'.'In .order to excuse an erroneous movement on the part of the saUfng vessel·. tbeproximity of the steamboat, and. her course and speed. must be such mariner of ordinary firmness and competent knowledge and skill would to alter his coul1le to enable the vessel to pass in safety. BiI,t. in order to justify this, the dange'rons proximity must be. produced altogebbet by the steamboat," .', .Thedecree of the circuit courti,saffirmed, with iIitere!lt, the costs of to be l?aid by the ' .'.
(1X8trict Court. B.D: New;F"ork.
, ' , .
July 29. 1892.)
Cor..trSJoJ:":'FbG-':"SPEED. . .' . " , ., III a: ;tog 80 densetbat a vesselcannot be distinguished more than dve or six hundistant, 10 knots, or upward is not "moderate speed; n and. a steamer mov-
ing IIot iuch rate off the Grand Banks, and which ran down and sank a flshing vessel'Gtan:chor, was held solelytn fault lor the collision on account of her speed, the evidence showing that the flshing vessel was complying with the regulations as to fog horn and bell, although these were not heard by the steamer, probably becausep! the noise of her 'own navigation at such speed in a rough sea and strong wind.
In A41l1il'alty. LiheUor oollision. Decree for libelant. Ooudei't Bros., for libelant. Shiprnan;Larocque &: Ohoate, for claimants.
BROWN, District Judge. On the 14th of July, 1888, at a few minutes past·:9 o'clock. in the morning, the steamship Fulda, length 420 feet, proeeeding On a voyage from Bremmerhaven to New York, came in cQllision, during a dense fog, with the libelant's two-masted schooner,Jenne Edouard, at anchor onJhe Grand Banks. in latitude 44 deg. 45 min..nprth, and longitude 54 deg. 50 min. west. The. wind was strol)g}J,'pmthe southwest, and thj9re was a considerable sea, with 8i heavy, ground swell, so that fishing was suspended. The schooner WAS, first seen by the lookout and by the officers on the bridgeat about the same time, estimated about 500 feet distant, :and·nearly straight ahead, being a little on the starboard bow. The wheel was at once ortll;jred and the steamerswung only about of a.. voint to' port. Her steDl , however, struck and carried away the boweprit and.As she went past, her .anchor caught the schooner some. considerable distance, knocking a hole in her bOw and carrying away her foremast and maintopmast. . E'avjng;got clear in the fog., the, steamer around for an hour or more, and not finding the schooner or hearing from her
further, went on her voyage. The schooner continued to fill, despite all efforts to keep her clear, and on the second day after was abandoned by the crew, and shortly afterwards sank. The Fulda at the time of collision was in charge of the second officer. who with the fourth officer was on the bridge. I do not find that any blame attached to the lookout, or to the other management of the steamer,except as regards her speed. On this subject the evidence shows that her full speed under 62 revolutions, in favorable weather, would be about 17 knots. About a half hour before the collision, in consequence of the increasing sea, .and because, as it is said, the ship did not seem to be steering satisfactorily, the master ordered her previous half speed of from 40 00.42 revolutions, to Be increased to 50 revolutions a minute. This, in favorable weather, would give a speed of about 13i knots. The considerable sea, to which !ill the witnesses testify, would undoubtedly reduce her speed some 2 or 3 knots. The second officer who was in charge afthe navigation, estimated her speed at 50 revolutions under the existing conditions to have been 10 knots. It is not, however, material whether her speed was lO knots, or 1 or 2 knots above that rate. Either was much in excess. of what has been held, as respects similar vessels i.nrepeated adjudications, to be the "moderate speed,1' req1,lired bylaw,during thick fog. The Nacoochee, 137 U. S. 330,11 Sup. Ct. ,Rep. 122;. Leonard v. Whitmill, 10 Ben. 638,646; ThePennland, 23 Fed. Rep. 551; The Britannic, 39 Fed. Rep. 395; The Normandie, 43Fed. Rep. 15!, 155-157. In fog so dense that a vessel cannot be distinguished more than ·fiv:e or six hundred feet distant, a steamer like the Fullia, though keeping her full steam power in reserve, could not expect to be able to stop before running into a schooner at anchor ahead of her, if she was going upwards of six knots an hour. The N01"mandie, ubi Bupra, note 2. The B,'itaQmic. 39 Fed. Rep. 3.97. Any greater rate. of speed on the Banks where other vessels are likely to be met with was, therefore, at her risk. provided the othE'r vessel performed her statutory duty. It is argued that the master was justified in increasing her speed enough to make her steer properly. No doubt with increasing speed the ship would go straighter and steadier; but the evidence does not show that the Fulda had become in the smallest degree unmanageable; or that any such speed as was maintained, either before or after the master's order; was necessary to keep the ship under reasonable and sufficient control for practical purposes, although not perfectly steady. It is not intimated that the Fulda was. not as manageable at" slow" speed as ordinary vessels of her class; and in common experience such vessels in rough weather often go "slow" without difficulty, which for the Fulda would be about six knots. As respects manageability, see The Normandie, ubiaupra, pp. 155-157. 2. It is urged that the schooner wal'l in fault for not properly sounding her bell, being at anchor. Numerous witnesses, however, for the schooner testify most positively that the bell was rung forward, and a mechanical fog horn blown aft, every minute, and that these had been thus sounded for a considerable period before the collision. An additional reason for keepv.52F.noA-·26
