Island. She had been lying in the same position for three days awaiting her discharge. During this interval many steamers must have passed back and forth, at all times of the tide, several of them of equal size with the Rhode Island; and the Rhode Island during this interval probably passed there twice herself; and none of these had previously done any damage. On the day in question the Rhode Jsland was some five or six hours behind time, having been delayed (bring the night by fog. Her engineer says that her time from Hallett's Point to her pier in the North river, a distance of 9 or 10 miles, was made in 32 minutes, which would be her full speed of 18 miles per hour. The engineer and the captain testify, indeed, that her speed was reduced from 19 revolutions per minute, her full speed, to 15 revolutiona per minute, in passing this part of Blackwell's island, where the west "branch of the river is only from 800 to 900 feet wide. But the engineer, at least, speaks from his general habit only, and not from recollection of this occasion. Two other witnesses upon the shore testify that the steamer appeared at this time to be going at unusual speed. Considering that no previous damage had been done, the fair inference to be drawn from all the circumstances and the testimony is that the Rhode Island on this occasion was going at her full speed, which was an unusual and improper speed for this locality, and that this speed caused a greater swell than common, and thereby produced the accident. Upon this ground the libelant is entitled to recover. I A l'eference may be taken to compute the amount, if not agreed upon.
THE S. B.
THE PENNSYLVANIA. McLAltEN and others, Owners, etc.,
(Oircuit Oourt, E. D. Pe1insylvania. April 7, 1885.)
The steamer in this case being guilty of negligence in running at full speed on a dark and foggy night, and the schooner also being negligent in not havlUg on board and displaying a torch, held, that only half damages should be allowed, and that the costs should be apportioned.
Appeal in Admiralty. See S. C. 12 FED. REP. 914, and 15 FED. REP. 814. J. Wan'en Ooulston, for libelants. lII. P. Henry, for respondent. McKENNAN, J. On the night of July, 23, 1878, the schooner S. B. Hume was on a voyage from New Brunswick to Gloucester, England,
THE S. B. HUlIE
and was sailing on a course E. S. E., and in an eastwardly direction. The night was dark, and the atmosphere thick and foggy. The wind was south-west strong, and the speed of the schooner was about seven knots an hour. She had all the required lights properly set and burning; it starboard watch was on deck, under the command of the second officer; a competent lookout was on duty; and a fog-horn was blown at proper intervals. Such was the condition of the atmosphere that vessels could not see each other at a greater distance than one-fourth of a mile. When the schooner observed the mast-head light of the steamer the vessels were in close proximity, and the helm of the schooner was put hard a-port. This caused her to luff up, and changed her course more towards the south. The course of the steamer was W. by N., and its general direction was westwardly. She was under "full speed bells," making between nine and ten miles an hour, when the red light of the schooner was first seen about one point on the starboard bow, and about four lengths of the ship distant. She then reversed at full speed, with her helm harer a-port. But these maneuvers were ineffective to avoid the collision, the stern of the steamer striking the schooner twice on her port side , thereby causing her to fill with water, and rendering the vessel and cargo a total loss. The collision occurred about midnight, in ocean. The schooner was not provided with a torch-light, and there-' fore did not display any at any time while the vessels were ing each other. The facts thus found are, in my judgment, decisive of the this case, and it is not, therefore, deemed necessary to burden the' record with others which might be deduced from the voluminous e'vidence, and which, if not of unimportant pertinency, are at least itldecisive in their effect. The steamer was in default in pursuing her voyage at a rate of speed clearly excessive, under the circumstances. The night was dark and the atmosphere thick with fog, so that approaching vessels could not see each other until they were in dangerous Such was the case here, as neither vessel saw the other until they were so close as to render a collision almost unavoidable, although both of them seem to have employed the customary means of giving warning of their approach. With existing conditions, to move under "full speed bells" at the rate of nine or ten milesaIlhour was manifestly incautious, if not positively perilous; hence It. reduction of speed to a moderate rate was a primary and imperative duty on the part of the steamer. If this had been observed, the collision would not have occurred. The master of the steamer himself admits this in his testimony, for he says that with a speed of nveor six miles an hour he could have avoided the collision. But certainly, with a reduced rate of speed, the vessels would have been so far tant from each other that a collision could not have occurred when and as it did. And this fundamental fault of the steamer is not averted or mitigated by anything in the evidence.
Is RllY contributory fault imputable to the schooner ?The law imptlratively required her to have on board a torch-light, and to light and display it to an approaching vessel. She had no such torch, or, if she had, none was exhibited, and in this she was confessedly derelict.. 'She was therefore presumptively guilty of contributory negligence. Nor is this presumption repelled by the suggestion that the red light of the schooner was seen by the steamer before, or as soon as, a torch-light could have been seen by the latter. If the torch-light had been displayed when the mast-head light of the steamer was first sighted, her officers would have seen the glare of its flash before the red light came into view, and in time, probably, to determine the direction of the schooner, and thus have aided the officers of the steamer in averting the collision, either by reversing the engine or by altering her course. Both vessels having been thus culpable, there can be a decree for only half damages in favor of the schooner. In the district court the oosts were apportioned, and this is earnestly opposed here. With the conolusion reached by the learned judge of the district court I am entirely satisfied, and I therefore approve and adopt the opinion delivered by him on that question. The disallowanoe of one-half the damages sustained by the schooner is due to her culpable negligence, and is therefore, to that extent, practically an adjudication against her. That she should be subject to the usual consequences of an adverse jlldgment, in whatever form it may be rendel'ed, seems to me to be consonant to both reason and justice. So it seems to have been regarded in this district for many ;years, and by the supreme court in The America, 92 U. S. 432. A decree will therefore be entered in favor of the libelant for $7,684.13, with interest from January 24, 1883; the costs to be taxed, apportioned, and paid as decreed by the diBtrictcourt.
