After the fog shut down the Atlanta proceeded slowly under one bell, and her pllot testifies that the hull of the Phcenix, as well as her mast, became visible at a considerable distance. The Atlanta was a little on the starboard hand of the Phamix. Fog signals indicating a tow had been regularly given by the Atlanta, and an additional signal of one whistle was given to the Phcenix when she was seen at a sufficient distance to keep away, which the Phrenix answered with one whistle. Afterwards the pilot of the Atlanta, seeing that the Phrenix was not ing away, but kept coming towards him, reversed when some 200 or 300 feet distant. The Phrenix was but one-third loaded, and after the fog shut down upon her in mid-river she also slowed. The evidence leaves no doubt that the Phrenix had timely notice of the Atlanta's presence with a tow a little on her starboard hand, and that she saw the smoke-stack of the Atlanta in abundant time to have to starboard, or avoided her, as it was her duty to do, either by by stopping and reversing. She delayed reversing, according to her own pilot's testimony, until the canal-boat came in sight not over 50 feet distant. This delay fixes the blame upon the Phrenix. The Atlanta, seeing that the lighter kept coming towards her, reversed as was her duty under the old twenty-first rule. Had she kept on, she might possibly have cleared; but that is not enough to charge her with fault. She did not know and could not tell, what the Phrenix was doing, or why she did not keep away in accordance with the previous exchange of signals. There was no such clear case as justified or required the Atlanta to disregard the twenty-first rule. The error, if any, was an error of brought about by the previous fault of the Phrenix. judgment in Decree for the libelant against the Phrenixj and for the dismissal of the libel against the Atlanta, with costs.
THE HA VILAH.
PRATT tI. THE HAVIT,AH.
(CircuUCOUTt of Appeals, Second Circuit. January 18,1899.)
A brig and a schooner appl'Oached each other on a clear night, the brig salling free on a couI'Ile W.?i N., and the schooner closehauled on an E. by N. COUl'lle. On conflicting evidence the COl!lrt found that the schooner held her course, except. for a luff i·,! extremis, continually eXhibiting to the brig her green light, and that the red light of the brig was seen on the schooner's starboard bow some time before the collision. The brig collided with and sank the schooner. Held, that it was the duty of sailing free, to have avoided the schooner, sailing closehauled, and for her faill)re 80 to do the brig was in fault. The mere fact of a vessel's sinking by reason of a collision is not suftlclent to warrant a fl.ndillg tbat she aDd her cargo are a total loss; and where it appean' probable that tbey may be raised without much expense, and the vessel repaired; . ownera are not allowed to insist upon damages, as for a total 1088, when they have
DAMAGES-:'ExPENSE 011' RAISING SUNKEN VESSEL-WHEN NPT ALLOWED.
not llD,lp.lOyed measures tomitlgate the lOIs. Bnt.wh8n a vessel worth 18,800 was sunk iii deep water, and WIM 'afterwards raised at a cost of $1,900, and repatre were put upon her to the 8xtentof $61800, held, that the wrongdoer was liable only for tbe value of the ship, par8'Ot freIght, and personal effeots on board before the collision. 88 Fed. Rep. 876, reversed.
In Admiralty. Appeal from the circuit court of the United States for the southemdistrict of New York, affirming proforma a decree of the district court for said district. The latter court held the brig Havilah 80lelY in fault for the collision, and claimants appealed. Modified. He;nry D. HotchkiBs and Robert D. Be;nedict, for appellants. He;nry Arde;n, for appellee. , Before WALLACE and LAooMBE,Circuit Judges. circqitJudge. Qn,the morning of December 9, 1887, a in Long Island 801111d, a few miles to the westward of F,auUm,er's isl;md, light, between the libelant's schooner, Helen Augusta, and the brig Havilah. The schooner was sailing before the collision, by the wind, on a course about ea!3t by north on the port tack, the wind being about north-northeast; the brig was sailing west-half.north, having the wind free. The vessels sighted each other jU!3t at the break of dawn, the breeze was moderate, the weather clear and good for seeing lights, and bc,>th vessels had their regulation lights burning. The brig struck the scp-ooner On the starboard side, a little forward of the mainmast, and she, went down soon after. The district court hf;lld the brig solely in fs.ult for the collision. This decisipn was affirmed in the. circuit court, and tbe claimants have appealed to this court. . "Vlilhllve reaohed the sameconelusion as the district judge on this and carefully disbranch of the case, but the facta are 80 cussed in his opinion that it is unnecessary to rehearse them. As the brig was sailing free, and the schooner closehauled on the wind, the former is to be held responsible unless the collision was brought about by inevitable accident or by some 1imlt of the schooner. Of inevitable accident, there is no suggestion. It is chl.imed., however, that the schooner changed her course to the northwafraJ imd thus misled those who were in charge of the navigation of the Havilah, anll that this change was made, not in extremis, when collision inevitable, but was itself the cause which but chauge happened. The witnesses for the schooner insist that no such change was made; thatetlrey. saw the brig's red light,for several minutes before the collision starboard bow, and apprehended no collision until the brigeamenear, supposing thelatte,r \vouhl.a"oid. her. If the course of and the bearing of the brig were as testified to by libelant'a witnel!l8es, the brig could at no time ha"e seen the schooner's ::ed light, and,.,8'Sa persistent green light W'o.uld have indicated a sailing vessel hauled on the wind, it would be the':'brig's duty to avoid her. This. contradicted by the second ma.te and the lookout of the brig. who insist that they first saw the red light of the schooner, and then, -after a" brief interval when no lights were seen, her green. one.
