The S. Shaw

6 F. 93 | E.D. Pa. | 1881

Butler, D. J.

I find both vessels in fault. The Ajace should not have anchored where she did, — virtually in mid-channel, and within range of the government lights. The act tended directly to produce the collision which followed. It did not, however, relieve the Shaw of her duty to observe proper care and keep off if the Ajace was seen in time.' Whether the latter vessel’s lights were up, and whether she was, or should have been, seen in time to avoid the collision, is open to doubt, if the testimony of witnesses, bearing directly upon the question, alone, is considered. But considering also the subsequent conduct of Captain Bougbor, owner of the Shaw, I am satisfied this vessel, too, was in fault. Taking the agreement to arbitrate signed by him, with his testimony, and that of Captain Cuneo, respecting it, he must be regarded as admitting that his vessel was in fault. The paper, viewed alone, would justify a conclusion that he acknowledged responsibility for the entire consequences of the collision. But the testimony of Captain Cuneo, as well as his own, show's that so broad an admission was not intended. At the outset lie offered, unhesitatingly, to pay the cost of repairs, — covering as he supposed the entire injury sustained by the vessel — but refused to compensate for loss of time, or anything beyond such repairs. It was Captain Guneo’s claim to more that led to the agreement to arbitrate. Immediately after signing the paper, the parties disagreed about its meaning. Captain Bougher," supposing himself entitleS. to show fault in the Ajace, offered testimony to that point. His antagonist, denying the right to do this, objected to the offer; and in consequence of this disagreement the arbitration was abandoned. Yiewed in the light of the testimony referred to, the proper interpretation of the paper is that Captain Bougher admitted liability for the loss sustained, but not the entire liability. This view is consistent with all he did. At the outset he asserted, on the information of his captain, that the Ajace was in fault; and he subsequently offered to prove it, — to show, as I must suppose, the extent of his liability. This liability depended, — the extent of it, (whether for the whole or a part only,) — on the conduct of the Ajace. No other interpretation of the paper is consistent with the conduct of Captain Bougher. If he did not intend to admit liability, he would not have agreed to confine the arbitration to the subject of damages; and if he intended to admit liability for. the entire amount, he would not have insisted, when making the admission, that the Ajace was in fault, and immediately after, when the agreement was being carried out, have insisted on showing such fault. The only rational conclusion is that he intended to admit his own fault, and to hold the Ajace liable for hers.

A decree will accordingly he entered for the libellant for one-half the damages sustained.