was that twbof the s9hoonel"s meti lng a dory,whol!e't'eturn to the s'choort6l' ,it'was desired nals." Of the on board' tbe'sc¥1ooner, 3, deadj abd'of the remaining '13,8 have'belm tis witnesses, hot', howeV'er,' inclUding either Of the 2tnen who were sounding the bellanu !fog :horn. A third seaman, Viel, Wi],SUpon: 'deck at the timedfcalUsionj 'he had been drawing molasses from a barrel,' to take below Where tth'el'estof the crew were at breakfast. Viel testifies that on 'deck the horn arid beUwere regularly sot1ndedj and he others who were below testify to the same thing. That were sounding 'the uponwawh, is shown by, tbe' fad that they gave an alai'n'l to the men below; td the effect that the stea.mer was running upontMm. This was done in' time to enable nearly; all' to come "on deck, before collision. Tbeyreached" the deck, howevel';'only jUst hefol'ethesteamer struck. ' , Upon iall this testim6ny and the acts of the perSOnS()D board, I cannot dOUbt that the signals were sounded. as' 'required; ,That they were Mtbeard OIl board the steamer, il3 riot surprising. Ia'the 'interval be':' tween the signals allowed by law, namely, 'two minutes\ the steamer, at the rate was movihg; would pass over 2,000 and with a strong wind and a considerable sea, such asrocause; the Fulda to 'take c0nsiderable water ondeck, and at the spaetht which she was moving, the noise aJ1d commotion attendant on the navigation furnish abundant reason why:the schooher?S signals;thonghproperly given,wlght not have beenhea'rd' on the }I'uida,without any resbrt to possible 'ditions of the lltmosphere. ,The Lepanto, 1nFed. Rep. 651, 655;"658. ;<fae that1itfterthe Fulda'ssIkethvlls diminished, and while ehe'wl\s steaming about to find the s6hdOner after the 'aCCident, her officers did hear various' signals in different quarters, although none had been heard before, a strong indicMion that the previous failure to hear signals from the schooner, or from any other vessel, was due to the noise and commotion attendant on the speed Miher own navigationundersuch circumstances, rather than to any neglect in the schooner. The Buffalo, 50 Fed. Rep.B30. I must find, therefore,: that the schooner was not remiss in sounding signals:lls reqUired; and 'that the speed of the steamer, not being the moderate speed required by law under suoh circumstances, was at her risk; and tbat she is, therefore, answerable for the damages. Decree may be entered accordingly, with costs. '
TUEALEXANDER FOLSOM. ,
Co. et al.
(OirC1.ll£t Oourt of Appeals, SiXtfl, Oi-muit. Octobef 3, 1892.,
COLLISTON....8'rE.lMIIlR AND TOW-SUDDEN SHEER.
The steamer D. down the middle channel of Lake George, where it is about 180 feet wide, met the steam barge F., with two schooners in tow. The latter three lIad their sails set, and a fresh southeast wind was blowing, but tho weight of evidenoe·showll.dthat the sails were not drawing to any considerable extent, and that all three were :lepending on the F.'s engines. The F. signaled a desire to pass on the east side, but the D. replied that she would take that side, and the F. assente4.:E/ach proceeded to the proper side, leaVing about 60 feet between them, the schoon,ers keeping in the I!'.'s wake. While passing the F., the D. suddenly sheered' two points to ·starboard. To recover her course, her engines were immedhlotely .accelerated, but, collision. impending, they were reversed. Sheatrnck the first schooner, however, nearly head on, a few feet from its port bow. on the evidence, that the schooller did not sheer or luff to windward, in obedience to an alleged tendeney created by }ler sails; that there was little or no tendency to do so; that the claim was an afterthought with the D.'s officers, who voluntarily declined to pails on the port side, and chose to pass to windward of the tow; .that the D. Passed between the ll'. and the schooner, and struck tb.e latter while recovering her course; and that the latter was not in fault for failing to anticipatethe D.'s sheer-, and being inreadiuess to go further to port. 44 Fed. Rep. 932, reversed,
In view of the established fact t.bat the speed of' the F. and the D. was about the same. and that the D. had three times the F.-s displacement and twice her draft, -the D.'ssheer could- not. be attributed to suction caused by an Improper speed on the part of the F. at the. moment of passing.' 44 Fed. Rep. 922, reversed.
The positive and unimpeached testimony of a Ilteamer's officers as to her speed at a given time is entitled.to more weight, especially when corroborated by independent facts and circumstances, than the opinions and estimates of witnesses on other boats at a considerable distance ahead or astern of her.
Appeal from the DistrictCoQft of the United States for the Division of .the Northern District of Ohio.. In Admiralty. Libel by William Chisholm, trustee, and others, against the steam barge Alexander Folsom and the schooner Mary B. Mitchell (the Mitchell Transportation Company being claimant of both) for collision. Decree for libelants. 44 Fed. Rep. 932. Claimants appeal. ,Reversed. Frank H. Co/nfield, Henry S. Sherman, and Henry C. Wimer, for appellants. Harvey D. Goulder, for appellees. . Bef()l:e BROWN, Circuit Justice, and J AQKSON and TAFT, Circuit Judges. JACKSON,Circuit Judge: The collision which gave rise to and forms the subject of inquiry in this suit took place in the natural or middle channel "0£ Lake George, at or about 7: 30 o'clock A. M., on August 13, 1890, between the propeller Devereaux al1d the schooner Mary B. ell, which was the first of two schooners in tow of the steam barge