COOPER ". THE .SARATOGA.
illg the cargo across the wharf from along-side of the ship to terra firrna, and for watching and caring for the same, which items are not now in contest before this court, but are still pending in the district court. The following decreewill be entered in the case: This cause came on to be heard upon the transcript of appeal and evidence, and was argued; whereupon it is ordered, adjudged, and decreed that the libelants, Felix R.·de Larrinaga, Pedro de Larrinaga, Jose R. de Unitia, and Ramon de Mendozana, composing the commercial firm of Olano, Larrinaga & Co., do have and recover from the claimant, the Louisiana Sugar Refinery Company, and John S. Wallis, surety on the release bond herein, in 80lida, the sum of $4,906.61, together with the costs of this court on this appeal, and for which execution may issue after 10 days from the filing hereof.
November 14, 1889.\
(or.'I'cwlt Cown, S. D. NfM York.
A finding of the distriot court, on libel for damages by collision, that both vessels were in fault, will not be disturbed on appeal, when no new proofs are taken, and the evidenoe was oonflicting, and the finding turned on the oredibility of witnesses who were examined in the presence of the distriot judge, though the testimony seems to warrant another conolusion.
In Admiralty. Libel for damages. On appeal from district court, 87 Fed. Rep. 119. . Hyland <t Zabriskie, for claimant. Wing, Shoudy <t Putnam, for libelants. WALLACE,. J. The libelants are the owners and crew of the schooner L. Holbrook, and sue for the loss of the vessel and the effects of the crew by a collision with the steamboat Saratoga, which took place in the Hudson River just opposite Catskill point on the night of August 15, 1888, about llalf-past 11 o'clock.' The night was cloudy, and betokened rain. The moon was about setting, and had sunk behind the hills which lie on the west of the river, and, although the stars were visible at times through the rifts in the clouds, when the collision took place the night was exceptionally dark. Where the collision took place the trend of the river is north and south for some little distance, and the channel is narrow, the width being 600 or 700 feet. The vessels collided near the middle of the channel, but somewhat to the westward. The tide was ebb, and the wind was very light from the south-east. The Saratoga was a large steamer, making regular trips between the cities of Troy and New York, and running upon schedule time. She was bpund down the river, making her usual speed, going about 14 miles an hour .through the water, and had 225 passengers and a large cargo of freight . .Herc()\lrsewas to the westward of the mid-channel. Two pilots were
,at thewheel:1n'the pilot-bouse on:the front of the: hurricane deck,. and a lookout·was stationed forward on the promenade dec1t.. The schooner, carryihglfcargo of 90,000 bricks; was also bound, down the ri ver. Her master WM"at the wheel, and one of'her crewwas'onthedeok, but not actingas'lt'lbbkout. The rest of the crewwere.belovt. While she was on the eaSterly side of the river, on her port tack" making to the west side, the sohooner observed some of the lights of the steamer apparently a mile or more away. She ran out her port tackdmtil she got as near as practicable to the west shore of the river, on,s/'course so far to the southward that her lights were not visible to; the steamer. f;lhe then came and headed on her starboard tack for the east side of .the river, gdingat a<speed of a roileor a little· better an .hour, and sagging with the tide down the river. After she came about the master saw the red ligllt of the steamer, according to his statement, about half a mile away; and shortly after he saw both lights, and, as danger of collision then became apparent, he shouted to the steamer, and gave an alarm to his own men, who were below. 'The steamer did not see the schooner, but, hearing the alarm, stopped her engines, and after she discovered the schooner rev'eised her' engines. She struck the schooner on the port side, near the main rigging, and the schooner sank almost immediately. The pilots in the wheel.house and the lookout oOhe steamer all testify that although they heard the alarm on board the schooner, and tried to discover her, they could not do, so until she was right under the steam. boat's bow. When the alarm was given the vessels were so near together that the seaman on the schooner, who was standing by the starboard rigging, upon hearing the master's alarm had only time to jump from the top of the cargo to the forward deck, and run around to the port side, and back again to the starboard side, before the vessels struck. By the decree of the district court both vessels were held to be in fault, and the ofthe libelants were divided. The district judge was of the opinion that the schooner wssin fault because she did not show any signal, neither a flash.light nor the globe lamp which she had at hand, to the approaching steamer, slthough her own colored lights were obscured from the observation of the steamer during all the time she wason her port tack and was coming about upon- her starboard tack. He was of the opinion that the steamer was in fault because she ought to have seen the schooner, notwithstanding the circumstances,. at a distance of at least 500 feet, and 'that her failure to do so was to be attributed to inattention on the part of the lookout. Both parties have appealed. The only serious questions in the case are those of fact. Even if the schooner was not under a statutory obligation to exhibit a flash.light,as to which it is not necessary to express an opinion,-upon the state of facts found by the district judge it was her duty to employ active vigilance to avoid collision, and in this behalf to give some indication of her presence to the steamer. The Oder, 13 Fed. Rep. 272; The¥ictoria, 8 W. Rob. 49; The"Anglo-lndian and The Earl Spe:ncer, 33 Law T. (N. S.) 233, 235; The Thomas Martin, 3 Blatchf. 517. The steamer was also in fault, if, as was found by the district judge, she ought to have seen the
schooner at least 500 feet away, although of the latter were obscured, and failed to do so because her lookout was inattentive at the critical time, The case is not one in which it can be seen thatthe fault of either vessel was not contributory to the collision. As the witnesses were examined in the presence of the district judge, and no new proofs have been taken by the parties.in this court, his conclusions of fact ought not to be disturbed by this court ,if they turn upon a question of the. credibilityof,the witnesses for, the respective, parties. It seems improbable that if the red light of ,the schooner had been visible to the steamer at any time after she. had' come about on her starboard tack it would not have been observed by one of the pilots or the 109kout, or that they would. have. failed to see. her even with her lights obscured,H she had, been a distance of 500 feet. It seems improbable that the pi- . lots, situateli as they were, where their opportunities for observation were favorable, and, exercising the vigilance to be expected when in charge of a steamer carrying a large number of passengers and a cargo of valuable freight, would not have seen the schooner if she had been plainly visible; or if their inattention had been otherwise momentarily occupied, they would perjure themselves as to the fact when there was a lookout at ,his proper place, upon whose vigilance they had a right to rely, and :when blame could not reasonably be imputed to them. But the distriot judge discredited ,their testimony, as well as the testimony of the look()ut, as to the impracticability of seeing the schooner asufficient distance away to avoid collision because of. the darkness of the night. He. had an opportunity to observe the bearing and appearance of these witnesses, and to judge whether they appeared to be candid and truthful ,or not. This court has no such opportunity, and any impression derived from reading their testimony should give way, wbere the proofs present a. fair conflict of fact, to the. judgment of the district judge based upon the personal observation of the witnesses.. The decree of the district court is affirmed. Neither party is entitled to the costs of the appeal. both having appealed·
. SHAW t1. FOLSOM.
NewYor7c. November 11,1889.)
On an appeal from the district court in an admiralty cause, the circuit court wU1 not award increased damages to the appellee, though the allowance made by the district court was too small The case of The Hespf/T', 122 U. B. 256, '1 Sup. Ct. Rep. U'l'l, commented upon.
In Admiralty. Libel for damages. 88 Fed. Rep. 356. H. G. Ward, for appellant.
On appeal from district court.