disclosed by her coming out from behind the barge, those on the Bermuda had a right to believe the A. T. Nichols would not be guilty of such negligence as to starboard and come into the way of the Ber. muda. The Bermuda. did not port her wheel in the sense alleged in the libel. She did not starboard, btlt she did keep her ccurse. She was drawing into the shore, because h'er objective point was pier 10, and therefore her course was not parallel with the shore, but her head did not swing to starboard, and she headed in the same direction all the time. If, when the collision was imminent, starboarding by the Bermuda, without stopping and backing, might have enabled the A. T. NicholS to get by, because the stopping and back· ing kept the bow of the Bermuda from going to port, it is not clear such would have been the result; and, if it would, the failure to adopt the maneuver was, at most, an error of judgment in the peril caused by the negligent action of the A. T. Nichols, and not a fault. TheBermuda was not going at an improper rate of speed. . The libel must be dismissed, with costs in both courts.
THE N.unU.GANSETT. (C,lrcuit Oourt, D. Oonnechcut
COLLrBION-NEGLECT TO EXHIBIT TORCH.
Where a schooner and a steam-vessel are approaching each other in the night-time, and in danger of collision, it is the duty of the schooner to show a. . lighted torch upon that point or quarter to which such steam-vessel is approaching, (Rev. Bt. +4234,) whether from in front or from abaf.h and a neglect t() do so will defeat a recovery in case of collision. :t
SAME-SIDE LIGHTS MUST BE BRIGHTLY BURNING.
Where a schooner suffertd her red and green lights to become so obscured by oil and smoke as not to be distinguishable as other than a colorlcss instead of being brightly burning and visible, on a dark night with a clear atmosphere, at a distance of at least two miles, (Rev. St. § 4233, rule 3,) it is contributory negligence in the schooner, which will defeat a recovery in of collision.
S. BAlfE-NEGLECT TO KEEP LIGHTS IN ORDER. ln such l'ase, where an approaching steamer mistakes such cotorJeps light for a binnacle light on a vessel going the same way aa the steamer, it is not negligence on f the part of the steamer.
Samuel L. Warner, for libellants·
. Thoma::: M. Waller, for claimant.
BL\']1CllFORD, C. J. A considemtion.of the proofs in this ca,se, as well the additional proofs taken in this court as those found in the apostles, leads me to the same conclusion arrived at by the district cburt, that no fault is shown on the part of the Narragansett, and that the libel must be dismissed. The district judge found that the sohooner'sgreen and red side lights were properly set,-that is, set in their proper places and properly screened, the green on the starboard side and the red on the port side,-and that they were burning. He ('ld not find that they wel'e burning properly. On the contrary, he finds that the master and the lookout of the steam-boat were on the watch for lights, and were careful and vigilant, and were in exercise of due diligence, and yet did not see any light on· the schooner till close upon her; that if the lights on the schooner had been visible those persons could have seen them, and that the lights were not capable of being seen. He also finds that there was nothing in the condition of the atmosphere to prevent the steamer from seeing the sohooner's lights. I concur in those conclusions. The statute (Rev. St. § 4233, rules 3 and 8) requires not only that sail-vessels under way shall carry a green light on the starboard side and a red light on the port side, but that those lights shall. be "of suoh a character as to be visible on a dark night, with a olear atmosphere, at a distance of at least two miles." It is very plain that the schooner's lights did not meet such requirement. They may have been burning, and visible to those on the sohooner's deck, but for SOIDe oause, not at all connected with the vigilance or watchfulness of those on board of the steam·boat, the schooner's lights were not seen by them. The district judge said that without undertaking to find affirmatively why the lights were not '\Tisible, he found simply that the steam-boat was in the exercise of due diligence, and that the lights wel'e not oapable of being seen,and that for that fact he relied much on the appearance and manner' of the master of the steam,boat, which impressed him favorably, and that the master was for several hours continuously before the collision in the pilot. house in attendance upon his duty, and thatitwas his business and duty to look out for lights, and that there was no inducement to be negligent, but every motive to be careful. These considerations lead me to a concurrence with the district judge. The master of the steam-boat was using a glltSsall the time to search for liRhts. The glass of the schooner's green lantern was bl'oken in the collision. The master of the 6team-boat found a bit of it, and'says that he considered it badly Bmoked up; it WlL13 damp
and greasy; and that if all of the lantern was in that condition it was not fit to emit light. The green light was the one which the steam-boat would have seen if the schooner was on the course claimed by the schooner. Kerosene was burned in the schooner's lights. No light from her was visible to the two persons in the pilot-house of the steam-boat, or to the bow watchman of the steam.boat, until the steam-boat was close upon the schooner; and then what appeared to be a dim, colorless light on the schooner was Been by those on the steam-boat. The light, not being seen to' be green or red, was taken to be a binnacle light in the cabinofa vessel-going the same way says that with thesteam-hoat. The bow watchman of the a kerosene lamp will naturally get blurred on the top; that while a smoked green lantern would seem green near at hand, it might seem without color far off; and that to a man looking at its smoked part it might seem colorless, while to a man looking upward to it, it would seem green. All this may explain why the lights \Vere not seen, thOugh it is not necessary the steam·boat should do so. The libel alleges that the schooner was "duly lighted;" that her green and red lights were "brightly burning;" that