that purpose. If he 'did go pUl'poee, that he urinated there, would be -unimportant; and that he intended to urinate there when he went would be equally unimportant, if he went to leave his clothes. To sustain tbis branch of the defense, the facts, on which it rests should not be left in doubt. 'rhe respondent was guilty of plain, if not gross negligence, which tended directly to the accident--negligence whiCh, in the ordinary course of events, would lead to it. When therefore he charges the result to misconduct of the libelant, ,he shoulcQ. be held to clear his charge. While I.abstain from the useless task of discussing the conflicting testimony on thi.s point, I may call attention to the fact that the responden.t's witnesses are almost exclusively his or agents (of the ignorant class engaged in such work); that the testimony consistp. in alleged confessions of the libelant, made immediately after the accident, when he was suffering intense pain, or after being taken to the hospital, and when, as his attendants and nurses say, 'he was generally insane in consequence of his injuries. That the witnesses should have held such conversations with him as they. relate at the times referred to, seems very extraordinary; that he shoul!l bave been substantially scolded or remonstrated with by them (his fellows) for going where he went, just after the accident, .in his then deplorable condition seems incredible; and it is not less so that men who had learned how the accident occurred should have gone to the hospital, and in his condition at the time, sought to bave him explain the occurrence. The witness relied upon to prove that he saw the libelant urinating on the deck does not say in terms that he saw it. The,language is equivocal. If he meant this, as probably he did, be should have said it; should have been required to say it. But if he had said it, it would simply be saying that while there chang-ing his clothes, he urinated-which as we have seen would be unimportant. This Witness, in substance, says he changed his clothes there. In view of the libelant's positive statement, and the testimony of his witnesses on this subject, ] cannot, as before stated, regard the allegation as proved. A decree may be prepared sustaining the libel.
THE GRACE SEYMOUR. THE EDWIN REED. FULTON v. THE GRACE SEYMOUR. HANSCOM v. THE EDWIN REED.
(District Court, S. D. New York. July 19, 1894.)
CoLLISION-SAIL VESSELS-RIGHT OF WAy-LOOKOUT-LuFF IN EXTREMIS.
The night was moonlight; the wind, N. N. W. The bark R., deeply laden, headed east, and the schooner S., sailing light, headed each a point free of the wind, and making five to six: knots, were approaching one another. Each had seen the other's sails two miles off on the lee bow. The bark's pilot could not see ahead, and the watch noticed no more of the
red IIgbt wall, c1I)Be aboard,. tbougblt must ba'nt beeD to seveq' inlnutes. There· waaj that· the ') ,o(:thewatcb was busywitb other things. Both then ported hatdj anl1: the schooner luffed twopointa, and receJved a glancing blow. Held, that since the bark was on the port tack, with a tree wind, It was ber dUty tQkeElP out of the way, and that she had fal1edlD this by reason of , neile<:l;to keep a proper, contlnuous lookout.
.,. "..' .' .1", Visible tor five
Libels by Allen Fulton against the schooner Grace Seymour and by Howa.rd'H. Hanscom against the bark Edwin Reed. The ftrst and a decree· allowed, on the second. WiQlt, .S1l9udy " :Mr. Burlingham, for the Edwin
t'i ' '.
& Sturges,· for the Grace Seymour.
District above libels were tiled to recover sustaine(}.by the bark Edwin Reed· and the schooner through cql,lision between those ves$els which 00curredat abQut 10 p. m. of November 30, 1892, in mng Island Sound about'twp .miles west of NorWalk island. clear, with moonlight; the wind, about N. N. :w.,anl;'ltpe sea light., The, bark was of 1,164 tons burden, about 240, long,. deeply loaded, and dreW' 21 feet. ,She had been previOUsly . about N. E. by E. t E., and was in charge of a pilot. . ,/,t'he Seymour was a three-masted schooner, of about 600 tons . 167 feet long, sailing light, drawing, but 8 feet of she was heading about west Each was making from five tosi:,t )[nots per hour. The sails of each were first seen by the other wheJ;1 they were at least two mUes apart, and. on the lee bow ofeac1;l.' Just before collision each ported hard; the schooner luffed, as .1 tind, about. tWo. points before collision, and the bark paid off probably not over half a point; 80 that at collision the bark's .port bow struok ,the .schooner's port side just aft of the fore riggi'Qi, by a glancing blow, which raked her fore and aft, and startedseteral knees, timbers, and plank sheer, but without breaking any hole in her side. The bark's port cathead and anchor caught and carried away .the schooner's fore rigging and sails, and having got foul carried the schooner astern along with her. The bark had her jibboom broken and sustained some other damages. The schooner being to windward dropped her anchor, and after an hour the bark drifted The bark contends that the collision was caused by the schooner's luff; the schooner contends that the luff was in extremis, to ease the blow, and that the bltrkwas solely in fault, in not keeping out of the way. The pilot testlties thaftbe bark was not sailing close-hauled, and the other evidence that she was one point free. I think the schoon,eralso had the wind one point free. This, however, is immaterial the. bark, being on the port tack and also having a free wind, was bound by the rules to keep out of the way of the schooner, which was on the starboard tack, and was bound to keep her course.
