THE ALHAMBRA. THE RHODE ISLAND. PROVIDENCE
STONINGTON S. S. CO.
QUEBEC S. S. CO.
THE RHODE ISLAND.
(GirlJuie Court, 8. D. NfAlJ York.
COLLISION-CONFLICT OF EVIDENOE.
October 11, 1887.)
The side-wheel steamer.R., moving 15 knots, on a W.;+ S. course, corrected compass, and the. right-hand propeller A., with a speed of 9 knots, on a COUrSt E. by N., corrected compass, discovered each other, about 2 A. M ·· Rt a distance ohbout 3 miles, when 12 nautical miles to the eastward of the Stratford shoal light, Long Island sound. The night was fairly clear, the wind light, and the wl:\-ter smooth. Each steamer was on her regular route, .and was in charge of skillful officers, familiar with.the sound. Each had a competent lookol.\t, in . prop6r.position.'. and each had all herreg ulation lights properly set and bll.rn. ing. The vessels came intocollision at nearly right angles;. the stem of the A. striking the port side of the R. amidships, just aft of the paddle-box. At the moment the R; was heading from one to three points west of north, and the A. from one .to three· points north of east. The testimony as to all the other material facts was in irreconcilable conflict. The theory of the A. was that the vessels were approaching each other showing lights, green to green, for five or six minutes, until the R., when so near that a collision was inevitable, changed her .course to northward, across the bow of the A. Upon the theory of thll R., the steamers were approaching each other> lights red to red. for slx or seven minutes, until within half a minute of the collis· ion, when the A.' suddenly changed her course across the R.'s bow, rendering the accident unavoidable. These opposing theories were supported each by thesll-me number of witnesses, and the witnesses appell-red to be correspondingly intelligent, and to hll-ve had equll-I opportunities for observation. The only. disinterested witness in the case, however, was a skillful navigator, who was a passenger on the A., and whose testimony was consistent, and made strongly against the R. In addition, the pleadings of the R. set out her the· ory of the collision generally, omitting evidential facts, while the statement of the A/s theory in her pleadings were full and detailed. The witnesses of the R. testified in open court, while those of the A. did not; their testimony being read. The district court fOUlld for the A. in both cases, there being cross·bills. Held, on appeal, that the finding should be affirmed.
In Admiralty. On appeal from district court. 25 Fed. Rep. 846, affirmed. TVheeler H. PeckluLm, for appellants. Thomas E. Stillman and WilhemWl Mynderse, for appellees.
WALLACE, J. Cross-libels were filed by the respective owners of the steamers Rhode Island and Alhambra, to recover damages sustained by reason of ltcollision between the two steamers which occurred on Long Islandsonnd, opposite New Haven, July 18, 1882, about 2 o'clock A. M. The cause's were tried together in the district court. The district oourtdecreed in favor of the owners of the Alhambra, and the owners of the Rhode Island have appealed. The Alhambra left New York about 6 o'clock in the evening of July 18, 1882,boUlidfor Halifax. She was engaged in the transportation of
passengers and cargo between the two ports, and her regular route was through Long Island sound.. The Rhode Island left Providence on the same evening for New York. She was engaged in carrying passengers and cargo, and her regular route was through Long Island sound. The collision occurred about 12 nautical miles to the eastward of the Stratford shoaHight. The Alhanibra passed that light.at 12:40 A. M., about three-fourths of a mile on the southerly side, taking a course E. by N., corrected compass. Her speed was about nine knots an hour. The Rhode Island passed Little Gull island at 11:52 P. M., passed Plum island, and shaped her course for Stratford shoal light on a W. ! S. course, corrected compass; Her speed was about 15 knots an hour. :While the" steamers were upon these courses, respectively, they discovered eayhotheratadistance of about miles.: The night was fairly clear, the wind was light, and the water was smooth. Each steamer was in charge of competent officers, who were familiar with the route. Each had a. competeht lookqut, in proper position, anp.:each had all her regulationlights properly set and burning. The navigation of the Alhambra was in charge of Mr. Dodd, her chief officer, .who·was on the bridge. With him oh the Mr. :ijayden, ,who h1teqded to join the vessel as mate at Halifax,iandwhom Mr. Dodd was instructing respecting thEdightson the shore. of the Alhambra ,was on the bridge, a competent se;tman was stationed at wheel. .rhe third engineer was in charge of the engine; The engiue-room was connected with the telegraph. quartermaster. was at the Wheel,:anq.1I(r. a pilot; waa him in the pilothouse., The c/lrptain, Mr. lying partially