:(JO'Urt, N. D. IUinou" Jauuary6, 1888.)
COLLISION-PROPELLER ENTERING HA'l'tBOR.
;''Wherei etitering a harbor. on a dark night at, a high rate of speed, she was held'liabie for a collision wi1ih'a scliooner, leaving such harbor, notwithstanding the evidence was conflicting as to the position of the lights of the schooner, or the period at which a torch-light had been flashed On the schooner, and although the propeller mar: ,havchad a lookout.
2. SAME-FAULT-HIGH RATE OF
In sucha caseit is fault in a ntJt to slacken
when entering a harbor on a dark night. the necessar.l" precaution's to avoid acollision.
,! "-' ; :.- :
H., W. MiUf?1r, for
,filed ;by the owqer of, the schooner a collision of the propeller Blldger Stata i with the, (lll', October 9, 1877. A ;iq'F', to start out on her to after oQt a p.jstance from harqof,t her go, apd the to sail, aI;ld whiJ,e p-oing so, the hour being f} aome distance' off, making for C,hiqago. I' is p.ifference of.,opinion, amollg as to pxecise!coll.!'se of the, tw.o vessels, but itseems sufficient;t9 say t,he 8chooner-was about N. byW., 'apd, S. l-&I"J S. W. The from th.eharbar, probably less than a mile from the pier. The propeller struck the schooner a glancing blow on the starboard side. The night was not very dark, and a light properly displayed on a vessel could be seen at a distance of several miles. The rule of law in a case like this is well settled. It was the duty of the propeller to avoid the schooner, and done so, and the collision having taken place, it is incumbent on the propeller to establish by competent evidence that the collision was caused, in whole or in part, by some fault on the part of the schooner. It is claimed by the defendant that the schooner was in fault in three particulars: that the schooner did not, just before the time of the collision, show a starboard or green light, as the law requires; that she had no sufficient lookout; and that she was not properly
navigated at the'time. Thft,principal difficulty grows out of the first defense alleged. Was the collision caused in consequence of a gr.een light .not having been displayed by the schooner at a pJ;oper and in, a proper place? The law of congress that there should be, "on stavbQardside, a green light of such a character as to be visibl-e 011 a dark night, with a clear atmosphere, at a tance of atleast two miles, and so as to show a uniform and unbroken light over an arc of the horizon of 10 points of the compass,. a:Qdso fixed as to throw the light frot;n right ahead to two points abaft thE! beam on the sta.rboard side." There seems to be no doubt but that the lights required by the statute were placed upon the schooner before she was released b,V the tug. There is the concurrent testimony of several. of the witnesses that the lights were properly placed prior to thaUime. The doupt.about the green light arise,8 from the testimony of one or two of the witnesses on the part of defense, and from the fact, as alleged by SOlDO of the defendant's witnesses, that the green light was not seen, u,ntil immediately before the collision by those who were on the lookout on board the. propeller. A witness .who was on the tug testifies· that just as they started out with the tow, and a man was about to put up the lights, he asked him not to put up the green light in its place until they got outside, because it would glare in his face, and he says that it was then put on the top or forward hatch, and was not put up on the vessel before he let go of her; and in this he is corroborated by the engineer 'of the tug, Some of the witnesses on the propeller, and who were on the lookout, state that if the green light had been in its proper place in the rigging it could have been seen from the propeller for a considerable time before the collision, and in season to have avoided it. These statements of .the witnesses on the tug are distinctly contradicted by several on the schooner, who state that the lights, including the green light, were both in their proper places in the rigging, where they were distinctly visible; and the statement made by these witnesses on board of the tug that the green light was put upon the deck and turned away from the tug, does not seem to be very consistent with that made. by several of the witnesses on the propeller, that they saw the green light; one of whom, especially, asserts that it was in the rigging, because if it hadbee,n turned away on the deck, as mentioned by the witnesses on board of the tug, it could hardly have been visible in the manner stated by witnesijes on board of the propeller. If the. green light was on the deck, and it was. put in the rigging after that, it must have been by some ,p,er-
son on boara of theschoonet; and we have no-testimony from any one on board of the indicatblg a change of the position of the lights from the time they were first taken and put in place. It is distinctly stated by several Witnesses that after the schooner reo turned to the harbor in consequence oftha injury, the lights, includ. ing the green light, werssuspended in, the' rigging. It is claimed,' on the part of the defense that those on board of the propeller con· stitutingthe Jookout,among whom was the captain, must have necessarIly seen the green light if it had been in its proper place. That would seem to be so,provide(Hhey did keep a proper lookout. It seems rather singular that the' captain should first see a dark bbject, the vessel itself,':and not the lights of the vessel or either of them. There are others on board of the propeller who state that they did seefthe lights, il1cluding the green light; bnt, as has already heen stated, not long before the collision.' It may have been in consequence of the fact of making sail, or the course of the two vessels in thus approach'ingeach other, that the light was obscured for a time. It seems, however, very clear that there were not on board of the propeller sufficient 'precautions taken to avoid the collision. In the first place, the propener was running too fast; she had not slack· ened her speed in approaching the harbor, which was nine miles an hour. near tho harbor after dark, she should have slack. aned her speed and kept a specially vigilant lookout for approaching vessels. This appears not to have been done. In the conflict of evideneif<£ts condition of the green light a short time the collision, the statements made' by the captain on the following dai are riottvitnont a certttin significance. It is true, he denies those statements, and a witness or two present say they were not heard; but another witness present, entirely disinterested, says that the statements were made, namely, that the lights of the schooner were seen, and no satisfactory explanation was then given why the schooner was not avoided by the propeller. Admitting that this part of the case is not free from difficulty, still I am inclined to think the weight Of the evidence is that the green light of the schooner was in its proper place and could have been seen, and the schooner avoided by the propeller, if proper care had been tltken. In any event. I think it cannot be asserted, with any degree of confidence, that the absence of a green light in its proper place contributed to the collision. It is claimed, 'on the part of the defense, that there was no sufficient lookout on board of the schooner. It may be admitted that
