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.
THE STEAM·SHIP1 0DEB.
On the part of the steamer it contended tha.t' .the bal.'hH!l:a.d:'no light which could by any possibility have been discovered by thosEi on board of the steamer sooner than it was discovered; that the: barh was discovered at the earliest possible moment, and everything then possible to be done by those on the Oder to avoid the collision we.," promptly done:
"That no sound or signal was given by those on board the' bark, but she was suffered to glide on in silence and darkness, a comparatively smJtlo' and dark object, wholly invisible to a vessel approaching her from as said steamship was approaching."
Upon these pleadings it may be taken as true that the steamel was sailing at the speed of from 11 to 12 knots an hour; that hel course was west by north, half west, and that the wind was west by north. With such a wind the bark, bound as she was to New York, was, of course, sailing on the wind, and so stands the proof. The course of the bark, therefore, as shown by the direction of the wind, stated in the answer, was from north to north by west. It is proved by several witnesses to have been north, half west. The courses of the respective vessels are thus fixed beyond dispute, and they are the controlling facts decisive of the case; for if the speed of the steamer was from 11 to 12 knots, and that of the bark was from four to five knots, and if the steamer was sailing W. by N. t W., and the bark N. t W., the green light of the bark, which, according to the undisputed testimony, was so arranged as to show two points abaft the beam, must have been visible to the steamer a considerable' period of time before it was discovered by those in charge of the steamer, and in abundant time to enable the steamer to avoid the bark. There is no question here in regard to the existence of a green light properly displayed from the starboard side of the bark and burning, for the light was seen by many persons on the deck of the steamer before,the collision. Nor is there any question that the night was bright enough to render the bark's light visible in time to avoid collision, for the evidence from the steamer is that the night was such as to make the steamer's side lights visible three miles, and those of the bark two miles away. The only question is whether the steamer was, as the answer asserts, approaching the bark from aft in a course that rendered it impossible for her to see the green light of the bark sooner than she did. That she was not 80 sailing appears by the course of the steamer as she herself gives it, and the direction of the wind as she herself states it, taken in oonnection with the speed of the respective vessels and the undoubted
fact th'at'the bark was bound to the'westward, close upon the wind. These facts oonclusively show that the green light of the bark was visible to the steamer as she was, approaching, and the inference is irresistible, therefore, that the cause of the collision was the failure to keep a proper lookout on board the steamer. This conclusion, compelled as it is by the conceded facts already mentioned, is greatly confirmed by the evidence given by the officers and crew of the, steamer as to what occurred on board their vessel. Two men, as it appears,were stationed forward on the steamer to look out. They stood at the stem, the stay being between them. OnewRs charged with the duty of looking out on the starboard side; the other took care of the port, side. 'The bark was on the steamer's port side. The man whose duty' it was to look out in that direction, aoAar fl,B appears, never reported or saw tl)e light. He is not elttledas a witness, nor any satisfactory excuse given for his absen(le. The other lookout left his post forward at 30 minutes past 12, and as far as the bridg.e to report to the officer on the bridge that the lights of the steamer were burning.,brightly. The collision, ,aCCording to the answerj occurred at 82 minutes past 12. Daring ,some: parto! the two minutes immediately preceding the collision, therefore, the steamer :was Bailing substltntiaHy without a lookout. .The, starboard lookout says that he had, returned to his post before .thebark's light was 'sefitl, but he confesses that he did not see the ligli:t until after the whistle was blown, and the whistle was not blown until after the light was seell by the' second officer on the bridge, and the\steamer's wheel had been ordered hard a-port. Thistestimony 'sufficitmtly, I 'think, accountB ior :the fact that the bark approached .genear the steamer without being seen by the lookouts. ,There is also testimony which:Qlay be considered a/3 accounting for the failure of the a condofficeron the bridge to gee the bark sooner ,than he did, for it appears ,that the captain had left orders to be .called ifthe weather changed. ,After half-past 12, the second officer c6ncluded that it was proper to inform the master, and he called tho fourth officer to the bridge. ,The fourth officer ,came upon the bridge, :and was directedlby the second officer .to inform the mas,ter that the weather had changed. The fourth officer replied, "It is nice and 'clear ;y0U can see the horizcm still." The secoD(l officer looked and saw the ,horizon too, and' at the Bame llJ,()!Jl.ent,as he says, "I saw the flash :0£ the light." The occupation of the' officer in charge of the deck in scanning the heavens, and discu8sing::Nith the fourth
officer the condition ,of weather, may; well have be;en .the reason why his eyes did not sooner catch the bark's ligbt. To the argument based upon the .courses and' of the rQ-. spective vessels, as the same' are admitted or proved beyond adoubt" it is answered, in behalf of the steamer, that, this theory is inconsistent with the testimony of those on board the ,bark ill regard,tp, seeing the steamer's green light as she approache,d.: Manifestly" however, the green light of the steamer was:,vigible to those on board the bark at some time before the\oollision. A mistake in the state,'":' ments of the witnesses for the bark in respect to seeing the light of the steamer is, therefore, a mistake of time and distanlle ; and a mistake in regard to time and distance, in cases of .. soription, does not necessarily discredit a witness.." Besides; there is in this case testimony drawn from witnesses prpducedby the steamer tending to show that the ranges of the side lights of, the steamer orossed each -other inside the steamer's in whioh ,case, it would be possible for those 'on the bark to see the steaimer'a green light when approaching at a considerable distanoe 00 the oQ:l:t.rse ,givi'lnby the answer. ; Stress has been laid hythe, advocate for., the steamer upon lao.guage used by the ,crew of the bark in speaking of the steamer,'as indicating that the steamer was approaching from aft; and when she could not see the side lights of the bark. But the expressions "angling forward," "up on our side," "almost along-side,!' "right side, " "standing.forwa.rd, I' · and the like, do .not appear, to me to be inconsistent with the description of. theoQurs6s of the vessels a.afixed by the answer, the conceded direction afthe wind and the weathel'. and speed of the two vessels. Besides, it must be retnembered that the expressions referred to are those us,edby the interpreter to give his idea of what the NOl'wegianphrases, used by the witnesses, were intended to mean, andollinnot be too implicitly relied ,on., .,.,SOj too, importance is attaohed by theclaimantedo theline'drawn,?Y th.e seamen of the bark to represent the course· of by them. That line may very well represent direction oi the blow given by the steamer after the wheel .of the stelllller had been put hard a-port, and that of the bark hard a.-starboard; .but it oannot truly represent the relative, bearing of ,the cour8e8, c;fthe re:-. spective vessels as theywereapproachingeach'other, course mal:kedfor the steamer being, as the answer,(states, we,st bYiuQrthi half west, would make the course of the bark about northwest,-an impossible course with the wind as given by the steamer.