undressed on the lounge iilhis morn which opened hi!Qthe 'pilotJiouse, the door between being open. When the steamers ,first discovered."each other, each was reported byth,e'lookbut of the othet, Rnd :tibserved by those in hel: .. Alhambra 220 feet in length. She had a .right-hand propeller, and, when going ather usual speed,required abol1t/t}'Vo.ininute.!l to and stop her 'The Rhode.l$land,was a sjde-wheel headway after steam-boat, 340 feet long. She turned very rapidly on her wheel, and wollld turn two and.'pJ;le,half in the first ,;1.2 and more rapidly thereafter. When the steamers came into collision tQe Alhambra was heading from one to three: north of. east, and the Rhode Island was heading fl'Qm one to three points They collided at nearly right angles, the stem of the Alhambra coming into conwith. the port siqe of. .the' Rhode just aft of the paddle-box. VeryseriQusinjUjl'ief;lwere each steamer. . the testimoqyestablishes the other . lllaterial facts which. enter-into thedecision oHhe ,case are, involved ina ,QQI;l.fj.ict 9f testimony irrecon.cilable that. it has seemed douptful whether any satisfae:to,r,y.conclllSioncan be reached as to where the truth lies. The Alhambra's theory of the collision is that, being on an, E. by N. course, Qompass, she discovered the .];thode Island's red, green, lludm/¥lt-.hf;JadJi,ghts bearing aqouttbJ:ee-quarters of a
point on her starboard bow, and three miles away. The red light dis.. appeared, leaving the Rhode Island's green light a little further on the Alhambra's starboard bow. The Alhambra srorboarded half a point, so as to bring her course to E.by N. ! N., and then steadied; that while on that course for several minutes the Rhode Island's green light continued to broaden on the Alhambra's starboard bow, until it bore about three points on the starboard bow; that then the Rhode Island, being not a quarter of a mile distant,suddenly shut out her green light, and red light, giving at the time one blast of the whistle; that immediately the Alhambra replied with one blast of the whistle, and the mate at the same time ordered her engines to be reversed; that the mate ordered the wheel to be ported, but before the order was executed he revoked it, reflecting that the engines were reversed, and gave the order to hard a-starboard the wheel,so as to cause the head of the vessel to fall when her engines were reversed; and that the latter order was to the executed. The Rhode Island's theory of the collision is that, being on a W. ! S. CQurse, corrected compass, and heading for the Stratford shoal light,l>he saw the red and mast-head light of the. Alhambra bearing about three-fourths of a point on her port bow, about three and one-half miles distant; that thereupon she gave one whistle,and ported five-eighths of a point, so as to bring her course to W. IN., corrected compass; that her signal of one whistle was immediately answered by one whistle from the Alhambra; that she steadied upon her course, and continued upon it, the Alhambra's red light being always on her port bow, without much change of bearing, until suddenly the Alhambra's green light was seen on the port bearp, her red light being Shutout, and apparently not onefourth of a Illiledistant; whereupon the Rhode Island put her wheel but was unable to avoid a collision, and that the collision,' ochard curred in or.eight seconds lJ,fter the wheei.was over. Upon the theory of the Alhambra the vessels were approaching each other showing lights green togroen for five or six minutes, until the Rhode Island suddenly changed her course to northward, across the bow of the Alhambra, when so neall as to rend(;lr a collision inevitable. Upon the theory of the Rhode Island the steamers were approaching each other, lights red to red, for six or seven minutes, until within half a minute of the collision, when the Alhambra. suddenly changed her co.urse to northward, across the Rhode Island's bow, rendering the collision inevi table. The testimony does not disclose acirCUill$tance in the situation which why such a movement should have furnishes a reasonable been thought of, much less attempted, on the part of either vessel. Thus each charges the other with a fault .so inexplicable, so flagrant, and so. suicidal that H is almost incredible that the competent seamen to whom-it is attributed cOl.lld have committed it. Such an accusation Garries upon its face such evidence of improbability as to create a cogent presumption against its truth. Res ipsa loquitur. Neither party could expect to succeed in convicting his adversary of such an accusation, except upon the most convinciilg testimony. But the peculiarity of the cape istQat the accusation upon one side is met by a similar accusation
