THE FREDDIE L. PORTER.
(Oircuit Oourt, D. Maine. --.1881\
COLLISION-BURDEN OF PROOF.
In case of a collision between a sloop close-hauled and a schooner sailing directly before the wind, the burden is on the schooner to account for it consistently with her innocence.
EVIDENCE-ABSENCE OF WITNESSES.
The absence of important witnesses, whose presence might have been secured by the exercise of reasonable diligence, is open to remark.
3. DAMAGES-NET FREIGHT.
Where a vessel, chartered by a Plli1"Ol contract for a definite time, is sunk in t\ collision caused by the fault of the other colliding vessel, and become.; a total loss, the net freight for the unexpired time of ihe charter may be assessed as damages.
Wa,shington Gilbert, for libellants. Webb d I!a,skell, for claimants. LOWELL, Cr, J. The decision of this case in the district court is
reported in 5 FED. REP. 822, and 4 FED. REP. 89. The Hope, a small from Cape Ann to sloop loaded verY' deep with stODEl' was Boston on a fine moonlight J;ligpt, and was, close hauled on the starboard tackjwhen,she was struck on the starboard by the stem or bow of the large three-masted schooner FreddieL. Porter, bound from Boston to the Kennebec for a cargo of ice, and sailing with the wind aft.. 1he burden is on the schooner to account for the collision consistently with her innocence; and the defence is that the sloop suddenly tacked undel' thebowe of the schooner immediately before the collision. The mate of the Porter was on deck, forward, assisting the look. out, and there was a the wheel. Only the officer is brought forward as a witness. The libellants comment. very r;leverely on the absence of the other two. It seems that they deserted on the arrival of the vessel at her port of loading; but it would seem that, by rea· Bonable diligence at that time, they might have been found. The libel was served only four days after the damage was done, and the absence of these men is open to remark. The mate testifies that, being forward on the lookout, he saw both lights of the sloop ahead at a distance estimated at one-eighth or one· sixteenth of a mile; that he Oldered his own helm hard a-port, and the order was obeyed, and the change of course brought the port light of the sloop three points on his port bow and shut out the green light;
THE FBllDDIEL. PORTER.
then he ordered the wheel to be steadied, and went aft to loose the tackle of the main boom. Before he his destination he turned and saw only the green light of the sloop, by which he found that she had tacked and was running across his bow; then heotdered his wheel to be ported again, and the answer was ,that it was hard a-port; then the collision 'took place. The two witnesses for the sloop say that the last tack was made about 20 minutos before the collision. The mate's story cannot be accurate. His vessel was sailing directly before the wind; the sloop was five points off, and therefore he could not see both her lights "ahead, "unless when she was coming into the wind.to tack. If he saw them under t40se circumstances, he must admit that he had time to clear the sloop, for it was the first time he had seen her, and he was bound to see her in season; and he should have put his helm to starboard. I do llot mean that he did see a tack at that time. From his evidence alone, if it were uncontradicted, I should say that he or his lookout had failed to see the sloop seasonably, and I have little doubt'that tlie collision was caused by exactly that oversight. At all events, I agree with Judge Fox ·that the claimants have failed to sustain the burden of proof. I have examined the evidence as to the loss of the sloop. The master of the schooner was of opinion that she'wasllot much injured; but his wish was father to the thought. He took no' pains to verify it. After the suit is brought, it is rather late to begin to array circumstances and inferences upon a matter that could easily have been made certain at the time of the loss. I find' the preponderance of the evidence to' be that the sloop was sunk and totally lost. The question of damages for freight is more difficult The vessel was chartered by a parol contract, which bound the charterer to furnish her with employment for the season, in daily or frequent trips from Cape Ann or Quincy to Boston, at a certain price, by the ton, for stone carried. It was a single and contract, which much resembled an ordinary time charter. The district court assessed the net freight for the unexpired time of the charter. Upon the analogy of the insurable character of the freight under srich a contract, and of the authorities cited by Judge Fox in 4 REP. '822, though I think the decision may be an advance upon any:which has been I do nbt think it is opposed to any principle, and affirm it as reason. able ,knd just; Decree affirmed.
THE STEAM-SHIP ODER.
(District Court, E. D. New York.
July 20, 1881.)
A collision occurred in to the eaRtward of the Grand Banks, in about latitude 40 degrees, 1 minute, north; longitude 38 degrees,9 m'nutes, west. Both vessels were bound to New York, One, a bark, was suiling at a speed of four or five knots an hour, close-hauled upon the wind, on a COurS6 north, one-half west; the other, a steam-ship, was steaming at a speed of between 11 and 12 knots an hour, on a course west by north, half west. A light west by north breeze was blowing. Held, that, as there is no question in the case as to the existence of a green light displayed from the st-aruoard side of the bark, nor as to the brightness of the night being sufficient to render such light visible in time to avoid the collision, and as the question whether the steamer was approaching the hark from aft in a course that rendered it impossible for her to see the green light of the bark sooner than she did must be answered in the negative, the inference is irresistible that the cause of the collision was the failure on the part of the steam-ship to keep a proper lookont.
2. LIGHTED TORCH-REV, ST. § 4234.
No fault can be found with the bark for not displaying a torch over her stern towards the steamer seen approaching, if the display of an additional light from the bark w,Quld have been of no avail for want of a proper lookout on the steamer
A mistake in regard to time and distance, in cases of this description, does not, necessarily discredit a witness.
Hill, Wing rX Shoudy, for libellant. Shipman, Barlow rX Larocque, for claimant. BENEDICT, D. J. This action is brought to recover the sum of $22,- . 500, as damages for the sinking of the Norwegian bark Collector by the steam-ship Oder, on the night of June 7, 1879. The place of the collision was mid-ocean, to the eastward of the Grand Banks, in about 1 minute, north; longitude 38 degrees, 9 minlatitude 40 utes, west. Both the vessels were bound to New York. Thebark was sailing at the speed of four or five knots an hour, close-hauled upon the wind, with the proper lights burning brightly. The Oder, according to her answer, was steaming at a speed of between 11 and 12 knots an hour, on a course west by north, half west. A light west by north breeze was blowing, the sea was not heavy, and the night, from 12 o'clock until the collision, which occurred at 32 minutes past midnight, was overcast, and the stars obscured, and streaks of light haze alternated with clear air. On the part of the bark it is contended that the steamer was sailing witbout a proper lookout, and for that reason she did not discover the bark until the vessels were near each other, and made no proper effort to avoid the bark.