The testimony of the opposing witnesses is wholly irreconcilable. Error in those called from the brig, who did not see the light continuously, may be accounted for on the supposition that they mistook some other red light for that· of the schooner; but if the evidence of those called from the schooner, who insist that they watched the brig's lights continuously till the time of collision, is false, it must be a deliberate fabrication. We 'Concur with the district judge in believing that the schooner's witnesses told the truth when they asserted that, down to the time of collision, she exhibited to the brig only her green light; and that, except for a luffing up in the very jaws of the collision, there ',vas no change of the schooner's course. For the resulling catastrophe, therefore, the brig is solely responsible. There remains a question as to what is the measure of damage. There wa!" a wide difference between the estimates of the witnesses who testified before the commissioner to the schooner's value before the collision. The weight of unbiased evidence, however, is strongly in support of his finding that her value then was Her cargo was coal, worth .about $1,200. She was 22 years old, and sank 2 minutes after collision, in the open sound in 100 feet of water. The libel alleges that she became a total loss. After the decision of the district judge, hearings ,began before a commissioner to take proof of damages, and proceeded till eight witnesses had been examined by the libelant, touchibg the value of the vessel before collision, on the theory of a total loss. Then, in April, 1888, four months after collision, libelants finally decided to raise her; an operation, which as his counsel testified, "involved much difficulty and hazard." After one wrecking company had declined to undertake it, they employed another, at an estimated price of $1,800 to $2,000, to do the work. Thereupon, but without giving any information as to such estimate or refusal, libelants' .counsel, at one of the hearings before the commissioner, asked claim.ants' counsel to stipulate that the vessel was a total loss, which the latter <l.ec1ined to do. The vessel was raised by libelants at a cost of $1,900. Her value when raised was from $1,100 to $1,200, and such of the .cargo as was raised sold in its damaged condition for $275. Libel" Jlnts thereupon placed the vessel in the hands of a ship-builder near New Haven, without limit as to price, to be repaired and put in as good condition as she was before. The repairs cost $6,800. They .claimed the cost of raising and of the repairs, with freight, demurrage, value of cargo, (less $275,) and personal effects, 'with interest on the £everal items. The commissioner allowed their claim, except that he reduced the repairs to $3,850, the value of the vessel before collision. The district court disallowed the demurrage, and adopted the commis·sioner's recommendations as to the other items. Claimants insist that they should be held only for the value of schooner, cargo, freight, .and personal effects before collision. We think that is the correct measure of damage. It is no doubt true that the mere fact of sinking is not :sufficient to warrant a finding that vessel or cargo is a total loss, (The Baltimore, 8 Wall. 377; The Bristol, 10 Blatchf. 537; The Th01l1aSP. Way,
28.li'ed,B,ep. 526;) ltnd where it appears probable that they may be raised:withput Il)uch 'expense; .and repaired, owners are not insist upon .damages, as for a total loss, where they have not measures to mitigate the loss. So, too, allowance has, Qeep. .made for the COst of raising the sunken vessel, even though she wa!'!. nt1t subsequently when it was necessary to raise her in or<;!eJ,io ascertain whether she should be abandoned as a total loss or whenever the owner is required to' remove her as an obstruGtionto navigation.. The Empress Eugenie, 1 Lush. 139; The Venus, 17 Feq.Rep. 925; The America, 11 Blatchf. 485; The Nebraska, 3 Ben. 261; ,'fheMary Eveline, 14 Blatchf. 