between the Cyclone and Locke was equal to that between the Cyclone and the Oregon. Thus, the facts and circumstances attending the collision point to the conclusion that such caution was not used in the matter of speed as the situation required. In so dense a fog, especially as the steamer had vessels in tow stretching out 500 or 600 feet behind her, I think it would hardly be unreasonable to say that it was her duty to stop long enough to listen for sounds from vessels that might possibly be approaching. At any rate, she could only properly run at such speed as would enable her to stop as soon as the close proximity of a vessel was known. In the case of The Pennsylvanin, 19 Wall. 125, the supreme court said that what is moderate speed "may not be precisely definable. It must depend upon the circumstances of each case. That may be moderate and reasonable in some circumstances which would be quite immoderate in others. But the purpose of the requirement being to guard against danger of collisions, very plainly the speed should be reduced as the risk of vessels is increased. In the case of The Europa, Jenkins, Rule of the Road at Sea, 52, it was said by the privy council: 'This may be safely laid down as a rule on all occasions, fog or clear, light or dark, that no steamer has a right to navigate at such a rate that it is impossible for her to prevent damage, taking all precautions at the moment she sees danger to be possible; and if she cannot do that without going less than five knots an hour, then she is bound to go at less than five knots an hour. lit lit . " , "And," says the court further, "even if it were true that such a rate [speaking of seven miles an hour] was necessary for safe steerage, it would not justify driving the steamer through so dense a fog, along a route so much frequented, and when the probability of encountering other vessels was so great. It would rather have been her duty to lay to," In the case of The Western Metropolis, 7 Blatchf. 214, WOODRUFF, J., held that if the night was either so dark or so foggy that, by slowing, stopping, and backing as soon as the schooner was observed. the collision could not be avoided, then the steamer was moving at too great speed. 1.'he case of The Eleanora, 17 Blatchf. 88, is directly in point upon this question. There. as appears by the opinion of Judge BLATCHFORD, then judge of the district court, (pages 91, 92,) the steamer, when the fog, which was very dense, came on, reduced her speed to five and a palf miles an hour. The master, first mate, two seamen. and a lookout were listening attentively for sounds of fog-horns, and looking attentively for lights. Neither the steamer nor the vessel collided with became conscious of the presence of the other until just before the collision. Judge BLATCHFORD said:
"If the steamer had been going at less speed, or had gone abead a short distance, and then stopped still and listened, and thus made her speed, or her passage from point to point through the intervening space, and not merely hllr running rate while in forward motion, that· moderate speed' which the
Matute requires, it is quite apparent that, blowing her whistle continually. at proper intervals, the blast would have been heard by the schooner, and 8wered by the fog-horn over the starboard side of the schooner, in sufficient season for the steamer to have stopped and backed, and be brought to a stand-still, before reaching the schooner. Therefore the steamer was in fault as to her speed."
This view was approved on appeal by Mr. Chief Justice said:
..A simple slackening of speed by a steamer in a fog Is not always enough. She must run at a moderate speed, and is never justified in coming in collision with another vessel, if it be possible to avoid it. This implies such a speed only as is consistent with the utmost caution. Having complete control of herself, and being capable of so much damage if a collision does take place, the law has imposed on her the obligation of so directing her own movements, in the midst of the uncertainties of a fog at sea, as to be at all times under easy command. If she fails in this, she must suffer the consequences. Her rate of speed must be graduated according to the circumstances. The more dense the fog, the greater the necessity for moderation. The object is to keep her, if possible, under such control that she can be stopped after another vessel, with which she is in danger of collision, may be seen, or otherwise discovered. "
This case in many of its material facts is remarkably similar to that at bar with respect to both the speed of the steamer and the duty of the schooner to display a torch light, and may well be considered authoritative upon the questions decided. 2. Was the Mott in fault? The testimony shows, in the first place, that she was sufficiently manned, and that the measures which were taken by the master for her safe navigation were such as good seamanship prompted. When he came on deck at 11: 30, which was at least 45 minutes before the collision, he took a position on the roof of the cabin, and, after the necessary observations, and before the Oregon's whistle was heard, he directed the watch below to be called to shorten sail. The mizzen-sail was reefed, and the light sails were clewed up. All hands were on deck, and were engaged in this work, except the mate, wheelsman and lookout, who were at tneir respective posts of duty. The master says he ordered this to be done so that fog-whistles might be more plainly heard and sounds located. He further testifies that he took the bearings of every whistle of the Oregon, and that when he heard the first whistle it bore south of the Matt. The next appeared to bear a little west of south, and another S. W. by W. from the Mott, two or two and one·half points abaft of her beam. In this he is corroborated by others of the crew, who heard the whistle, and noticed its bearings, but probably not with the care of the master. He says he concluded the steamer was going wost, and astern of his vessel, and that therefore it was safe for the Mott to keep her course. Although the courses and distances of llound in such circumstances are apt to be misleading, from the best evidenre the master had of the location of the steamer, and with the
