HOOD>tI.THE LEHIGH. ,
Seveifal other witnesses testified on behalf of the .libelants that the 'night was foggy, and that when the propeller was first sighted the vessels were about:400 ;feet apart. The schooner's captain was the only witness whowasexramirl.ed by tl;le::libelants'on the subject of the· torch. . The propeller's engineer testified that when' the collision occurred the <engine was backing strong; and the wheels had made about 120 or 130 backward revolutions; that she could be stopped whel1running at her usual speed (ten miles an hour) in about two minutes, and he thought oShe had beenbackillgtbreeminutes; tQat he could see stars overhead, but there was a fog-bank on the land side; that her fog·whistle had been ':8oundedall·night at intel'l'als ofaniinute; and that when he received the order to back he was writing up his log, and his assistant was ten feet below oiling The propeller's second mate testified that when the, collision occurred he was on watch at the mast-head, and the captain was'o11 the, bridge, :and they first saw the schooner's red light apparently flash up out of a ,fog.bank over the propeller's starboard bow, about 500 feet away; that the captain immediatelygave theorder"Hard a-port, was, promptly 'obeyed; that the propeller,wasbackiIlg ,atthe·timeof; the collision; that he 'heard Thunder Bay whistle sever.almiles, distant.j,ust before'the; 001Hsion,and saw Thunder Bay light, he rheard; 110 isignal from the, schooner; that a torch could ,have been: :seen, three times ,8IHaa' asared light, and hAhadino doubt the eol1isionwould have been avoided if the schooner Md,sbown atorcp:; that the was' nine' miles an hour whensheflttucktheschQonerj ithat ·the Jog,'was ,not densej,tbattheprdpeller :had, :beenflunnillg' in. fogallnightj and that' he saw :from! which; ,the. schOoner" apparently; emerged when he observed her light. One ;of 'the i propeller's watchnJen for' some :time,before the collision-,he pad[ beeu on, duty: on the. starboardl i b9W; tha.t 'the, ' fog seemed to be in'banks;thaLMtiimes,he c.ould';see ,ulider it, and,·again he could nott that he· saw the schooner's bright red :,light immediately after the second mate reported'it;, ;thathe', beard; ino fog.signal from' the schooner; that if she had shown a torch it: could: have been seen far 'to avoid her; thaHorsome time previous to the collision the propeller's, fog.whistle had been sounded every minute. and that the vessels came tQgetherabout two minutesaiter the schooner's red light was observed. The propeller's other watchman testified tpat. about the time of the collision he heard Thunder. Bay whistle, three miles off, and just afterwards he saw Thunder Bay light; that he heard no fog-signal from the schooner, and that it Was less foggy immediately after the collision. ' The propeller's wheelsman testified that he was on duty at the time oftheaccident, and hefirsts8w the schooner's red light when thevessels were 500 or, 600 feet apart;. that the, captain at the SRme time ordered the wheel hard a-port, and directed the engine to stop and back, both of 'which orders were obeyed; that;hefore strjking. the propeller swung about .two ,points arid, a, balf on ,the port wheeLand· the.:engine
that she had been blowing her big fog-whistle, which could be heard several miles, forBorne time beforejthat he heard no fog-horn from the schoonerithat he heard Thunder Bay whistle just before the collision, and a minute or less afterwards saw Thunder Bay light; that the schooner was not seen sooner because she was in a fog-bankj that if she had shown a torch she could have been a\'oidedjthat when the schooner was sighted the propeller's speed was about nine miles an hour; that the vessels were 200 feet apart when he got the wheel overj and that if he had rung to back at first. he could have stopped the propeller, but lie did not do so because he thought he could pass the schooner. The propeller's captain testified that before and after the collision .he could see stars overhead,but it was hazy, and a fog-bank was hanging along the shore; that he and the second mate saw the schooner's red light suddenly,and at the same time, about three points off his starboard bow, and 400 or 600 feet aWiay; that he immediately ordered helma-port, thinking he could pass under her stern, and rang the bells to back,which orders were ;obeyed; that he could have seen a torch on the schooner a or more, and if she had shown one he could have cleared her; that he had been blowing his log-horn previously every minutej that he heard no from the schooner, and did not believe one was blown; that hedight sprang up all at once; that the propeller was making nine or nine and a half inilesan hour when the schooner was sightedj and that after the collision he asked the captain of the schooner why he did not show a torch, and he replied he might have done so, but did not, although he had one near by, and that he blew his fog-horn, but it was not a good one, and could not be heard any distance. The schooner's captain, however, testified in rebuttal that he did not make these statements. The district judge found that the schooner was not in fault,and condemned the propeller for the entire damales. The propeller's regulation lights.wereburning brightly; two lookouts were properly stationed, the captain and second matelyere on watch, and her fog-whistle had sounded once a minute before the schooner was. sighted; but she was running in fog, and,howevercareful those who were navigating her may have been, If she had been they knew herspeed was unreasonable and running under check, as she should have been, the coHision would not have occurred. I agree with the district judge that the propeller was fault. 'But more important questions remain for determination. Was the schooner at fault ,in not showing a torch:-light before the propeller's lights , were seen? If she was, did her negligence contribute to the disaster? The schooner's lookout thought he heard the propeller's whistle four or fiv.e timescbefore the collision, and that one or two of the blasts were after , he saw her lights emerge from the fog. Assuming that he was right in ;this statement;: he heard the propeller whistle several times before he saw her lights, and all, the witnesses for the respondent agreed that her fog-signals were sounded atreglllar'intervals of a minute. The 'lookout ,';promptly reported to the mate on deck a steam-boat whistling over the
HOOD .,. THE LEHIGH.
