<lther part of the ship, swept out the hold and prepared it for cargo, and they left the ship on the evening of the 19th, with regard to hatches and hatchways, as they found it; that is, the upper-deck hatches on, the between-deck hatches off, and the sliding doors open. On the morning of the 20th, a bright, clear day, about 9 o'clock, the stevedores sent a gang, of which James McGinty was "header" or foreman, to stow cargo, first in hold No.2. This gang found tbe hatches in the condition they were left the night previous by the first gang of men. They removed the hatches on the upper deck oYer hold No.2, and McGinty and his men were sent down by the stevedore to get ready to stow cargo. When about three bales of cotton were sent down, the men called for "toms," which are short pieces of wood used in stowing cargo, and one of the gang started to go through the sliding door in search of this dunnage, when McGinty said he would get the toms or dunnage for them. He went through the sliding door, and almost immediately either fell or stepped in the coal-bunker hatchway, falling about] 6 feet, and receiving such injuries thereby that he died in about six hours. There was no connection between the two stevedore gangs of the nineteenth and twentieth of September, except that each was employed by the same stevedore, under the same general contract, to prepare ship for cargo and to stow cargo. Third. It is usual and customary for the ship to furnish toms or dunnage for properly stowing cargo, and it is usual for the stevedore's men in loading.a ship, when such dunnage is not found to hand, to hunt it up, and to search through the ship therefor. There was sufficient dunnage aboard the ship,-some in hold No.2, not, however, considered of the proper length and. kind,-and there was some dunnage between-decks over the coal bunker, the same being boards which were afterwards used in stowing the cargo. Fourth. James McGinty was a longshoreman engaged in that busi. ness 12 or 13 years. Had often been engaged in loading steam-ships with cotton in the port of Savannah, and his usual earnings were six dollars per day each day that he worked, and he was generally employed. James McGinty left the libelant, his widow, and three minor children, who were dependent upon him for support. Fifth. The master of the Gladiolus, on the nineteenth and twen. tieth of September, was on board his ship. . He knew of the work done by the first gang on the 19th, and he was present when McGinty with his gang came to stow cargo. He had made no previous examination of the condition of the hatches between-decks and of the sliding doors before or at the time McGinty and his gang arrived, and he made no preparations to light the holds for the stevedore's men. He gave no orders to nor exercised any control over them. Siirth. There was no duty upon the part of the master and crew of the Gladiolus to look to the hatches and preparations to receive the the cargo, nor neglect of duty in leaving the doors open and the hatch.
THE ROYAL A.RCH.
way uncovered, through which McGinty entered and met his Injuries. Seventh. The ship, for preparations to receive cargo, and in receiving cargo, was under the control of the stevedore and his respective gangs of men. Eighth. McGinty was negligent in entering the between-decks over if light was the coal bunker without first procuring sufficient necessary. Ninth. If there was negligence in not removing the upper-deck hatches over the coal bunker, it was the negligence of the stevedore a)1d his gang when they first came aboard. And the court doth find, as a conclusion of law, (1) there was no negligence upon the part of the ship, or its master and crew, resulting in the death of McGinty; (2) that the libel ought to.be dismissed. Considering the foregoing findings of law and fact, it is ordered, adjudged, and decreed that the libel in the case of Margaret McGinty against the steam-ship Gladiolus be, and the same is hereby, dismissed, with costs of this court. Costs of the district court to remain as taxed by the judge theleof,' to-wit, to be paid by claimant.
THE ROYAL ARCH.'
(Owettit Oour', '1'. D. New York. June 12,1884.)
1. CoLLISION llETWEEN SAILING VESSELS-LIGHTS-ApPEAL-EvIDENClll.
Where, in an action arising out of a collision between two schooners, the district judge, "with some hesitation, arrived at the conc:lusion that the collision must be attributed to the omission to keep a calefullookout on the N. 1<'., and not to a failure on the part of the R. A., to exhibit the lights required bylaw;" and in the circuit court the additional proof was put in of the master of a third vessel, who at the time saw no light on the R. A. when she was ill such a position that one of her lights ought to have been seen by him. if it had been a proper Jight,-on this evidence the district court decree was reversed.
