THE HERCULES. PilILADELPHIA
CO. v. WARREN
(Circuit Court, D.
August 14, 1883.
-ScrrooxER-TORCH- J) A)HG ES DTVIDED.
Thc cvidcncc in this case held to sustain the judgment of the district court as to tlJe fault. of the stcamer in not avoiding the schooner with which she collided hut that the failure of the scluoner to exhilJit a torch, as rcquired hy He,'. St. 6 '423-±, "on the approach of a steam-vcssel during thc uight-timc," rendered her also in faull, and that thc damages should divided oetwcen the two vessels.
In Admiralty. ]J[orse J. Stol/e, for claimants. John C. Dodge Sons, for Warren Foundry & Machine Company. John Lathrop and John C. Dodf./e, for Perkins and others. LOWELL, J. I agree "'ith the district court that the steamer's people have not sustained the burden which rests upon them of proving a change of course on the part of the schooner. It is not easy to understand how they could have mistaken a green light for a red one; but it is still more diilicult to believe in so sudden and complete a cbange by the schooner as would account for the collision. The "stereotyped excuse," as it has come to be called, from an energetic remark of GRmu, J., in Haney v. Baltimore Steam Pac!;et Co. 23 How. 21)1, "always improbalJle, and generally false," that the sailing vessel changed her course, always seems prooable to the persons on board the steam-ship; for, assuming as they do, that tlley have made no mistake in courses and distances, tbe necessary inference is that the other vessel has failed in the simple duty of keeping her course. ?lIy own observation has taught me that a great llluny of these accidents happen from a failure to see the approaching vessel, which may be due to a defect in her lights, or to a want of vigilance. In this case, there is no complaint of the side lights, and the vessels were approaching each other at the rate of aoout a mile in four minutes; and, if the schooner's lights had been seen from the first moment that they ,rere Yisible, the time would 11aye been short; and one possible explanation of the mistake is that the ships ,,-ere so near each other ,,-hen the light ,,-as seen that there was hurry and excitement on boa1'(l the steamer. It is not necessary, howeYer, to decide more than that the llIght "as clear, the schooner had the side lights, and should haye been ayoided by tho steamer. Upan the otheL p;trt of the case, I fail to agree with the district judge. The schooner .;howed 110 torch, as the statute orders eyery sailing yessel to do "on the approach of a steam-yessel during the night-time.". Rey. St. § -123-4:. Our sailing rules haye not the strict
and arbitrary character which the highest court in England attributes to the act of parliament, making a departure from any rule conclusive evidence of fault, though no damage has resulted from it. Stoomvaart l1faatschappy Nederland v. Peninsular ri': Oriental Steam Nav. Co. 5 App. Cas. 87u. We admit the usual exception of the admiralty law, that a fault which has had no ill consequence is immaterial. 'The Leopard, 2 Low. 238; The John H. Starin, 2 FED. REP. 100; 'The C. Whiting, 3 FED. REP. 870; The Odcr, 8 FED. REP. 172. Still great caution must be used in applying this exception. Congress has refused to relieve steam-ships of the burden of avoiding sailing-ships, however difficult it may be for large steamers to be handled readily, and however easy for some light sailing craft; but they have imposed upon the latter the duty of giving notice of their presence by certain definite means. Weare bound, therefore, to believe that the exhibition of a torch is useful under ordinary circumstances. Experts may, perhaps, be found to testify that a moderate speed is harmful, a fog-horn useless, and a torch actually misleading; but the statute must be obeyed. Accordingly, it is held in recent cases that a sailing vessel neglecting this precaution must satisfy the court, beyond a reasonable doubt, that no injury can have resulted from the omission. See The Eleanora, 17 Blatch£. 88, in which the chief justice says (p. 102,) "Nothing short of an absolute certainty that it would do no good, to be established by proof on the trial, will justify an omission to obey the rule;" and The Sarmatian, 2 FED. REP. 911; The Narragansett, 3 FED. REP. 251; S. C. 11 FED. REP. 918; The Samuel H. Crauford, 6 FED. REP. 906; The Alabama, 10 FED. REP. 394:; The Roman, 12 FED. REP. 219; 8. C. 14 FED. REP. 61; The Pennsylvania, 12 FED. REP. 914:; The Johns Hopkins, 13 FED. REP. 185. Whether all the earlier cases were rightly decided on their facts, is of no great consequence at present. The principle is clear, and must be adhered to. In this case, by holding the witnesses of the steamer to the exact accuracy of their statements, we might say that they had seen the schooner's light so early that a. torch would not have added anything to their knowledge; but there is always a strong temptation for the steamer's witnesses to exaggerate the distance at which the sailing vessel was seen, in order to show their vigilance; and it would not be just to hold them responsible for neglecting or failing to see the schooner, and at the same time to hold that they did see it so soon that a torch would not ha,e enlightened them. In tllis case there is no evidence upon either side on this point, except that no torch was shown. It does not appear whether tllere was a torch on board the schooner. One mtller significant circumstance is that the mate, who was the lookout, saw tIle danger in time to blow a fog-horn; why he did not then, or a little sooner, show a torch, he has not explained. I must therefore vary the decrce so far as to divide the damages, and it is so ordered.
BALL V. WINSLOW.
August 20, 1883.)
(Circuit Court, D. Massachusetts.
The evidence in this case, upon examination, appears to sustain the judge men t of the district court, and It is accordingly attirrned. The Blenheim, 14 FED. HKP. 797, affirmed.
OF VESSEL-TORT-TBIE AXD PLACE.
The maxim that damages for a tort are to be assessed as of the time and place at which the tort is committed, mllst be taken with a good deal of allowance, so far as the place is concerned. If a foreign ship is destroyed in American waters, and if in such a place her market value is low by reason of our navigatIOn laws, the measure of damages for her loss would be her value in the home port.
In Admiralty. Frank Goodwin, for Ball. Almon A. Strout, for Winslow. LOWELL, J. The callses of this collision are obscured by the usual conflict of testimony; but, after a careful study of the record, I concur in the conclusionR of the district judge in The Blenheim, 14 FED. REP. 7!)7, that the brigantine is not proved to have contributed to the disaster by a change of course. '1'hat her people tried to deaden her way, is proved; but, if that is all, no possible injury can have resulted from their action. I find the preponderance of the evidence to be that whatever they did was done in the last extremity, and was not the cause, in whole or in part, of the collision. The objection taken to the assessor's report, ably argued as a point of law, is rather one of fact. The valuation of $12,OUO for the ship was adopted from the evidence of two persons who were weU acquainted with her, one of whom had an interest in the result, and the other not. The experts called on behalf of the claimants, who estimated the ship at about $1,500 less, candidly admitted that they should prefer the opinion of persons who had actual knowledge. The point that the market value at Demarara should be the measure of damages, because the collision happened within a few miles of a port in that country, is not in the case, because there is no evidence from either side of such value. I will say, however, that the maxim that damages for a tort are to be assessed as of the time and place at wuich the tort is committed, must be taken with a good deal of allowance, so far as the place is concerned. If a foreign ship is destroyed in American waters, and if in such a place her market value is low by reason of our navigation laws, the measure of damages for her loss would be her value in the home market. However, that point is merely a moot one in this case. The witnesses on both sides have adopted the home market in making their estimates, and the assessor has decided fairlv and iustlv upon the ()f the evidence. Decrees affirmed.