there was not anyone stationed as a regular lookout at a proper place prior to the collision; but,if there had been, what difference would it have made? The object of a lookout was to ascertain and guard against approaching vessels. There wei'emany Dien on board of the schooner who saw the light of the propeller a long way The object of the lookout, therefore, was fully accomplished,The light of the propeller was it was known that it was a.propeller approaching. The ,duty of schooner, such circumchange; ,and I think'the stances, was to keep on her ,she d,id keep on' her evidence establis4es, beyondalluoubt, course, and that if there were any change of the schooner, it was when the collision was so imminent that-the change did not contribute in any degree to the collision. Some of the witnesses on the part of the propeller state while SODie of the sails were full just at the point of collision, others' were shaking in the wind, which, it is is claimed, would not have 'been the case provided she ha.d' kept 'on her course, as she had the wind frM. How far this may have been effected, if true, by any change of course at the moment, cir 'by the fact that the schooner had not Diade full sail on her, I do not think it is necessary to inquire. that the schooner was not llropThere is nothing in the other erly na)'igated. As already said, it,was her duty to keep her and the evidence,shows that she did; or, if.there were any change, it was one that did not cause the collision. Witnesses on board of the schooner state that after the propeller had been observed for some time, and the indications were that proper measures were "not being taken to avoid the schooner, a torch was Ht'ana: shown from the sel, in order additional evidence might be to the al,>proach. ing propeller of the dangerQf. collision. Those on 'board of the schooner declare that this torch was shown in ample time to enable the propeller to avoid the schooner; while those on board of the pro. peller state that it was shown when the collision was unavoidable. I do not pla'ce any great stress upon the exhibition of the torch under the circumstances, because of the conflict of evidence in relation to the time when it was shown. In looking at the whole case, it seems to me that the necessary vigilance required of the propeller at the time and under the circumstances was not shown, and that the collision may be fairly said to have been the consequence of this want of vigilance· on her part. There seems to be no question about the Clttmages, and the decree of the district court is affirmed. "
'(Circuit OOU'I't, 8. D. New York. February 27, 1883.)
NEGLIGENT DELIVERY.Oll' OARG07 DELIP111Y BySl'EOrAL REQUEST-BURDEN Oll' l'ROOF OF REQUE8T.
The libelant :tiled a iibel agaiJ;lst the defendant to recover damages for the, . non-pprformance of a contract for the delivery of merchandise in good order. The defense admits the improper delivery, but seeks t.o justify on the ground that the delivery :was made at .the request of the libelant, who was anxious for an immediate deIiveJ,:y, and to'assume the risk. Held, that the burden of proof is with the defendants to estabIishs8tisfactorily such exculpatory theory;
Benedict, Taft if Benedict, for appellants. Butler, Stillmitn if Hubbard, for appellees. WALLACE, J. The libel in this cause was filed to recover damages for the non-performance of a con,tract for the delivery, in good order, of 1,000 barrels of Portland cement, shipped on the steam-ship Staincliffe, for New York. The district court dismissed the libel. The following facts are found:
On or about September 10, 1877, J. B. White & Bros. shipped in good order and condition, on board the steamer Staincliffe, then lying at London and bound for New York, 1,000 barrels of cement, to be carried to New York and there delivered to the libelan1, in like good order, for certain freight to be paid. The steam-ship arrived in New York October 2d, and October 3d the libelant paid the freight. October 3d the steam-ship commenced discharging her cargo, and put off 52 barrels of the cement, which was accepted by the libelant. On the fourth day of October showers fell in the forenoon, and the indications for more rain were threatening. On that day the steam-ship discharged upon the dock 621 barrels, and delivered to the lighter Comet 327 barrels, making her entire cargo of cement. The libelant, on the third and fourth dayS of Odober, had given orders to lightermen, including the Oomet and others, for 933 barrels. October 4th the steam-ship was taking in outwardbound cargo, as well as discharging cargo, and the dock was so crowded that access to the cement was not practicable. Late in the afternoon it rained hard, and the cement, though requiring protection from the rain, was not protected; 16 barrels, however, of that discharged upon the dock was taken away by a truckman, to whom the libelant had given an order. The remaining 605 barrels of that put off upon the dock remained unprotected dUring the night of the fourth, and was taken away in a more or less wet and damaged condition. by the libelant's directions, on the fifth and sixth of October. The fourth day of October was an unsuitable day to put off the cement, OWing to the state of the weather, unless it was protected from danger. The injury to the cement was caused by its being wet on the afternoon and evening of October 4th. The libelant did not consent to accept the delivery of the cement put off Upall the dock on the fourth day of October.