they did do. They did wear ship,-some of the officers claiming that they came within a balf an hour to the place of collision; others, that they were a quarter or a half a mile to the leeward. But it is apparent from the evidence that they could and should have done more to save the crew of the vessel, which they must have known was suddenly sunk. The conduct of the officers was inexcusable, and their account of their doings after the collision is wholly unreliable. The collision took place about 10 in the evening. The officers of the Dunn say they lay to an hour or more at or near the place of collision. This statement is not sustained. The steamship H. F. Dimock, with freight and passengers, passed over the wreck at 10 minutes past 11, and heard the shrieks of 'the men then clinging to the rigging, which were sufficiently loud to be heard in the state-rooms of the steamer. The engines of the steamer were reversed, the vessel brought about, and boats lowered, which reached the wreck within 20 or 30 minutes, but the men had disappeared. At this time there was no vessel lying to in that vicinity, and none in sight; and I therefore must find that the account of the officers of tlle Dunn is not reliable in this respect. On the whole, the Robert Graham Dunn must be adjudged in fault, and responsible for the collision; and at the proper time, in view of the limited liability proceedings now pending, a decree will be entered accordingly.
THE RELIEF. GRADDICK v. THE RELIEF. (DIstrict Court, E. D. South Carolina. August 9, 1894.)
COLLISION-TuG AND SAIL-FAILURE TO
A sloop met by a tug and barge near the shore· of a river, and struck shortly after going about, must be hela in fault for failing to fill out her tack, by two or three lengths, or to luff into the wind until the tug had passed. Under the rule that the steamer must keep out of the way, a tug meeting a sloop. tacking towards the shore must be held In fault for passing so close as to involve danger of collision in case the sloop should not beat out her tack to the utmost limit.
SAME-DUTY OF TUG-FAILURE TO GIVE ROOM.
This was a libel by Henry T. Graddick against the steam tug Relief to recover damages for a collision with the sloop Shamrock. Mitchell & Smith and R. W. Memminger, for libelant. J. N. Nathans, for respondent. BRAWLEY, District Judge. This is a libel for a collision which occurred in the Ashley river about noon on April 26, 1894. The sloop Shamrock, loaded with gravel, was beating down the Ashley river with a light wind from the southeast, the tide being just past the flow. The steam tug Relief, with a large barge in tow, was coming up the river, and sighted the sloop near the west bank, as she was about tacking to the eastward. The collision occurred
neal' the eRStbanlt. ifInd,)the sloo"p was sunk. ,The master of the l!looptestifiesthtlt ile ihad beaten out his tack to the eastward, and had turned upoDnis stllrboard tack, when the barge ran into him. If this :itestimony is to be, taken as true, be no doubt as to where the faulHies,forthe,rules0f navigation applicable thereto have ibeen settled by tepeatedadjud1cations, rand are embodied in the statute law, which prescribes tMt:
"If twov:essels,' One of whl011 Is a sail: \'essel,and the other a steam vessel, are·,prQCeedillg in sucbdirect.!on as to involve risk of collision lhe steam vesselsbail keep out of of the sail vessel." , Rev. St. L. S. § 4233.
ASlthe didi occur, and a.El: there were no circumstances which ren.dered 'it inevitable, it is mariifest that there was blame 1ilonieWhere; anll;as is'ns1iral.; there is conflict of 'testimony. o.f theslo()p>is' riot supported by any other witness 'of th'eiacb'ident; in;hl'Sversiondfthe story. There were ,'tWo 'Other l!llnop: Neither of them were ex'for the libelant that one of these mencoUld"not, be f-outtd'j' bnt one :of them was present, and not called., ;U may not be fuir to attach too imieh:significance to this ()mlssion,lr6r; having out a'primafacie against the steam :tIie'libelant clOu1tN'est; but he doas sd at'his risk As there 'is in these:eases,lthe court is entitled ar to h' and see all the witnesses, so that it':Jllay; notwithstanding such conflict, reach a conclusion, as .t9 how the accident really occurred; and, while it will not be assumed that the other witnesses would have contradicted omission to produce them leaves him unsuPP2rted upon a. material point. Such omission, . considered in connedtlon"with the''testimony of the master thiat he was not called upon to<lookoutfot'ts,tearners,as it was the steamer's way, rests, upon an erroneous conception of duty to keep out of .. it is.t.rue that duty'of the steam, "essel the to keep .out:'uf the way of the sail veasel, there is a correlative duty 'on the p(lt't'of the sail: vessel; when approaching a steamer, to keep its course, and a failure so t() do must be imputed to it as a fault. ,1fle witnAASQl;I, for the master of the sloop changed his cQurse almost immediately passing the bow of the tug,'·]jn8tead· out,his tackto the eastward, where he had room enough to do sdm The river at