WISE tJ. THE CASSIE
. CCCf'CUCt Cwn qf
B'oUrch Circuit.. Aprn U. 1.>
L OoLLlltox-STBJ.JI ,um B.uL-LtGB'l'J,· A steamermoYing at midnight in the opeilllea, on a course B. W. J( W., aDd, proaohlng* schooner moving on a COUrBe N. E. by E., paBBeB the pohit tion otoour"E>I just befo." tohe 8Ohooner reacheB it, anel; Beeingthe schooner'B greea Jight, putll het helm hard'a-port; thereby produolDr. oo1llBiol1 with the aohool1e1', held, the BteaInerW81 in fault. i. ' ,. . , .. S....-Inl\lRnTt01UL . , ,.; Beetion 4284; Rev; Bt. U. B. requiring Ban·veBBels to show torch.llgbtll on the proaoh f Bteamel'B at night, does no.t apply, since the adoption Of. the internationill rules of navigation of \'eBsea upqn the high Beas or coast.-watera.
.. 84m1-J:',UU:tL:BL 4ND OBLIQUB COUBBliIfi,'·
.A. maneu'Vet which would havebeelt a proper one as to veBBels approaching each otber on parallel COllI'IIMm&y be a fatal one. if the velllelar.re movinr on OOUl'Ml obliquely intersecting. ' (Su&labua bU t1wi Ooun.)
Appeal from the Cil,'Cuit CQurt of the :United States for the District of Maryland. ' , In .'. ,., Foster (Jama Thomson, of counsel,) for appellant. Robert s,nith,. for appellees. Before FUUtEit, Justice, and HUGHES, Judge.
OPINIONB'Y' JUDGE HUGHllB.
A collision occurred between the Jteamer Lepanto and the schooner O. F. Bronson, 25 m.ilessouth of Long island, in the Atlantic ocean, shortly half·past 12 o'clook on the night of the 22d-23d April, 1890, from ass6S!leiatabout $10,000, and the which the schoQner sustained amount. Libel was filed in besteamer damagM claimed to the answered, and a cross-libel filed. The half of the sohooner, C)f MarylanQ. the libelant, the circuit court afdistriot firmed that decree, and the case has been appealed to this court. . The collisioIl,OCOurrn4 on:8 :clear Bight;; the deck officer of the steamer LepantQdescriQt!d .it '.$i '!fine, very fine, starlight" night. WitJ;lesses -everally say that objects coulc;!; seen at 2, 3, 4;, 6; and 6 miles distanto The Lepanto was running, half.laden, 10 to 11 miles an hour, on a course S. W. i W., and was first seen by the schooner when at a distance of 5 or 6 miles. She registers 1,489 and carries 3,000 tons. Her dimensions are not given. The Bronson is a four-masted schoone.r of 183 feet keel, 40 feet beam, and 2,000 registered tonnage. She was laden with 1,789 tons of coal. She was on a course N. E. by E., with
all sails set, moving befOre 8 very light wind, from S. S.W., at a speed of two and a half miles an hour, which barely gave her steerage-way. There being very little wind; her sails were" hauled out by the tackles on the port side;" were "way off on the port side;" were "drawing hardly enough to keep the booms off;" "requiring tackle to be hooked on to keep the booms off." Witnesses of the Lepanto all insist that they did not see the schooner, or her red light, until within half a mile from the place, and four minutes of the time, of the collision. The two vessels were approaching each other. The course of the steamer being S. W. ! W., and of the schooner N. E. by E., they were moving on intersecting lines, and the sequel proved that they were moving in such manner that the steamer would pass the intersecting point of the two courses before the schooner reached it. Before the collision the schooner had the steamer a point and a half on her port bow, the steamer conversely having the schooner a point on a half on her starboard bow. If their lights were in place and burning, the steamer showed her green light and the schooner her red light to the approaching .vessel until the steamer crossed the course of the schooner. The steamer was bound by the seventeenth international rule of navigation, (1885,) which requires, in substance, that when a steam-ship and a sailing ship are approaching each other on intersecting coursp.s the steam-ship shall keep out of the way of the sailing ship, and the schooner by the twenty-second rule, which required her to keep her course. If the schooner was Dot in fault as to her lights and her men on deck, and kept her course, then the presumption is that the steamer was in fault; her duty being to keep out of the way. The evidence of all the crew of the schooner in the case is so positive, clear, and consistent to the effect that her lights were in their proper places, and burning brightly, for hours before and at the time of the collision, that it would be unreasonable to entertain doubts of the fact. In every case of collision between ships in which the testimony of one vessel is as unanimous and positive as it is in this, if it nevertheless be in fact false, there is sure to be some physical circumstance, condition of things, or occul'rence Qeveloped in the evidence to refute and discredit the false testimony. This sort of refutation is wholly wanting in the present instance, and it must therefore be repeated that it would be unreasonable to dOTJ bt the fact that the regulation lights of the schooner were in their proper places, and burning brightly, before the collision. The matter of the flash-light is not included in this remark, and will be dealt sequel. with in It is true that those of the Lepanto's crew who were examined all say that they did not see the red of the schooner until shortly before the collision; their testimony being as follows, respectively: The first officer says, "about three or four before;" the third officer mentions no time, but first saw the red light "about one and a half points off our starboard bow; about half a mile, I should say, or a quarter of a mile, from us;" Howard, the lookout, 8ays"two or three or four minutes, bearing a point and a halt- on the starboardbowj" and Kilby, the pilot, says,