schooner's forward lee-bow, and the latter testified that when he heara the propeller's second signal he ordered the lookout to blow his horn a little oftener, and that he heard the propeller whistle 10 minutes before he saw her. It is insisted, however, that in this latter statement the schooner's mate was mistaken; that it could not have been 10 minutes from the time he heard the propeller's first whistle until he saw her. But even if the mate was mistaken, as claimed, and he probably was, it is plain from his evidence that at least two of the propeller's steamsignals were heard before she was sighted from the schooner. It is significant in this connection that just before the collision Thunder Bay whistle, a mile or more distant. was heard from the deck of the propeller. and yet her steam-signals were not heard from the deck of the schooner until the vessels were within 400 or 500 feet of each other. The captain of the schooner did not hear the first whistle reported by the lookout, but he heard the propeller whistle "directly, or within a minute or later." If, when the lookout first reported the approach of a steam-boat, the captain or mate of the schooner had promptly lighted and shown a torch, it might have been seen before the schooner's lights were observed, and notice thus might have avoided the collision. The captain and mate on the schooner's deck were fairly notified of the approach of a steam-vessel in the fog, and section 4234 of the Revised Statutes made it their duty to promptly show a torch, which they did not do; and it cannot be said from the evidence that this neglect of a statutory duty did not in some degree contnbute to the accident. The schooner's captain was the only witness who testified for the libelants on the subject of the torch; In his opinion, a collision was inevitable when he sighted the propeller, and the display torch then would have done no good; but he did not say it was too la.te to have shown a torch when the lookout reported the propeller's first signal. A number of the officers and crew of the propeller testified that in their opinion a torch could have been seen further in the fog than the schooner's lights, and that the display of a torch would have kept the vetlsels apart. The statute which the schooner violated was enacted to prevent just such accidents as the one that occurred, lind the burden was upon the libelants to show by clear proof that the schooner's negligence did not, and could not, have contributed to the damage which she sustained. The testimony of the C!tptain was not sufficient to relieve the schooner of that burden. The dence does not show that, if the schooner had displayed a torch when her lookout first reported the propeller, it would not have been seen from the deck of the latter before the schooner's lights were observed; and it cannot be said that if a torch had been shown, the propeller could not and would not have taken proper precautions to keep out of the schooner's way. It was incumbent upon the libelants to show by clear and convincing proof that the situation justified the schooner in her failure to promptly show a torch.. If the captain had a torch on the deck near by, and readyfor-ul3e, it is certainly singular that he did not show it. . The Eleanora, 17 Blatchf. 88; The 19 Wall. 125;Tha Her6Ule8,
17 Fed. Rep; .606; The Johns Hopkins, 13 Fed. Rep; 185; The l'ep,nsy1,. vania, 12 Fed. Rep. 914. " 1 think the damages should have been divided between ,the two vessels, and the decree of the district,court will be modified to that extent.
UNITED STA'tES ".SULLIVAN.
(Ob'ctdt Opu'l't, D. Oregon. October 8, 1890.)
SJ'lippme-:.BOAltDttG ARRivING 'VBSSBL·
.Section 4606 ofthe Revised.l::)tatutea,providing for the punishment of any perSO,n whot ,wltl1out the consent of the master, goes on board an arriving vessel berore shereaone. her place ot destination, and'Is' moored thereat, applies to foreign vesBelil. '
In Admiralty. 'Informanop for boarding arriving vessel. E. ' ,Maya and Edw.m'd ,N. DeeJdy, for plaintiff. 'Raleigh/Scott, for
DEADY, J.. The informations in thelle cases charge the ,defendants with the violation of section 4606 of the Revised Statutes, on August 24, 1890; by unlawfully going ,on board the vessel Kate F. Troop,while she WlU! in the Columbia river,.near Astoria., and about to a.rrive ather port of destination, to-wit, Portland, Or., and before she was completely moored therEla.t:, The statute provides that: ,,"Every 'person who, not being in the United States service. and not being duly,autborizedby law for pUl'pose,g911s on board of any vessel about to at pla(le uf llestination, betore her actual arrival, and before ,llba bas been completely moored,withoutperinission of the .mastet, shall. forevetysucb offense, be punishable by a fine of not more t.han two hundred dollars; and by imprisonment for not more .than six months; and the master of such vessei may take any such person 80 going on board into custody, liver him lip forthwith to Rny constable 01' police ,officer, to be by bim taken !:)eCore any j of the peace,to be with according to the provisions of this ..Rey_, :=:;t. tit. 53·. This statute is sectiOn of the act of June 7, 1872, (17 St, 262,) entitled" Anaet to authorize the app()int)llent of shipping by the several circuit courtsqf the United States, to superintend the shipping and discharge of sea)llen engaged inmercbant spipsbelonging: to. the .:United States, and for the further protection of sea)llen." , qln the ,Revised ,Statutes the word "vessel" is substituted for "ship," jn tbeorigiTla,J..,