upon the other. Thus the improbabilities against'the case of the one party are counterbalanced by those against the case of the other. The case of each vessel, as to the disputed facts, is supported by the same number of witnesses, and the witnesses for each seem to be correspondingly intelligent, and to have had equal opportunities for observation. As to the course of each vessel at the time she discovered the other, and the first change of dourse by each vessel immediately thereafter, the man at the wheel of each is measurably corroborated; the wheelsman of the Alhambra by her chief officer, and the wheelsman of the Rhode Island by the pilot. As to the distance the vessels were apart when each discovered the other, there is no conflict practically in the testimony; but as the distance is located wholly by the appearance of the lights of the vessel approaching, they may have been nearer to or further from each other than the witnesses state. As to the bearing of each vessel on the other when first discovered, when the first change of course was made by each, and when *e alleged change was made immediately preceding the collision, the case for the Alhambra rests upon the testimony of the lookout, the chief officer, the mate, and Mr. Hayden, all of whom sub-stantiallyagree in their narrative; and the case for the Rhode Island rests upon the testimony of the lookout, the quartermaster, and the pilot,who substantially agree in their narratives, and who are materially corroborated by Capt. Mott. Although Capt. Mott was not in the pilothouse when the lookout first reported the Alhambra, he testifies that he heard the exchange of signals between the two vessels, and he then proceeded leisurely to dress himself, and had finished doing so, when he heard the pilot say to thewheelsman: "That ship has shut her red light out, and is showing the green one; put the helm hard a-port;" and that he then stepped immediately into the pilot-house, and saw the Alhambra showing her green light on the port side of the Rhode Island, a trifle forWard of a-beam, apparently about 300 feet away. It is impossible to reconcile the testimony for the respective vessels respecting the location and maneuvers of each, after they first discovered each other, upon any theory consistent with the integrity of the witnesses. A mistake may exist on the one side or the other as to the exact course of the respective steamers when they first discovered each other, as 'to the change of course made shortly thereafter, as to the distance they were apart when this change, and the change just before the collision were made, and possibly as to the time when the signals were exchanged. But it is impossible that the witnesses for the Alhambra can be mistaken in supposing that they saw the green light of the Rhode Island for several minutes on the Alhambra's starboard bow, or for the ,witnesses for the Rhode Island to be mistaken in supposing that they saw the red light of the Alhambra on the Rhode Island's port bow for the same period, or for either to be mistaken in locating the other on the southward, and attributing to her the abrupt change to northward which produced the collision. There is no middle ground upon which the conflict in the testimony can be reconciled. One of the vessels was the movements of the other, and guilty of gross neglect in
made a sudden change of course in the confusion and 'excitement incident to discovering the situation, when the vessels were within a short distance of each other; or one seeing the other all the time, and mistaking her distance or rate of speed, attempted a movement across her bow for some reason which is only a matter of conjecture. Upon either hypothesis, those who were culpable of this gross breach of duty cannot vindicate themselves except by falsifying the facts. No doubt is entertained that the testimony does not warrant a decree for damages in favor of the Rhode Island. In the most favorable view for her of which the case seems capable, the testimony for the Rhode Island does not overcome that for the Alhambra, and it can only be maintained that the testimony on both sides fails to disclose which vessel was in fault. In the number of the witnesses, in their apparent intelligence and opportunities for observation, in their truthfulness, so far as this can be ascertained from a critical examination of their testimony, and upon the probllibilitiefl whmh may fairly be indulged from facts which must be treated as established by the testimony, the case for the Alhambra fully meets and counterbalances the case for the Rhode Island. Incases of inscrutible fault, notwithstanding much opinion to the contrary, there should not be a division of damages; but, as was held by Judge BLATCHFORD in The Breeze, 6 Ben. 14, it is only when the vessel sued is affirmativelyand specifically held to be in fault, either solely or jointly with some other vessel, that she should be condemned in any damages. The Grace Girdler, 7 Wall. 196; The Catherine of Dover, 2 Hagg. 154; The Maid of Auckland, 6 Notes Cas. 240; The Swmmit, 2 Curt. 150. More