this point is :about ,}Vide i t1,le channel lies near tl,l.E(, eastern shore;. and the ShamrQC).:. liaving1:;leenstruck by the1:;low of the barge on hel" port side, just in 17 feet of watel", near the :bank. direet testimony as to the exact distance of the :sloop, as she now lies, from the SRm-e. Counsel for libelant state that her stern is about 20 or 25 feet from the shore. The master of the tug 'tel/tines ,that she did not sink at !the point where' she was struck, but "that the barge, in veering around, carried her fUl"ther inshore., . Three classes' of witnesses ,ha,ve testified,.;.,.,.the master of the sloop, the master and crew of the tug, and certain disinterested onlookers. On! the vital qilestiQna$to whethe,rthesloop had filled .out her taclt tQl·theeastward, 'the of tbe sloop stands uncor' i
robollated, sa"te by the testimony of two'Witnesses who 'were on the western bank. 'They Rre disinterested; but their testimony upon this point iso! little mlue, because, from their position and distance from the scene; it is ftnpossible that t.heY should know accurately whether the sloop had room, while the testimony of the master and crew of the tug is supported by a disinterested witness,-a gentleman of high character and intelligence,-who happened to be on the tug that day. He was in the pilot house. His attention was closely fixed upon the sloop, and his testimony is positive and direct that the sloop was two or three boat lengths from the shore when she tacked, and that if she had filled out her tack to the eastward, instead of changing her course in face of the approaching steamer, she would have avoided the collision. All of the witnesses for the respondent concur in the statement that there was room for the sloop to beat' out her tack to the eastwaI'd, and' that the sudden change of COUI'se caused the coUision. When it is considered, that the shore atthis point is in no sense a dangeI'ousone, that it is boI'deredby amaI'sh which at high tide might haye had watersufficient to float the sloop, and that no great peril would have ensued even if the sloop had gone ashore at that point, it is impossible toescape'the conclusion that the sloop was badly handled, and that the peril might have been 'avoided altogether, or if the master of the sloop had not lost his head. If he had held his course but a very short time OI' had luffed up the wind" EMher of which was available by competent mianagement, he would have avoided the collision, and his failure to do 80 must be imputed to him as negligence. But this conclusion does not relieve the tug from all blame,and she cannot escape It was the primary duty of. the tug and tow to keep out of the way. From the time the sloop was sighted, it was the duty of the steamer to watch her progress and direction, and to adopt such timely measures of precaution as would necessarily have avoided the collision. The mct that they did collide shows .that there was a danger,'to be guarded against, and it does not satisfactorily appear that the master of the tug took such account of all the circnmstances of the situation as prudence obviously demanded. He testifies that he blew two whistles to indicate that he wa.s going to pass to the stern of the Shamrock Yet he did not change his course. The man at the wheel testifies that his wheel was amidships until just before the collision, when he put it hard down. Although the channel was near the east bank, . there was, in the then state of the tide, plenty of water in the river; and he could have borne away, or slacked his speed, stopped, and reversed. He took no such timely precautions until it was too late. When there was abundant room to keep properly out of the way, it cannot be held to be prudent or justifiable navigation to take such a course as would bring him into dangeI'ous proximity to the sloop. Although it is held that the sloop did not run out her tack as near to the shore as- she possibly might have gone, she did not come far short of it; and although tM master of the- sloop might, by goQd seamanship, ha.ve. escaped collision by letting her sheets go, and
.the must be made for the confUSIOp incident to .such qj\ngerousproximity,and the master of the be absolved the :clIarge of obvious imprudence in faIlmg .to keepa. sale' margin between himself and the sloop.. that the close line which the was making upon the sloop's course was ,not a reasonable and subwith her maritime obligation to keep out of the stantial way, she must also be held in fault. Let the damages and costs, therefore, be divided.
KILLIEN v. HYDE Court, S. D. New York.
aL 25, 1894.)
Libel by ,::Mary Killien, administratrix of Martin Killien, against the owners of two vessels, alleging negligent collision by which intestate lost lJislife. E. N. &T. for libelant. AlexaIider'& .Ash, for respondent Hyde. Wm. J. Kelly, for Long Island R. CO Judge. The above Jibel was filed by Mary ofLMartin Killien, her·husband, to recover the statute of this state, for the death of the de:tq;ema,n on the tugboat William H. Walker, on the aftern<mlof ;J,une 13, 1893, [email protected]