"Saw light about a point and a half on the starboard bow, about three mjnutes before the collision." It 'would be unreasonable to question the sincerity or truth of these statements. It must be conceded that the red light of the schooner, though in its place and burning, was-not visible to these witnesses until shortly. before the time, and within half a mile of the place, of collision; a fact which was doubtless due to the feebleness of the breeze, and the consequent slack condition of the sails of the schooner, hanging" way off' 011 the port side," obscuring the red light. As to the men 011 deck of the schooner,at the time of the collision, the lookout was in his proper place. the first and third officers were on duty, and giving due attention to the navigation, .and there was a pilot at the helm,-all competent men, 110ne of whom were at fault in the discharge of their respective duties. Nor can' it be doubted that the schooner kept her course. Moving so slowly before a light wind as barely to be in possession of steerage-way, this large four-masted fully laden, was incapable of changing her cQurse,.except in·the slowest manner; and the testimony proves that she madenq. change of helm until just before the moment of collision, when it was put hard but with no other effect than to bring her pow, to abput a quarter of a point. It follows from the foregoing consideratiqns that the schooner was not in fault. , Was the Lepanto in fault? In order to simplify this inquiry, let two things be prepliaed: If two vessels are approaching each other in the night on parallel courses, each passing to the right, and showing the 'Other her left or port red light, and each keeping her course, they will certainly pass clear. Bnt if one of the vessels, just as the other nears her, shuts in her red and shows her green light,-that is to say, throws herself ll,cross the bows of the other,-then a collision is inevitable if theJwo are in close proximity; and all that the other vessel can do is to put her helm hard a-port and throw her bow to starboard, in order to lighten theconcussion as much as possible. Second. But if the two vessels are.approaching each other in the night on courses that intersect at an.oblique angle, in such manner that one vessel will reach the p9intof intersection before the other, the two will clear each other if each keeps its course. The vessel reaching the intersection first, if runW. tW., will Bee the other's red light, if the latter be moving N. E. by E., until just before crossing that vessel's course, but will see hergreen light immediately after crossing, and, iithe crossing vessel then keeps on, there will be no. casualty. But if this vessel, unmindful of the fact that the two courses intersect, after crossing the other's course, and the green light, puts her helm hard a-port, as if she were ·passing the other on parallel lines, then, if she is very near the other vessel, a collision becomes imminent. See the annexed diagram· . Tbeevidence this record adduced in behalf of the Lepanto, although very and confusing on' the vital point of the case, seems to leave no doubt that the second statement describes what occurred. The Lepanto, on crossing the Bronson's course, and on seeing that vessel's green light, committed the blunder. of putting her helm
hard a-port, thus throwing her bow. rapidly to starboard the schooner, which she had actually,though unconsciously, cleared. This maneuver of the Lepanto would have been the proper one if the two vessels had been nearing each other on parallel lines, for in that case the sight of the schooner's green light would have been the announce-
B.B.· PQsifJollS at tne
ment of an imminent collision. But they were not passing on parallel lines; the Lepanto had crossed the bows of the Bronson on an intersecting course, and the sight of that vessel's green light was the signal that she had orossed in safety. If she had then continued on her course, nothing would have happened, but, on Heeing the schooner's green light, and losing sight orin ignorance of the fact that he was on an intersect-