doubt ex:ists whether tQe testimony justifies a decree for damages for the Alhambra, and the conclusion reached upon this question has not been reached without some vacillation of opinion. It is worthy of observation that the pleadings on the part of the Rhode Island, both the libel filed against the Alhambra, and the answer to the libel of the Alhambra's owners, set out the Rhode Island's theory of the collision with a generality of statement, omitting evidential facts, which contrasts unfavorably with the full and detailed statement contained in the pleadings for the Alhambra. It may be more artistic pleading to allege only the ultimate facts upon which the cause of action or the defense rests in an admiralty cause; but, when the controlling evidential facts which may be expected to be put in issue can be set forth without undue prolix:ity, it is prudent to do so, and tends to denote that the party is willing to make a complete disclosure of his case at the threshold of the controversy, which will preclude him from shifting his position to meet the case of the adversa,ry. If the witnesses for both parjies had been produced upon the trial in the court below, and the decision of the district judge had been placed upon hil;1 opinion of their veracity, there would be no question but that the decree should be affirmed. To warrant a reversal upon a mere question of fact, when the court below has had an opportunity of seeing the witnesses. and observing their demeanor while giving testimony, the preponderance of the evidence should be somewhat decided. This is not
Buona.case: . Therwitnesses forthe;Rhode Island w(lreproduced and examined before the district judge upon the triaL;Thewitnesses for the Alhambra weranot produced uponthetrial,buttheir testimony, taken sterlographica11y by question: and answer, was read., The district judge, therefore, had, 'ilO .opportunity to contrast their deportment with that of the, witnesses for'the Rhode Island. But when the credibility of witnesses is in question it cannot b.e, assumed that those who are examined orally upon, the 'trial, iftheir appearanoe and manner oftestifying is credible, are less likely to be believed than those who have no opportunity to impress their personality upon the court. As· has been stated, the case is one.in which a ,decision in favor of one of the vessels necessarily implies thatthe witnesses for the other have fabricated their version of the facts., The learned district judge was led to his conclusion by a course of reasoning which may or may not be.accepted as convincing for present purposes; .but the fact remains that it could not have been reached without discrediting the integrity of the witnesses for the Rhode Island. For this reason it should probablyrbe ,held that this court ought to affirm the decision of the district court upon the ground that there is no such clear preponderance of evidence in favor of the appellants as would justifya reversal.,It,is unnecessary, however, to plaoethe present judgment'uponthis'consideration. ,; ,A very careful examination of the testimony has led to the opinion, notwithstanding,the extremely forcible argument of counsel for the appellants, that thee decree of the court belowWlls right. The very able aTIlilicareftili of the district judge proceeds Upon the view that the mirrativeofthewitnesses for th(l'Rhode Island cannot be true. while that of ,the witnesses for the Alhambra is consistent, llssuming as established that up to a short time bemre· the collision the courses of each vesselwei'e'as stated by the witnesses for each,and that the first change made by each a£oor,discoveringthe otherw.as about one-half point to the northward. It is' tery uncertain whether the course immediately before eacllvesseldiscovered the other, or the first change of course made by each thereafter,isras:stated bythre witnesses for each.' Those who are responsible for the: collision, and seek to escape responsibility by prevarication, canonl:v hope to prevail by falsifying one both of these antecedent facts. For this reason the reached is placed upon the ground, that the 'witnesses for the 'Alhambra are believed to be more reliableaootruthful than thewitnessesfor>the Rhode Island. It willllbtbe' pllQfitableto.enterupon a consideration of the evidence in detail. It suffices to say (1) that the testimony of the pilot and wheelsman of the Rhode Island does not produce so' favorable an impreSsion of their'Clindl1lr as witnesses as does that of the chief officer and Jstatements of the latter which are inconsistent. with :the general ttendof their narratives, and which they would probably have concealed ifrthey wereuritruthful, being to their crediu;and (2) .Ithe Alhambrtt has produced the only witness in the is not identified in interest, to a greater or less extent, with the ·vessel'for whom he testified ,-a witness whose impartiality, intelli-