care he exercised, I tbink he was justified in continuing on bis course. Erroneously locating a vessel by the sound of her whistle in a tog is not necessarily a fault. The Lepanto, 21 Fed. Rep. 656. Lights could not be s!len. The master had to be guided by sound. His vessel was on the starboard tack, and the circumstances might wf,ll lead him to the conclusion that a change of course would in· crease the hazard. The Matt was going at a moderate rate of speed, and as soon as the master knew of the immediate proximity of the steamer, and perceived that a collision was imminent. he put the wheel of his vessel down, and luffed her up into the wind. Upon the liabilit,y to mistake, and the possible causes of mistake, in locat· ing a vessel by the sound of her fog signals, see the very interest. ing opinion of Judge BROWN, of the Southern district of New York, in the -case of The Lepanto, supra. Upon a careful examination of the evidence, I am convinced that there was no neglect on the part of the lookout of the Matt in the use of the fog.horn. Before the master came on deck, and from the time the fog came on, the horn was sufficiently sounded. The look· out stood forward on the starboard side. It is true that the mate and lookout, before the watch below were called, took in the jib topsail and fore gaff topsail, but this was at about 11: 30 o'clock, and before the whistle of the Oregon was heard; a.nd, according to the testimony, the lookout was thus engaged only two or three minutes, -and the work did not call him but a few feet away from the place on deck which he occupied as lookout. When the whistle of the Oregon was first heard the master says he directed the lookout to blow long and distinct blasts, and that this was done. The second mate and the lookout went out on the jib.boom, and furled the jib topsail while others of the crew were doing other work on deck, but during this time the mate had the horn, and continued the blasts at short and regular intervals. This was about 12 o'clock, and a careful review of the evidence satisfies me that there was no want of diligence in the use of the horn from the time the fog came on, soon after 10 o'clock, down to the time of the collision. The Matt did not show a torch light, and, under the decisions, this, I think, was a fault which throws upon her a share of the responsi. bility for the collision. Section 4-234 of the Revised Statutes provides 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." It is only where it clearly appears that the exhibition of a torch.light could not have served any useful purpose, or given any additional information as to the position or course of a sailing vessel, that the omission to comply with this section can be held to be immaterial. The Margaret, 3 Fed. Rep. 870; The Leopard, 2 Low. 24]; Kennedy v. The Snrma· tian, 2 Fed. Rep. 911. If it is doubtful whether the exhibition of a torch-light would or would not have conveyed information to the
steamer for avoiding a collision, then the doubt must be resolved against the vessel which failed to comply with the statutory requirement. I cannot find as a fact in this case that a torch shown bv the Mott would not have been seen by those on board the Oregon;" and for this reason, if for no other, I must find the Mott guilty of contrib. utory fault. The Crawford, 6 Fed. Rep. 911; 'I'll(, Excelsior, '12 Fed. Rep. 203. The witnesses differ as to the distance a light could be seen on the occasion in question. The second mate of the Matt says the lights of the steamer could not be seen plainly 200 feet away. The look· out says a torch-light could not have been seen through the fog more than the distance of a vessel's length. The master places the distance at 100 feet. Thtl master of the Oregon thinks it might have loomed up 500 feet off. The master of the Matt knew, from the repeated whistles, that there was a steamer in the neighborhood. He could not locate. her, but he had occasion to know that it was possible she might be near by, although the sound of her signals indicated that she was going off to westward. It was an occasion for the greatest precaution. In the case of The Eleanora, supra, the schooner had her colored lights set and burning, but Judge BLATCHFORD found as a fact that they were not seen at any time from the steamer, nor could they, or the lights of the steamer, have been seen, in such a fog as prevailed, at any useful distance. The master of the schooner came on deck very shortly before the collision. The persons on deck were listening and looking. They had a fog-horn, and it was being blown at proper intervals. In the opinion of the court, Mr. Chief Justice WAITE said that the schooner "was sailing in what she knew, or ought to have known, was a common thoroughfare of approaching steam-vessels at the time. Their fog signals were heard from various directions, and she was heading on a course crossing their regular tracks. The statutory rule is imperative. · .. .. No sailing vessel has a right to disregard this regulation because she thinks it unimportant. If she knows of the approach of a steam-vessel, she must exhibit the light, or take the risks of loss occasioned by its absence. .. · .. If exhibited, possibly the torch might not have been seen far enough away to have done any good, but such a possibility furnishes no excuse to the vessel for its absence. Nothing short of an absolute certainty that it could do no good, to be established by proof on the trial, 'will justify an omission to obey the rule. In a fog, all vessels must do all that is required of them by law or usage. While more is demanded of a steamer than a sailing vessel, it is as important that the sailing vessel should obey all the rules prescribed for her as that the steamer should not neglect those which are to govern her. Actual safety is depAndent upon a strict performance by each of all their respective duties. .. · .. It was not proper to assume that the torch· light would have done no good. It was her duty to exhibit such a