On the night of February 6, 1884, a collision. occurred on the h1gh seas be. tween two schooners, the N. F. and the R. A. The wind was from 1'.- W. to S. S. W The N. F. had her proper regulation lights set brilthtly burning, and was sailing N. by W. The R. A., which was close-hauled on the starboard tack, was seen from the N. F. when about half a mile off, but her green light, which she should have shown, was not Visible, and her course could not be then determined. She was watched, however, and as soon as her ·course could be determined, the helm of the N. 1<'. was put hard up and her mizzen. peak dropped, but the vessels were then so near that a collision ensued. The. green light of the R. A. was not properly and brightly burr;1ing. She held her course till just before the collision, and then attempted to alter it, but too late. Held. That the R. A. was in fault in not having a green light, Buch as was reo quired by law; that it was the duty of the N. F. to avoid the R. A., but she was relieved from this duty by the failure of the R. A. to exhibit any light which those on the N. F. could see before the collision j and their ignorance
lReportecl by R. D. '" Wy1l1s Benedict, or the New York bar.
of the course of the R. A., until it was too late for the N. F. to do anything to avoid the collision, was exeusable, and was produced by such fault of the R. A.; that the R. A. was solely in fault, and must be held, liable for the collision.
In Admiralty. In this case, which came before the circuit court by appeal from a. decree of the district court, the circuit court found the following fa.ctB :
(1) Shortly after·4 o'clock on the morning of the sixth of February, 1884, a collision occurred between the schooner Nellie Floyd and the schooner Royal Arch, by which both vessels were seriously damaged. The former was bound from Georgp.town. South Carolina, to New York; the latter from Wiscasset, Maine, to Baltimore, Maryland. 'rhe collision took place on the Atlantic ocean, at a point about S. S. E. from the Navesink Highlands, off the coast Qf New Jersey. (2) .At the t,ime the night was dark, and the weather was somewhat hazy, but lights of vessels could be seen at a considerable distance off, alid if of the character required by law, and capable of being seen on a dark night with a clear atmosphere at a distance required by law, could be seen at the time in question, by; pl'oper observ&s, at a sufficient distance off to enable a collision to be avoided by them. 'rhe wind was from S. W. to S. S. W., blOWing a fresh breeze. Previous to and at the time of the collision, the Nellie Floyd had her regulation side lights properly set and brightly burning, and a competent and Vigilant lookout properly stationed andfaithfuny attending to his duties. She was sailing free, on her port tack, at a speed of about six or seven miles an hour. For about an hour before the collision she had been steering by compass N. by W. The Royal Arch was sailing close-hauled on her starboard tacks, at a speed of from three to fonr miles an hour. (3) 'rhe Royal Arch was first discovered by the Nellie Floyd when distant about half a mile, bearing off tho Nellie Floyd's port bow. Although the Royal Arch had her regulation lights set and burning, hel' green lip;ht on her starboard side. (wbicll was the light which would have been visible to those on the Nellie Floyd if it had been of the character required by law, and capable of being seen on a dark night, with a clear atmosphere, at the distance required by law,apd\vhich could have been seen at the time by those on board of the NeHie it had been of the character required by law, and capable of being seen .on a dark night, with a clear atmosphere, at the distance required by law,) was not seen by those On board the Nellie Floyd, although they wertl vigilant and attentive to their duty in looking out for vessels and lights, for'the reasorithat such green light of the Royal Arch was not of the bylaw, and was nl;lt (japable of being seen on a dark night, with a clear atmosphere, at the distance required by law, and was not of such a character a!