she "had all proper, sufficient, and lawful lights set and burning, as aforesaid." The burden is on her to show this, and she has not; done so. The steam-boat, on discovering 'the schooner, did all that it was incumbent on her to do. On the view she had of the light she had a right to think it was on a vessel going the same way. She slowed and ported 80 as to go by on what she reasonably believed to be the starboard hand of the schooner. Rule 21 in § 4233 provides that every steam-vessel, when approaching another vessel, so as to involverisk of collision, shall slacken her speed" or, if necessary, stop and reverse. She did slacken her speed, and it did not then appear to be necessary to stop or to reverse. Afterwards, as soon as danger of collision appeared from the sudden coming of the sails of the schooner into view from the light thrown on them by the head-light of the steam.boat, the latter stopped and backed, and backed strong, and her wheel was put hard a-port. She could do no otherwise and no more. There is another point in the case. It is provided by section 4234 of the Revised Statutes that every sail-vessel shall, "on the approach of any steam-vessel during the night-time, show a lighted torch upon that point or quarter to which such steam-vessel shall be approaching." The schooner saw the approach of the steam-boat from a long distance, o.nd failed to show the lighted torch. This
neglect is set up in the answer. There was a torch in the cabin of the se booner, ready for use and easily accessible. The mate of the schooner, who was at the wheel, did not know that there was a torch on board. The master did. He states that he never saw a torch nsed. It is quite clear that the torch could have been 'got out and lighted and used in time to have prevented the collision. A mistaken idea seems to have been entertnined by the master and the mate that a lighted torch' was to be used only when a steamvessel was approaching from behind. This steam-boat was not approaching from behind, if the testimony of those on the schooner is to be believed. But the statute has no such meaning. The lighted torch is to be exhibited to the approaching steam-vessel, from whatever direction she is coming,· and is to be shown on the point or quarter to which she is approaching. It was clearly a fault in the schooner, contributing to the collision, that she did not exhibit a torch-light. The Eleanora, 17 BIatchf. C. C. 88. The steam-boat had a right to rely on the exhibition of a torch-light, if the schooner was in such a position that the steam-boat was approaching her, and the absence of the has an important effect in determining that the steam-boat was not negligent, and observed due caution. ,The libel is dismissed, with $121.25 costs of the district conrt as taxed, and costs to the claimant in this court.
NOTE. Under Revised Statutes, § 4234, the failure to exhibit a torch-light or tlash-light is a fault in case of a collision. The J. H. Starin, 2 FED. UEP. 100; The Alabama, 10 FED. REP. 394. The provision of the statute is sufficiently broad to require such light to be exhibited to a steamer coming up astern, (The Sm'matian, 2 FED. REP. 911,) but is not confined to cases where a ste.amer is approaching ,rom astern. The Narragansett, 3 FED. REP. 251. It must be exhibited whether the steamer be approaching from forward or abaft the beam. The Samuel H. Cmwford and The Niagara, g FED. UEP. 906. The failure to exhibit a torch-light does not render the vessel so failing liable to damages, unless such failure tended to produce the collision. The Margaret v. The C. Wlliting, 3 FED. REP. 870. So a failure would be. no fault, if of no avail for want of a proper lookout on the steamer. The Steam-. ship Oder. 8 FED. REP. 172.-[ED.
(District f]ourt, E. D. New YO'I;k. October 19, 1881.)
1. COLLISION-STEAMER CROBBING CoURSE OF SAIL-VESSEL·
. Where a sloop and a steamer were approaching each other from oppositedirections,where there was plenty ohea-room, and the steamer, in attempting tocross the sloop's course, came into collision with and sunk the sloop, held, that. the ateamer was in fault, and that being liable to sheer in conditioIIS of wind and tide is no excuse.
SAME-ACTS IN EXTREMIS.
The sudden luff made by the sloop when the steam-boat was upon her was a ' movement in eaJtremis, and the natural result of the fault committed bY'the steamer,and therefore no fault that can render, the sloop liable.
L. R. Stegman and E. G. Davis, for libellant. Dennis McMahon, for respondent. D. J. This action is bronght by the owner of the sloop Jane Eliza to recover the dama,ges resulting from the sinking of that sloop in a collision with the steam-boat Norwalk, which occurred on the twelfth day of October, 1880, in the Kill van Kull, off New Brighton, Staten island. The time of the collision was between 2' and 3 o'clock P. M. The weather at that time was clear, with a fresh breeze from N. W. by N., according to the libellant, and W. N. W., according to the claimant. The tide was ebb; that is, running to the eastward in the Kill. The steam-boat was moving about 12 miles an hour. through the water, and bound to the westward. The sloop was moving about five miles an hour, and bound to the eastward. As the sloop approached the beacon near the eastern entrance to the Kill, the Norwalk was perceived coming down the Kill. The weight of the evidence is that at this time the course of the sloop was to windward of the course of the steam-boat, and that if both vessels had held their courses they would have passed each other to starboard. In a short time the man forward on the sloop sang out to his father, who was steering the sloop, to put his helm hard down and run, as the steam-boat was coming into them. The fatber put the hMm hard down, and before he Muld get away from the tiller the steam-boat struck the sloop nearly admidships on the starboard side, causing her to sink instantly. That this collision was the result of fault somewhere is evident, for the vessels were approaching in full view of each other, and there was plenty of room for them to pass each other in safety. In my opinion the fault that caused the collision was committed by the steam-boat, and consisted in crossing the course of the sloop