In regard to the averment of the libel that shortly after the masthead light of the steamer was seen, all three of the lights were presented to view, and she was coming for the stern part of the starboard quarter of the bark, I do not see that it is necessarily inconsistent with the fact that prior to the time when the bark was seeh by the steamer the steamer was approaching within tha range of the bark's green light. But if this allegation of the libel be irreconcilable with the statement in the the steamer surely has no cause to com· plain.if the case be determined upon a theory in harmony with the statements of the answer rather than those of the libel. : The conclusion I have atrived at, that the bark's green lightwalil to th6se on the stMnier at a sufficient distance to enable the steamer to avoid the-, bark, and tha.t the want of a proper and constant lookout on board the steamer was the cause of her omission to see the batk'R light as soon as it became visible, and her consequent failure to avoid the bark, renders it unnecessary to determine whether there was a futther fa.ult' on the part oltha steamer ·in putting her helm hard It.-port at the instant of seeing the light, upon theasliumption that the light was that of a steamer passing them to port, instead of fitst determining the character of the light. 'The views already expressed, of course, dispose of the point taken l.l.gainst the bark that she was in fault for not displaying a light over her litem towards the steamer seen to be approaching. If, as I have found, the want of a proper and constant lookout on the steamer was the o..lly reason why the bark's green light was not seen in time to avoid 1I",r, the display of an additional light from the bark would have been 0" no avail; and, moreover, as I have found, the respective courses of the vessels were such as to render the bark's green light visible to the steamer; and if, as the witnesses for the steamer said, the night was such as to enable light to be seen at a distltnce of two miles, there was nothing to lead those on board the bark to suppose the light they were displaying to the steamer would not be seen by tboseon board the steamer, and they were justified, tberefore, in assuming that the oollision would be avoided by timely action 0l1; the part of the steamer. I find no fault, therefore, on the part of the bark, and I am of the opinion that the steamer is wholly responsible for the sinking of the bark. The libellant must, therefore, have a decree for the amount of his damages, with an order of reference to asoertain the amount.
KNICKERBOCKEIc LIFE INS. CO. OF NEW YORK.
OF NEW YORE.
(Circuit Oourt. D. New Jersey.
A court of equity will grant relief against a judgment at law on the of fraud, whether the fraud was in the transaction. or the instrument OD which the actiOn arose, or in the trial and the mauller of obtaining the judgment.
IN EQ,uITy-BILLSFOR A NEW TRIAL.
It is the practice in equity, when the prayer of the bill is for an injunctioll
an.d for general relief, after a judgment at law, unless the case discfoses some .defence peculiar'to'courts of equity. and which would be unavalling at law. to set aside the judgment, and leave, the parties to a n.ew. trial in the original forum. In effect, such a bill is an application for a new trial.
Coult tt Howell, for defendant. A. Q. Keasbey tt Sons. for complainant.
NxxoN,.D. J. The bill is filed in this case by the complainant to set aside a jndgment recovered in this court at the term of September; 1877, on the ground .that it was obtained by fraud. The defendant has put in a general demurrer. which admits all the material averments of the bill of complaint. The only question, therefore, is, are these sufficient to maintain the suit? The bill alleges that on the twenty-seventh of September, 1877. the defendant recovered a judgment against the complainant for the sum of $12,201.01, in an action of assumpsit. which was founded upon two policies of insurance on the life of her late husband, Christopher Trefz, one for $2,500 and the other for $8,500, both issued September 6, 1873, in favor and for the benefit of his wife, the defendant; that the policies on which the judgment was obtained had been received in exchange for two prior policies-one for $3,000, issued May 25, 1867, and.the other for $10,000, issued March 18. 1868; that upon issuing the two later policies it was agreed. in writing, between the defendant and her husband and the complainant. that the statements in the application for the former policies were true, and were the basis for the contracts of the policies; aud that it was expressly provided that the new policies were granted on the faith of said statements. and that if any of them were untrue, the said policies should be void; and that they should be void if·the death of the insured should be caused by the habitual use of intoxicating drinks; and that among the statements that thus formed' the basis of. the new contracts. and on the faith 'of which they were made, were assertions v.8,no',.1·-12