497. But in these cases the vessels were sunk ill rivers or harbors or comparatively shallow water. None are oiteq,or,havebeen found Where, under circumstances similar to those in bar, it has been held incumbent upon the owner to go to any e:ltpenSe lor the purpose of raising her. The Columbus, 3 W. Rob. 161; TlwFalcon, 19 Wall. 75; The Franconia, 16 Fed. Rep. 153; The Scow,,, aBen.18l. It is true that the averment in the libel that the schQQner and cargo we,re a .total loss was controverted by the answer; but upon th!! issue thus raised, the proof in this case falls far short of that which in The Baltimore, supra, was held to warrant the conclusion that might be raised without mU0h expense. A wrotlgpoer who has struck and sunk a vessel in deep water must show a very different case from this before he can insist that the duty of raising her should be imposed on her owners. Nor did the refusal of claimant!!? counsel to stipulate .that she was a total loss change the situation. Whether they would or would not abandon was for the owne1'S of the ship tQ determine. ,Their knowledge of the true value of the aMp, and ,of the estimated cost of raising her, supplied them with infQrmatiQIl J;llaterial to the determination of that question, which was not in the possess,ion ofthe other side, who by the request to stipulate were chaUenged to determine as tofacts not known to them. The decree of the circuit court .should be reversed, ..1· .1 the case remanded to that court, with instructious to enter a decree for the libelants for the value of ,ship, cargo, freight, ,and pel'Sonal effects, as Jound by the commissioner, with interest fro In December 14, 188';, the date of the probable termiuation of the vOyap;e, and cOlltS oLthe district court. Disbursements of th!! circuit court and costs of this court to the claimants.
COl 'iJ. WASHBURN.
, I ,.
omJ.t. s.b.New Yor'k.':March
DUIA.GEg-INJURY TO VESSEL-DUTY TO PREVENT:
A canal boat sank at low water at defendants' wharf by their fault, and careened on her'sideli.t about 4: 45A. M. The tide began to riseabout6'.l. M., and before the cargo wall reD1Aved some por,tious of it were <1amaged. There had been men on the d.ock before the tide began toHse, but as they demanded double the ordinary stevedores' wages, their services were refused botll by tile master and the foreman of the,Ubela.nt. Held, that the well-settled rule of the obligation of tbe ship to use all reasonable dili,qence after an jnjury to prevent subsequent increase of damages, should have 'led the master tO'employ help at once, even at advanced wages; and tl1at the canal boat could not redOver for such pamage to the cargo as might have been saved by employing such
In Admiralty. On exceptions'to commissioner's report. Robi'l'tWYl" lJright, Biddle Ward and Mr·.Hough, for libelants. Horace G.' Wood, for respondents. BROWN, District Judge. Exceptions have been taken to the commiesioner!sreportAlpon the damage caused by the sinking ofthe libelant's barge, F. A. Murphy, at respondent's wharf tbrough the fault of the.latis:that at least a part of the loss is attrib· ter. The ground ;of utable to thenel5ligence of the libelant's men, in not removing the Cargo at once, beforeit was injured by the rise ofthe tide. , The canal boat sank at low water, and ca reened on her port side at about 4:45 A. M. The tide began to rise at about 6 A. M., It was half past 9 A. M:' before the removal of the cargo was begun in earnest. During this int.erval a considerable portion of the cargo, which consisted of barrels offiour, hay in bales. and feed in bags, which was all on deck, and which had shifted to port as the boat careened. was wet and damaged by the rising tide·. Up'on theconfiictingevidertce 1 am not satisfied that at low water when the boat careened, there was any such depth of water on the low6t rail as three or foUr feet. Besides the contrary testimony of the claimants, there are other undisputed circumstances as to the amount .of' the rise of the tide, the depth of the water, the slant of the boat, and the work of the men in the water, which indicate. thaHhe port rail was not at low water submerged to that amount. But wbether that depth of water was exaggerated, or, not, there can be no doubt that a considerable part of the cargo waS damaged through the rise of the tide five feet up to high water a little before 110'<;lock. Between 5 and 6 o'clock in the morning some haIfa dozen men were Oll the. dock willing to work, but demanding from 90 cents to $1 an hour wages, the regular wages of stevedores being only 40 cents an hour. The captain declined to employ them in removing the cargo,. because he considered the wages exorbitant; and, also because,as he says, he considered the men loungers and untrustworthy. At7 :45 in answer to a telegram, one of theforemenofthe libelant arrived, who set to work about eight maR to unload.the cargo.! .After working for about 10 minutes they demanded from 50 cents to 60 cents an hour, which the foremaIideclined