:gence, experience, and opportunity for observation ,entitles his to the, utmosr confidence, and whose testimony fully vindicates the :Alhanibra: ·Mr: Hayden was on the bridge. and in the pilot-house of the Alhambra from 12 o'clock until the collision took place., He was onthe Alhambra as a passenger, but was intending to join ,her as chief officer at the end of the trip up the sound, and on the occasion in question he was ,on the bridge' for the purpose of· being instructed by Mr. Dodd in. the testifieS that his attention was first attracted to .lights along the coast. the Rhode Island when the lookout reported her lights on the Alhambra's starboard how. He describes the bearing of the Ugh f;s from the time when both lightscwere visible on the starboard bow until the Rhode Islaad's red light was shutout, her green light seen to be broadening on the Alhambra's starboard bow, and the red then shown ;againas.she was seen to.begoitig across the Alhambra's bow just prior to the collision. He 1 heard Mr. Dodd's order to port the wheel, and the countermand, and .assistedthewheelsrnan in putting the helmihard a-starboard. Hetestines that iliheorder to port was not executed before the order to starboard .was given,: and ·that the order full speed astern was given before either of these orderswasgiveri,and ,when the Rhod$ Island,at a diatance (If :abontaquarter of,a: mile, shut out her green, light, and was showing a ,.red light on her course across the Alhambra's bow. The testimony of this witness was taken some six months after the collision,occurred, and he was at the employ of the Atlas Mail Line, as second,officer of the steamship Alene, having been employed .in the interval for three months on the Bermuda of the appellees'line of steamers, but having left their employment. His testimony is candid, clear, and convincing. While it differs in some details from the narratives of the other witnesses for the Alhambra, the differences are only such as are to be expected when witnesses are truthful, and is in all essentials consistent with and corroborative of their statements. He had no interest in vindicating those who were in charge of the Alhambra from the consequences of their own negligence, and there seems to be no reason why his sympathy should be enlisted in behalf of the vessel upon which he happened to be to an extent calculated to pervert his judgment, much less to lead him to falsify facts in reference to which it is almost inconceivable that he could be mistaken. The testimony upon both sides leads to the decided opinion that the signals which were exchanged between the vessels were not exchanged when they first observed each other, according to the theory of the Rhode Island, but were exchanged at the time immediately preceding the collision, when the sudden change of course was made by one vessel to the northward across the bow of the other. It is wholly improbable that such signals would have been exchanged when the ves!:'els were three miles apart, or even two miles apart, and the testimony of the Alhambra's lookout that, as soon as he saw the red light of the Rhode Island, he sang out to the mate to reverse the engines, and ran as fast as he could to escape danger, and that it was then that the Alhambra's whistle was given, is accepted as true. Under such circumstances, even if the erro-
neous signal of the Alhambra could be considered as contributing in any way to the disaster, it should be deemed a fault committed in extremis, and attributable to the confusion. and excitement .caused by the Rhode Island's sudden change of c(}urse. The contention for the Rhode Island, that the Alhambra was off her regubr course at the time the two vessels discovered each other,and the argment founded upon it, have not been overlooked, nor the suggestion . that the Alhambra assumed the Rhode Island to be approaching her end ported her helm at the time she first discovered the on, and Rhode Island or shortly after. It is possible that the change of course '. which she made soon after discovering the Rhode Island was a half point to the southward, instead 'Of to' the northward; thus herself upon a converging line with the course of the Rhode Island. It is pos. sible that the attention of the chief officer and wheelsman of the Alhambra was occupied and distraoted from observation oithe Rhode Island by Mr. Hayden's presence and conversation with him about lights and 'other subject$of interest. All these consideratiolls have been weighed, as well those which are matters of legitimate argument as those which are merely matter of conjecture; but the conclusion is nevertheless reached , that·the preponderance 'Of reliable testimony is in favor ofthe Alhambra, 'and that her witnesses have' 'an honest, and a substantially correct, version of what took place'. ' The decree in eacn case is affirmed, with interest, and with costs of the district court and of thiseourt.
