THE MAGGIE S. HART.
The Cement Rock too late undert.ook to change and go to the right. She claims that the Alaska then gave her two whistles, which is denied by the latter; and I am inclined to think the only foundation for this is the several short blasts given by the Alaska as a danger signal when the boats were very near each other. In disobeying the rules without excuse, the Cement Rock took the risk of her attempt to cross the Alaska's bows. The Alaska reversed her engines, and came nearly to a standstill. The primary fault being on the part of the Cement Rock, all that was incumbent upon the Alaska was, to stop and reverse so soon as she had reason to apprehend that the Cement Rock could not, or would not, clear her, either by crossing or by going to the right. Considering the ease with which the Cement Rock was handled, and the fact that the Alaska must have been nearly, if not quite, stopped, I do. not feel justified in holding that she did not reverse as soon as it was evident that the Cement Rock could not be expected to clear without the Alaska's cooperation; and unless that is reasonably plain upon a preponderance of proof, the vessel having the original right of way is not to be charged with fault. The Baltic, 2 Ben. 98; The Greenpoint, 31 Fed. Rep. 231; The Servia, 30 Fed. Rep. 502, (both affirmed in the circuit;) The Farragut, 35 Fed. Rep. 617; The City of Albany, 34 Fed. Rep. 812; The St. John, Id. 763, 7 Blatcbf. 220". The libel must therefore be dismissed, with
THE MAGGm S. HART
HART 'V. 'ruE IVANHOE .A.ND THE MATTHIAS.
(flil/triot Oourt, E. D. Penn8ylvania. April 26, 1889.)
COLLISION-DuTY OF STEAM-VESSELS.
A vessel under steam must keep out of the way of a sailing vesseL
SAME-PILOT IN CHARGE OF TuG AND BARK-JOINT LIABILITY.
A bark and a tug are both responsible for a collision with a sailing vessel when the pilot of the bark is in charge of both, and the collision occurs through bis fault.
Libel for collision. S. Hart. Henry S. Edmunda, for the Ivanhoe. Flanders &" Pugh, for the Matthias.
John F. Lewi8, for the
BUTLER, J. On the 12th of August, 1888, the schooner, laden with ice, was passing up Delaware bay against the tide. About half past 1 o'clock at night, while hl"ading N. N. W., and near the Cross Ledge light, the; resp(jndents came into view (the Ivanhoe towing the bark,
astern) about tluee-fourthsOf a mile away, and near the center of the channel" passing down. Soon'after, the vessels collided. The bark was injured, and now ·seeks to recover on this account. It was the respondents' duty (being under steam) to keep off. With., out explanation and excuse they would therefore be responsible. They have undertaken to explain, and in pursuance of this undertaking allege that the schooner rendered the collision unavoidable by suddenly changing head and running across their bows, when close at hand. The. schooner did turn westward; she admits it. The important question, however, is,. when did she turn? If it was ata time when the courses of the vessels were safe, and without being induced by some act of the respondents, she was in .fault. If, however, she did it when the proximity of the .vessels and thei!' :courses were such as to involve danger, and especially if in obedience to the respondents' signal and apparent change eastward, she is not blamable.. The vital question, therefore, is, did :;the change at a safe distance when the courses involved no danger, and without invitation to do so? The testimony respecting this, as well as respondents'movements, is conflicting. I will not discuss it, but sim. ply state the conclusions reached by a careful examination. I believe the schooner did not change until the. vessels were near together; on courses which threatened .collision; that the situation was dangerous; that the change was induced by this danger, the tug's signal, and a'IDomentary shutting out of her green light. I believe the vessels were at the time approaching nearly head on, and that the schooner may have been misled by the tug's signal; and a slight temporary change of head, (such as might readily ocemr without change of wheel,) into believing she had turned eastward. It is incredible that the schooner would turn as she did, and start deliberately across the respondents' bows, as alleged, when .the vessels were so near together that collision must thus be rendered inevitable. The respondents seek to meet this difficulty by suggesting that her lookout was clefective,and the tug's approll.ch Unseen. This suggestion, however, finds no warrant in the evidence. The respondents were seen, ttnd had' been for some time. I am satisfied the schooner kept her course until so near the respondents that a change became apparently necessary, to avoid danger, and that she then turned westward in the hope of escaping, and in the belief that the respondents were turning the other way. It is possible she would have fared better by turning eastward; she, however, did not think so; and appea_rances doubtless justified her. She had every motive to do the best she could. If mistaken, she is not blamable. The respondents should not have placed her in danger, or in such position as to inspire and justify alarm. It is no answer to say that the collision might not have occurred if she had not changed her course. This cannot be known. She should not have been subjected to the chances of a hair-breadth escape. . ,There are several other iricillents oftlle occasion, which support the conclusion stated. The respondents were, I believe, a little eastward of the middle of the channel; certainly as far eastward as the middle. Without considering the legal question raised, running there in the com-
KIERtiAN -".THE LEONARD RICHARDS.
mon path of upward bound vessels, especially at night,· tends to show a careless disposition of mind. There was an abundance of water for haIfa;' mile westward, and the chances of encountering vessels there was much less. When the schooner was sighted the respondents kept their course without dimunition of speed, until the vessels were quite near together, and then did nothing but sound a warning, which oneof'their witnesees says signifies, out of the way," but which the schooner supposed, from what she saw, signified "Go westward." They say the signal was not sounded until the schooner had turned, and was crossing her bows. I believe they are mistaken; and that it was just before, as the scbooner's witnesses say. If she was then crossing their bows, they shouJli an,d doubtless would have reversed their engine, instead of signaling, or have done both. Of course much testimony maybe found in the case to support a different conclusion. It is, however, opposed by an equal amount entitled to at least equal credibility, and is also opposed by t\le inferenQeB,. generally, arising from surrounding circumstances. I have n9t overlooked the fact that the witness Beers, who was on the tug lIughes, (half a mile, and probably more, behind the respondents,) -SUPPOSlpc:l to be an impal'tial witness,-undertakes to define the loca.: tion and course of the schooner, aF! well as of the respondents; and that in doing so hecQntradicts the schooner's witnesses. I am unable, however, pll,l.geentire confidence in his statements. His situation, the distance away., the intervening objects, and the hour, were not favorable to correct observation. Furthermore, it is quite clear that he did not see the schooqer, (and, judging, by the distance at which the parties inable to see each other, he could not see her,) until the collisvolved ion was imminent; or is it probable that he would have felt any interest in noting her situation or course at such a distance, nor until impending danger.roused his curiosity, if he had seen her. The responsibility of the bark arises out of her connection with the tug, together with, the .fact. that her pilot was in charge of both veSsels. I attach no importance to the faults of steering imputed to her, nor ;her fail· ure to cut the hawser.
(DiBtrict OOU'I't. D. NetD
April 18, 1889.)
.. ,", .'A tug and-lshrp were approachmg nearly head on when tirst dIscovered. The tug whistled, but the signal was not answered. Soon there was a confusion of signals. and the tug continued her course with no diminution of speed until the collision. Held, that the tug was responsible for want of a vigilant lookout, and for continuing her course after her signal was unanswered.
Libel for damages.