THE GRACE SEYMOUR.
I am persuaded from a careful consideration of all the testimony, that the sole blame for this collision rests with the bark, by reason of her ·failure to keep a proper, continuous lookout; and by reason of the preoccupation of the first mate, who was the officer in charge of the deck, with the duty of superintending the seamen on the forecastle in heaving on the windlass, and taking care of the bars, ropes, etc., on the forecastle; so that the necessary attention was not given to the schooner, or to the navigation of the bark, so as to enable her to perform her duty to avoid the schooner. The bark was so high forward that the pilot and seaman at the whet'l could see nothing ahead; and though one or more reports of the schooner were made by the lookout on the bark, the first mate, who was forward, did not give even a look at the schooner until the last moments, at or near the time when she luffed to avoid immediate collision. The lookout also, after first seeing and reporting the schooner's sails bearing a little on the bark's starboard (lee) bow, and not long afterwards reporting what he thought was a dim green light on the same bearing, paid no further attention to the schooner until her red light was seen to be very near, about the time she luffed; the bark's wheel was then ordered, and put, harda-port,. but too late to avoid collision. In the meantime, the bark had been showing to the schooner, whose officers and men were attentively observing her movements, first, her green light, then the red only, then the green, then the red, and last, when very near, the green again. These lights were always seen about a point on the schooner's port (lee) bow, as the witnesses testify, and without much change of bearing. Even if the schooner's green light was seen at all, which I greatly doubt from the courses of the two vessels, there must, nevertheless, have been a very considerable interval of from five to seven minutes at least during which her red light was steadily visible to the bark, i. e. showing twice on the bark's starboard bow, and twice a little on her port bow (in consequence, no doubt, of the bark's own changes), during all which time this red light of the schooner was not seen by the bark at all, because no continued attention was paid to the schooner; and it was not seen until the vessels were close aboard, within two or three lengths at furthest, too late for any effectual maneuvers. Tht' situation was one that made careful observation by the bark necessary. The schooner, from the time at least that she was a mile and a half away, was showing her red light, and showing it mostly to the bark's green light. The headings of the two vessels differed only 21 points from oppOsite; while the combined leeway of the two amounted probably to at least It points, the bark's leeway being probably about i that of the schooner; so that their actual courses, from the first, differed from opposite by less than a point. Each was thus all the time heading to windward of the other, except when the bark yawed enough (say about one point) to show her red light. The fact that ther.e was no substantial change in the bearing of the lights, as the vessels came nearer to each other, would have made it obvious to the bark, had any con-
up, that deCided and timely heri;piirMn order topel'form her duty ,tokeep.oUi:t:of the sch:0Ionev's 'Way" .Through theba.r.k's inattention, ·nothingi'WQsdone>by"Ber,untilutoo·ila;te.The 'fault of the bark is '. , ' I see no fo-rlMMing the schooner chargeable .with legal: fault, hei:'i final! luW was amista]re, which is by no ,means certaiIl.i ll'he;ibark's evidenqe on, that point is entitled to very Httle weight, iasmterrthefirst light:iSeen by her there was no ob13ervationi ()f till coUislon; was. imminent. The bark's exhibitionfof'; ;red Jight: twice, Vtas indicative of her intent to go to leewM'd. ,Jt'waslil!oLuntil the bark's last change to green, when quittulteaa'jand·)wheti she seemed coming straight upon the bo.urse:afteifitwo,contradictory changes; that the schoon-er luffed·. : ,The tlituatwnwasthreatening in the:extreme. It was ,brought,aooutby, the >19rass fault of' the' bark, continued down to within ,8 few momentlil l that baftledall calcula:tion by the schooner.:as ,to the barlt's'intent; so that even if the ::schooner's luft was amietake, the, bark would be precluded from taldng