irig course; the 'W8JJ fstalin' that conditionoiithirigs,thaugh'itwould. 'Have been proper if he had not 'crossed the course ,of the 'schooner: It'is true that the witnesses for the ,Lepanto insist that, while she still had the schooner a poInt and a half on her starboard bow, and was a quarter to a half mile off, and imm.ediately on seeing the schooner's red light, and several minutes before t1?at,vessel's green light appeared, she made the maneuver of putting her helm hard a-port. But the Lepanto's testimony on these points cannot overcome a stubborn physical fact. A close examination of that testimony on the crucial point of the time of putting her helm a-port itself leavEjs the impression, notwithstanding the of the witnesses to tije contrary, that the steamer had crossed the"sphooner's course, and that the green light had shown itself, put to port. But such an examination in unneceswhen the sary here, collision would MVEl been physically impossible if the helJ;Il had been put bard down, as described by the steamer's witnesses, "three to four minutes" before the collision, when the steamer was at a distanceo'f, "a quartertQ! a half mile" from the schooner, and still had her "a point'anU a half on"her starboard bow." The steamer's pilot teswith apparent'pride, that Rhe "obeyed her helm readily,-very quickly;" and the propba.tlion must be absolutely rejected that a steamer thus exceptionally responsive tO"her wheel failed, with her helm hard a-port, to clear a vessel on her l:lta,tQoard bow, more than a quarter of 1,\ mile, and ,three or four"minutest,oli. Given the position of a slowly moving '8f:lhooner on the starboard of a steamer; given the facts that a half-laden, stea,mer, readily and quickly obedient to her wheel, moving 10 n;tiles !ill hour" puts her helm hard down, and, coming around, strikes the scha'oner with her port side,on these premises is 'irresistible that this steamer was in very clpseproximjty to shll put her helm hard down. matter\ of-'th'e 1f}iil'anto,thecol1clusion is irresistible that,the sehooner's,green lighfi'Jhd shown itself when the steamer's helm was put to port. The collision could nut ha\je occurred if the helm had not been put down after the schooner's course"lhad been crossed, and the steamer was in fanlt in putting it hard to port after that crossing, and doubtless alter the schooner's green light was s h o w n . , It is insisted, however, un behalf pf the Lepanto, that her fanure to two vessels was largely owing to discover the relative situations of the fault of those on the schooner ill Ilot showing a flash-light, as required by section 4234 of the Revised 8tatut$. It is answered, on the schoUl1f'r's behalf, that in point of fact she prepared to exhibit a flash-light, and did actually ignite it, but put' h out immediately after doing so on seeingthegreenligl1t of ihestf;larnel',which 'gaveassurancethat sal was abol1t. to cross'Ber ,ebuQ'8e,'andgo clear; , It is'lleedleSs2todeal'here with: this issu6affitct. The international rulesof'naivigation; enacted into laws by the ,act of congress of March 3, 1885, donotnequire £lash-lights :to be used by vessels upon -the high r.easand coast-waters of t'he United Stll:tes. Article of those rules' de.;.
than those mentioned in. the articles olthe act relating. todights sqallbe carried, and none :Ofth088 articles mention flash-lights; and section 2 of the act repeals all.laws and parts of laWIt mcoasisteiltwith those. articles. Moreover. the 'act of 1885, estahlisht'l ing international. rules for sea-going and coasting vessels, omits section 4234 of the Revised' Statu1es. . It follows, therefore, that if the schooner Bronson did not display a flash-light on the approach of the Lepanto, she was ,not in fault on that score. The decree of the circuit court is af· firmed, witb.intereet,and costs of the appeal toiba paid by appellant.
Tm: CIAHPA EMILIA.
Second 01!rcuu. '.JanUU'7 18, 1891.)
A t.ug', wlt.ha.aliljl in tow on a hawser, gave a rank sheer in an attempt to put from one side to. t!l.e, ot.her of a dredge anohored in midstream, when so the l . latter t.Mt, 'althoulth t.he Ilhip inst.antly put. hel' helm hard over to follow the tUIr, , ahe came in collillion wit.h the dredge.' Be14, t.hat the tug waa liable. Where libelant. haa not appealed. he cannot. contend this court that oertala itemll of hill 1011 were improperl,y diaallowed in t.hecolirt. below. . .1 Fed. Rep. 117, a1Iirmed.
CoLLISION-TuGs A" TOWIl-VESSEL A'l ANOHOB-eHANGBOI' COURSB.
.I.APPBUS--PABTX NO'J' APPB,LLJJ:(G IJANNOT ,BE HEARD.
In Admiralty. Appeal from the circuit court of the .UnitedStatea for the eastern, d..istrict of New York. The district CQurt sustained the libel aga.inst the tug, (41 Fed. Rep. 57,) and claimants a.ppealed to the circuit court, which affirmed pro frmna the decree of the district court, and claimantsa.ppealed to this court. See 46 Fed. Rep. 866. Hyland & Zabriskie, (JosW.h A. Hyland, of, c01,msel,) for appeUa.nta. Wing, Shcudy & Putnam, (Charles a. Burlingham, of counsel,} for apoe . Before WALLACE and L!.COllBlC, Circuit Judges.
/:WAU4\CE, ,CirclJit J udge.This .is a libel bJ.'dUght by the, the ship Cia.mpa Emilia to recover damages sustained by .. collision which took place in the Delaware river, at Mifflin bar, November 2, 1888, with the dredge Arizona, then anchored in mid channel. The ship at that time was in tow of the tug F. W. Vosburgh, going northward, bound for Philadelphia. The dredge was anchored on the bar by spuds. She was about 92 feet long and about 34 feet wide. The ship was being towed on a hawser about 250 feet long. The tide was