James Thomson, for the Martello, cited: The Zadok, L. R. 9 Prob. Div.1l4; The State of Alabama, 17 Fed. Rep. 847, The Europa, 14 Jur. 630; The Vim, 12 Fed. Rep. 906; The Maria Martin, 12 Wall. 31; The Louisiana, 2 Pet. Adm. 271; l'he Continental, 14 Wall. 345; l'he C. "0. Vanderbilt, Abb. Adm. 361.
Wm. W. Goodrich, for the Willey, cited:
The Hammonia, 11 BIatchf.414; McCabe v. Steam-Ship Co., 31 Fed. Rep. 238; The Nacoochee, 28 Fed. Rep. 462; The Colorado, 91 U. S. 692; The Pottsville, 12 Fed. Rep. 633; The Pennsylvania, 19 Wall. 133; The Luray, 24 Fed. Rep. 751; The Rhode Island, 17 .Fed. Rep. 554; The John Hopkins, 13 Fed. Rep. 185; The Leland, 19 Fed. Rep. 771; The Elysia, 4 Asp. 540; The Victol'ia, 3 W. Hob. 49; The Pepperell, Swab. 12; l'he Westphalia, 4 Ben. 404; The Pennland, 23 Fed. Rep. 551; The NOl'them Indiana, 3 Blatchf. 99.
LACOMBE, J., (after stating the findings as above.) This is an appeal from a decree of the district court, apportioning the damages resulting from a collision in a fog between the steamer Martello and the barkentine Freda A. Willey, on May 8, 1887. The colliding vessels were on crossing courses, and came together nearly at right angles, the steamer's stem striking the barkentine between her stem and the cat-head. Both vessels were damaged, and cross-libels were filed. The location of the collision is fixed by the district judge at one and three-fourth miles N. by E. from Sandy Hook light-ship. Probably it lies somewhat further to the eastward. The soundings recorded in the Willey's log seem to indicate that her' course was-as her captain testifies-about a mile to the eastward of the light-ship. It is not, however, necessary to determine this location with precision, and the conclusion of the learned district judge on that point may be accepted here. The respective speed of the colliding vessels is the material and controlling fact in the case. Examination of the record has led to the opinion that the conclusion reached by the district judge, viz., that the steamer was moving at the rate of five and one-half to six knots, and the barkentine at the rate of four knots, an hour, is correct. It will not be profitable to enter upon a consideration of the evidence in detail, in view of his careful and exhaustive discussion of the various items of proof which-notably in the ca8e of the steamerled him to that conclusion in the face of the direct testimony of her officers. Suffice it to say that the Martello's witnesses substantially agree in giving her a uniform speed from about the time the pilot left down to the time she reversed upon sighting the Willey. That being as to her rate of speed is found in a so, the most persuasive comparison of the time which elapsed with the distance traversed between those periods. If the time is' taken as given in the Martello's log, and the distance as found by the district judge, she must be given a speed of between fiveund one-hall to six knots an honr; and, if the collision occurred further to the eastward, her speed would be even greater. At any rate, it is plain that a reversal of her engines full speed, ordered as soon as the Willey came in sight, (7.50 A. M.,) failed to overcome the forward impetus resulting from her prior rate of speed, and this failure was not promoted or assisted by any improper change of the Wil-
ley's course. As the Martello would have had good steerage-way at three knots an hour, her speed therefore was not moderate under the decisions, and for the resulting collision she must beheld to blame. The district judge has found the Willey in fault (1) for going at too high a rate of speed, and (2) for failing to check speed after the steamer's whistle was heard. An effort to check speed by executing the maneuverdescribed in the case cited (The Zadok, L. R. 9 Prob. Div.117) would have brought about a change of course, and she was bound to keep her course under the twenty-second rule, at least until the existing situation afforded reasonable assurance that a change would prevent a collision, otherwise imminent, and would not itself tend to produce the very mishap it was intended to avoid. But the existing situation was such that the master of the Willey could not prudently change her course in time to be of any service. The district judge so held, and rightly, upon the proof. The sale question as to the Willey, then, is this: Was her speed of four knots an hour immoderate, under the existing conditions of fog, wind, and situation? None of the cases cited in the opinion or on the argument have gone to that extent. In those where the sailing vessel was going four knots an hour she was not charged with fault; in the cases where she was held in