HILLS V. RICHMOND & D. R. CO.
(Oircuit Oourt, N. D. Geo'l'gia. December 5, 1887.)
REMOVAL OF CAUSE-LOCAL PREJUDICE-AFFIDAVIT,
Section 2 of the act of'March 3, 1887, (24 St. 553,) does not change the practice as it formerly existed, so far as concerns defendants seeking to remove from state to federal courts on the ground of prejudice or local influence. In respect offlaintiffs 80 seeking to remove, the act in express terms makes it the duty 0 the circuit court, on the application of'the other party, to examine into the truth of the affidavit, and the grounds therefor; but the absADce of any such prevision all'to defendants clearly indicates that the law in this respect was Dot intended to be changed as to them,
Action to Recover Damages. On motion to remand. N, J. T.A. Hammond, for plaintiff. . Barraw Tlwmas arid Henry Jackson, for defendant.
NEWMAN, J. This case to this court by the defendant from the. Buperior court of Fulton county, under what is commonly known as the "Local Prejudice Act." The petition for removal, stating that. the defendant is a corporation organized under the laws of Virginia, a citizen resident of that state, and that the subject- . roa,tter of the suit exceeds. the sum or value of $2,000, states that from prejudice /,tnd local influence it will not be able to obtain justice in the superior court of Fulton county, or in any other court in the state to which it might, under the laws of said state, have aright, on account of prejudice or local influence, to remove the same. With the petition was filed the following affidavit: . "I, E. Berkley, being duly sworn,do say that I am the superintendent of that division of the Richmond &I Danville Railroad Company which extends from the city of Charlotte, in the state of North Carolina, to the city of Atlanta, in the state of Georgia; that I am specially intrusted by the said railroad company with the attentio11 to the defense of all cases brought against said company in the COUl'ts of the said state of Georgia, and in the courts of the UnitAd States which are held in said state; that I am specially intrusted by the said railro.ad with the taking of such steps for the protection of its interests and rights in such cases as may be brought agaiIiBt it in either of the coutts aforesaid, as my jUdgment may approve; that I am the highest officer in said company located in the state of Georgia, and having an office therein; that I have full authority to take such steps as may be necessary for the removal of causes brought in the state courts into the United States courts, where the facts authorize such removal, and my judgment is that the removal is necessary to the protection of property, interests, and rights of the company; that I have had long and large experience in the defense of cases brought against said railroad company in the courts of the state of Georgia, and in the superior court of the county of Fulton, in said state; that from that experience I now this. affidavit that I believe that from prejUdice and local influence the Richmolld & Danville Railroad Company will not be able to obtain justice in said state court, or in any other state coutt towhich the said railroad company ma)', under the laws ofthe said state of Georgia, have the right, on
Reported by W. A. Wimbish, Esq., ot the Atlanta bar. v.33F.no.2-6