of it, 3$ :it was done in extremis. ,The· Elizabeth .Tones, 112 U. S. 514, 5 Sup. Ct. 468. . The bark contenlblthb>t the schooner luffed four points. This is ,improbable. lIer wheelmlltD.says he noticed the compass just at "co1lision, a:ndtbat the', :c!ulngewasdbut two points; her heading ,b.emg thenW.N.W. ''1'he,blow was a glancing one, and it ·seems improbaJt>le. t4a.t:the"angle of qoUision was as much even :$s,tour points; ,If so muehas that,the great weight and force' of the bark would, I thlnk!hal'1e broken. a hole in the schooner's hull, .instead of raJdng along her :8iQe; andU the angle of collision did not exceed four points, · supposing ·the ,bark to have paid off only a half point before collision,: which i8.'o'& much as her testimony will at collision north of .admit, the'$ch09nerdofild not W.N.W. She was liablt! to make so, much leeway, being light (one to '. one-half point saYlil'the'IUaster) that I credit the positive testimony tha:theJrpreviousheadingwaswest. Her luff, therefore, was not over two. points;, andaduff of only two points would make very little ber:actual position,. as a drawing of the curve will show,-a difference, I think, insufficient, as the schooner's witnesses.·teJiti:fy, to ha1e avoided the ,collision. Considering the bark's grOSjii ,fault, the scbooner cannot be, held unless her fault is clearrandthis is not made 0ut. The City of New York, 147 U. ,S. 72, 85,·1l8: Sup. Qt.' 211. The. UbeLagainstthe'Seymour is; therefore, dismissed, with costs, and a decree, allowed against the E, Reed, with costs. . .
,tinuobs watch ol the schooner
THE ROBERT GRAHAM DUNN.
THE ROBERT GRAHAM DUNN. GRANT v. THE ROBERT GRAIlAM DUNN.
(Dlstrlct Oourt, D.New Hampshire. No. 222.
1. COLT,ISTON-SATUNG VESSELS-HoLDING COURSE-LoOKOVTS. A vessel sailing free is bound to keep out of the way 9,t one sailing dose:
April 2, 1894.)
hauled. snd It she fails to change her COur8(>. 01'. after changing It, tails, through the InexcUsahle absence of ber lookout, tl> maintain It steadl.ly, and thlis causes a collision, she Is liable.
SAME-ABSENCE OF L1GHT.
The alleged of a green light Is immaterial, when, trom' the sltul\ltion, Its presence could not have averted, or its absence contributed to, the collision.
This was a libel by Isaac N. Grant against the schooner Robert Graham Dunn to recover damages for a collision by which the schooner Captain John was sunk. Benjamin Thompson, for libelant. Carver & Blodgett, for claimant. ALDRICH, District Judge. The Captain John, a two·masted schooner, sailed from Roundout, in the district of New York, September 16, 1893, Boston-bound. September 20th, the Robert Graham Dunn, a three-masted schooner, left Portland harbor for Newport News; and about 10 o'clock of the same evening, through the fault of the Dunn, the two vessels were in collision off Ohatham bar, the bluff of the starboard bow of, the Dunn striking the starboard: bow of the Captain John, carrying away her jib boom, disabling her foremast, and cramping her boat, resulting in the total loss of the Captain John and cargo, together with her crew. The Dunn was', running light and free at the log rate of about' eight knots,-her rate over the ground being accelerated three knots by the action of' the tide,-when the red light of the two-masted schooner, which was' the Captain John, was sighted about a mile away. At this time herlight bore about a half a point on the lee side or port bow of the Dunn. The sails of the two-master were plainly seen, and she waS' closehauled, with the wind N. by W. or N. N. W. The breeze was quite strong, and she was heading N. E. or N. E. by N. The tide was running westerly, or towards the shoals, and she was about holding her own. Under such circumstances the Captain John had the right of way, and it was plainly the duty of the Dunn to keep clear; and, as there was plenty of sea room, with reasonable care the collision could have been avoided. The contention of the Dunn is that, recognizing such duty to keep clear. she luffed a point or a point and a half for the purpose of passing under the stern of the two-master. It is probable, if this be trne. that if the two vessels had held their courses the Dunn would have passed at least an eighth of a mile to the windward of the Captain .Tohn; and it would follow, theJ;'efore, that the vessels were in collision by reason of the failure of one vessel or the other to