(District Court, E. D. Pennsylvania. May 18, 1885.)
TOWAGE-NEGLiGENCE-CONTRIBUTORY NEGLIGENCE-RUNNING AGROUND.
On examination of the eVidence, held, that the defense of contributory negligence is not made out, and that the libelant is entitled to damages.
In Admiralty. Gibbons et Henry, for libelant. H. R. Edmtmds, fqr respondent. . . BUTLElh ;1,·.. The bark Osage anchored near the breakwater, in the ))ela.warebay, and SOOlf. after engaged the respondent to tow her to Philadelphia. Tpe bark's hawser was taken, and the tug started on her coUrlle. A short. time after, the bark struck bottom, the hawser
THE OSAGE V. RIDGWAY.
parted, and she drifted upon the shoals, sustaining some injury, and being subjected to considerable charges in getting off. Compensation for this injury, and these charges, she claims from the respondent. The defense is that she was anchored in a dangerous place, from which she could not be removed without striking, and that the hawser was defective. The first branch of this proposition is not sustained by the evidence. While,the testimony of Capt. Hallenger, of the tug, tends to support it, he is not sustained by surrounding circumstances, and is flatly contradicted by several witnesses, who swear directly and positively to the fact. It seems incredible that Capt. Hallenger should have said nothing of the danger at the time, if it existed. It concerned hiM very seriously, as well as the libelant, imposing, as it did, on both the necessity for especial caution in the work about to be commenced. He accounts for his silence by saying that he desired to avoid the appearance of forcing his services on the bark, or exaggerating their importance. This is an admission that he believed the bark to be ignorant of her danger,-that she had not touched bottom at the time; and is furthermore indicative of q. degree of modesty very unusual in the captains of tug-boats. To withhold such information, under such circumstances, would be highly improper; and it cannot be believed that any captain would do it. The master of the bark and his officers say he entered the bay in pursuance of the directions in the chart, taking bearings from the breakwater light, and sounding as he proceeded and came to anchor. There is no reason, in my judgment, to doubt that he anchored where his testimony points out,-a place showing three and one-half fathoms at low water, marking, as the witnesses say, about five fathoms when he reached it, the tide then being up. But if it were true that the bark lay where Capt. Hallenger alleges, this fact would afford no excuse. He knew the locality familiarly. If it was not safe to undertake her removal at the time, he was guilty of gross negligence in attempting it without informing her master, and thus allowing him to judge of the risk and the propriety of moving, or remaining where he was. He also knew that in a short time the tide would be up, and her removal, with proper care, be entirely safe. He had but to wait for a brief period, and then bear southward to find ample water. Instead of this he concealed the danger, started with the water at its lowest condition, and, according to his own statement, ran a course that necessarily must, as it would seem, take him into shallower water. The other branch of the respondent's proposition-that the hawser was defective-is no better supported. The decided weight of the testimony is. against it. Bringing the hawser into court for inspection is not a proper method, of ascertaining its condition; the question is one for experts. To the extent such information is before me, the conclusion is against the respondent. The hawser appears to have been nearly new, and amply sufficient for towing the bark
:while afloat. If the master of the tug expected to tow her on the bottom, (at times,) as may be inferred from his testimony, he should have so informed her master, and exel'cised extraordinary care respecting her fasLvlliugs. It might have been a serious question, under the circumstances, whether one hawser, of ordinary strength, would be sufficient. It is unnecessary to enlarge on the subject. As already indicated, I believe the bark was safely anchored, with ample water for maneuvering and getting away; that the hawser was of onlinary strength, and that the disaster occurred from the tug's failure to keep sufficiently southward in starting, hugging the shoals too closely, in the desire to shorten his course; but that, if the master, Hallenger, is right respecting the bark's anchorage and situation, then it resulted from his failure to await the effect of the tide, and to inform the bark of the danger in moving at the time. A decree must be entered in favor of the libelant
(Dist1'ict Court, E. D. Pennsylvania.
COU,JSJON-SCHOONER-BARGE AT ANCHOR-DAMAGES.
Where a schooner runs into a barge at anchor the burden is on the schooner to rebut the presumption of negligence on her part. Schooner held liable.
In Admiralty. Coulston eX Driver, for libelant. H. R. Edmunds, for respondent. BUTLER, J. The burden of proof is on the respondent. Running into the libelant, lying at anchor, the respondent must repel a presumpt.ion of negligence, or make good the loss. She has sought excuse by appealing to her situation at the time, and her efforts to avoid collision. I find nothing in these c..ircumstances, however, tending to relieve her. She knew that the William and James was aground on the southern side of the channel, or entrance to the canal, materially in the way; she knew also that boats habitually lay along the the northern side of the entrance; saw as she came down the pier !iver the stack of a tug there, and should have seen the tall derrick of a barge, and have anticipated the presence of other similar vessels by her side; and, in the condition of the tide and direction of the wind, she should not have attempted to enter without careful reconnoissance, and ascertaining that she could do so with safety. It seems quite plain that tqe collision resulted from the fact that the mind of her master was so intent upon the danger threatened by the situation of the William and James that he failed to observe any precaution respecting the opposite side. Thus, with his eyes upon the grounded