\.to b1;ightness that it could have been seen at the time by those' on board ,Of the Nellie Floyd in season for them to avoid a collisiqn. ',rhose on the Nellie Floy.d were Vigilant and attentive to their duty; but not seeing any lights on.the Royal Arch, saw nothing of her till they saw her sails, and then were' unable tO'determine what course the Royal Arch was on, and she was reported by the lookout as a sail on the weather bow, From the time sbe waS firstdlScovered and reported to the time,of the collision she was continually watcl:i,edJl'om the Nellie Floyd, the master of the latter using his glasses. ,. .. .'. · (4) As floqa course of A,l'ch could be determined. ,the helm of the NenieFIQyd'was,put hard up and her mizzen-peak was dropped, and although .she feU :off,still. the vessels ware so close to each other that. the Nellie'Floydcould'Mt avoid the (5) AtIlo time ·after the Royal Arch was first discovered from the Nellie Floyd were any side lights or any other light upon the Royal Arch visible to
'l'BJI nOYAL AnCH. ,.:
or capable being' seen by those on board of the Nellie Floyd, and the latter were, both prior to that time and during all that time, exercising proper vigilance, watchfulness. and attention in looking for some light upon the Royal Arch down to the time of the collision. (6) The red light of the NeIlie Floyd was seen from the Royal Arch threequarters of a mile off, about three points off her starboard bow. Nothing was done on board the Royal Arch to avoid a collision until it was too late, although the courses of the vessels were such, if continued, as to render a collision inevitable. After the red light of the Nellie Floyd was discovered from the Royal Arch, there was time enough before the collision for the Royal Arch to change her course, and' avoid a collision, by putting her helm hard down, provided the Nellie Floyd should keep her course. The Royal Arch kept her oourse until just before the collision, when she attempted to alter it so as to avoid a collision, but there was then not sufficient time for her to lllake a successful change.
And on the foregoing facts the circuit court found the following conclusions of law:
(1) The Royal Arch was improperly navigated, in that she did not have her regulation side lights, and especially her green light, properly and brightly burning, and for that reason she was the sale culpable cause of the collision. It washer duty to keep her course, as she did, on seeing the red light of the Nellie Floyd. It was the duty of the Nellie Floyd to avoid the Royal Arch, ,but she was relieved from such duty by the failure of the Royal Arch to exhibit any light which those on the Nellie Floyd could see befOre the and their ignorance of the course of the Royal Arch, until it was for the Nellie Floyd to do anything to avoid the collision, was excusable, and was produced by such fault of the Royal Arch. (2) The Nellie Floyd was, in every respect. properly and carefully navigated. and in nowise caused, or tended to cause, the collision. (3) 'fhe decree of the district court must be reversed, and a decree be entered for libelants, for their damages, with interest, and their costs in the district court and in this court; such damages to be ascertained br a reference in this court.
Owen c/; Gray, for the Nellie Floyd. Goodrich, Deady c/; Platt, for the Royal Arch. Accompanying the foregoing findings was the following opinion: BLATCHFORD, Justice. The district judge, in his opinion,! states that after a careful examination of the testimony, and with 'some hesitation, he has arrived at the conclusion that the coHi/lion was attributable "to the omission to keep a careful lookout on the and not a failure on the part of the Royal Arch to exhibit the lights required by law." The testimony was, none of it, taken in court before the judge, but all of it by deposition out of court. In this court there has been added to the proof for the libelants the deposition of the master of a vessel which was sailing on the same course with the Nellie Floyd at the time, and just behind her; and who, though using
The opinion of the district court was as follows, (filed March 1,1884:) J. After a careful examination of the testimony, and with Bome hesitation, I have arrived at the conclusion that the collision' in question must be attributed to the omission to keep a careful lookout on the Nellie. Floyd, and not to a failure on the part of the Royal Arch to. exhibit the lights required by law. The libel agninst the Royal Arch must therefore be dismissed, and the libel aga,inst the Nellie Floyd sustained. The prevailing party must recover his costs.