fault her speed was five knots or over. The facts in proof do not show that her speed was too great to admit of the execution of such maneuvers as the situation in which she found herself might require. Her captain was on deck, with his vessel under command. Had the steamer advised him by signal (under nineteenth rule) or otherwise that she was directing her course to starboard, he could have kept his course. Had she advised him she was directing her course to port, or that she was reversing, he could have ported his wheel, and avoided a collision. For any such indication of the steamer's maneuvers the '\Tilley's master was on the watch, ready to promptly respond, and at a speed of four knots an hour a prompt response would have prevented the accident. In the absence of any such indication, however, he would not have been justified in violating the twenty-second rule by a change of course. Nor did the Willey's speed prevent the Martello from avoiding the collision, because, had the latter been going at a lowrr rate of speed, had she stopped her engines when she heard the Willey's horn, and reversed (as she did) when she sighted the barkentine, she would have stopped short of the Willey's track, whether the barkentine was going fast or slow. Except to the extent that, if going slower, the Willey would at 7.50 A. M. have been further down the coast than the place of collision, her rate of speed cannot be said to have contributed to the collision, and should not be charged against her as faulty navigation. The district court held that the Willey "had by no means brought her speed down to the standard of good steerage-way. On the contrary, she was going at nearly full speed." In support of this proposition there was no direct testimony below, and the dicted proof in this court shows that with all her sails set she is a good, 10-knot vessel, loaded, or 12, light, in a nice set of ballast; and that at less than 4 knots she would not have steerage-way sufficient to give her
FEDERAL REPORTER, v.ol. 39.
master thorough control of her to tack, wear, and handle her as occasion might require. There should be a decree for the Willey and against the Martello in each case.
L'HOMMEDIEN et al. v. THE MISCHIEF. 1
(DistrMt Court, E. D. New York. July 12, 1889.)
COLLISION-VESSEL AT ANCHOR-LIGHTS.
The stearp.-tug Q. had taken a tow up Hunter's Point creek. and, having landed it in a proper place on the shore. was lying along-side the tow, stern down the creek, witho\Jtlights, and with over 100 feet of clear water outside of her. In the early morning the tug M. came up the creek and ran into the Q., doing the damage sued for. The M. claimed that the absence of lights on the Q. was the cause. of collision. Held, that under the circumstances the Q. was not required to have a light, and the M. was responsible for the collision.
In Admiralty. Action by Samuel L'Hommedien and others for damages by collision. Wing, Shoudy &; Putnam, for libelants. Alexander &; Ash, for claimants.
BENEDICT, J. This is an action to recover damages for injuries sustained by the steam-tug Quickstep in a collision with the steam-tug Mischief, which occurred in Newtown creek, above the first bridge. on the morning of the 8th of December, 1887. The evidence shows that early in the morning. and before light, the Quickstep had taken a tow up the creek. She landed her tow on the Hunter's Point side of the creek, above the first bridge, at a proper place, and at the time of the collision was lying still along-side of the boats, with her stern down the river. She had no lights. While so lying, the Mischief, having got under way below the bridge, passed up the creek near the Hunter's Point side, and struck the Quickstep in her stern, doing the damage sued for. The collision occurred early in the morning. The testimony leaves it somewhat in doubt as to whether, at the time of the collision, tlwre was not light enough to enable the Mischief to see the Quickstep in time to avoid her. Some evidence is to the effect that it was light enough to see a man on the other side of the creek, which was there some 282 feet wide. The only fault on the part of the Quickstep charged by the answer which deserves consideration is that she had no light. I am not aware of any statute which required her to have a light, under the circumstances,-not being in motion, but moored along-sirle other vessels attached to the shore of Newtown creek, and with over 100 feet of clear water outside of her. Nor can I find that an absence of light on the Quickstep caused the collision. The pilot of the Mischief himself testifies that he saw the Quickstep, but
lReported by Edward G. Benedict, Esq., of the New York bar.