufficiently dense haze or fog, as her witnesses assert, to require the sounding of the log-whistle at the .time when the first whistle was given,—namely, the third blast before the collision,—it was her duty to go at moderate speed under rule 21 ; that is, reduced speed. The Colorado, 91 U. S. 692; Clare v. Providence & S. S. Co. 20 Fed. Rep. 536; The Beta, L. R. 9 Prob. Div. 134. (2) From the direction of the wind it was manifest to the steamer, inasmuch as the brig’s red light was seen, that the brig must be going to the southward; that she could not be moving at a greater angle than at right angles with the steamer’s course, and might be approaching her at a much less angle. There was, therefore, manifest risk of collision, unless the steamer could avoid it by porting; and that she did not do, but starboarded. The risk of collision was, therefore, imminent until she had crossed the brig’s bows upon the course adopted. The rule in such cases positively requires a steamer to slacken her speed, and, if necessary, to stop and back. She did neither, during the interval of about a minute and a half; and she was only in the act of slowing when the collision took place. It is true that a steamer is not bound to slacken speed when it is clear that continuing at full speed offers the only chance of escape. But in departing from the rule the steamer takes upon herself the burden of showing that such a departure was necessary. The Alaska, 22 Fed. Rep. 54S8 553; The Elizabeth Jones, 112 U. S. 514, 523; S. C. 5 Sup. Ct. Rep. 468, 473; The Elizabeth Jenkins, L. R. 1 P. C. App. 501. The event in this case shows that no such departure was necessary, and that there could not have been any such circumstances existing at the time as even apparently justified it.
The brig was at the least 500 yards distant from the steamer when her red light was seen. Several of the steamer’s witnesses, indeed, say that the brig’s red light was first seen two and a half points on their
2. Two faults are alleged against the brig: First, that she did not blow her fog-horn; second, that she did not exhibit any flash-light as required by section 4234. I cannot disregard the testimony of the men on the brig,.that a fog-horn was blown as soon as as they heard the whistles from the steamer, although the horns apparently were not heard. It is admitted that no lighted torch was exhibited. But though the statute requires a torch-light to be exhibited, it does not declare that the sailing vessel shall be answerable for a subsequent collision if she fail to exhibit it, without regard to the question whether her failure to exhibit it had anything to do with the collision or not. When it clearly appears, therefore, that the exhibition of such a torch could have done no good,—that is, could not have conveyed any additional information of any use to the steamer, and could have made no difference in the result,—the omission of it is immaterial. The Leopard, 2 Low. 238; The John H. Starin, 2 Fed. Rep. 100; The Margaret, 3 Fed. Rep. 870; The Oder, 8 Fed. Rep. 172. See The Dexter, 23 Wall. 76; The Algiers, 21 Fed. Rep. 345. The burden
The libelant is therefore entitled to a decree with costs; and a reference may be taken to compute the damages.