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THE IBERIA.

(District Court, E. D. New York.

June 24, 1902.)

1. Collision—Steamer and Sailing Vessel Meeting — Obstruction of Lio hts.

A collision at sea, in the night, between a steamer and sailing vessel, meeting, held to have been due to the fault of the latter in failing to keep her side lights unobstructed, as required by statute; the evidence showing that to the extent at least of one point on either side of directly ahead such lights were obscured by the foresail, which fact prevented the steamer from making out her character or course, and brought about the collision without the steamer’s fault.

2. Same—Lookout.

The fact that the lookout on a steamer was stationed on the bridge, which was a favorable position, does not render her in fault for a collision with a sailing vessel in the night, where the only light on the sailing vessel which could be seen from the steamer was seen, and given due attention.

In Admiralty. Suit for collision.

Carter & Ledyard and Mr. Taylor, for libelant.

Butler, Notman, Joline & Mynderse, for claimant.

THOMAS, District Judge.

The Carib was a partly laden brigantine, whose length was 108 feet and beam 25 feet. Her forecastle deck was 10 or 15 feet, and her poop deck 30 feet, in length. The Iberia was a fruit steamer, 150 feet in length, and 28 feet wide. Her bridge was on the top of the charthouse, was of the steamer’s width, from 60 to 70 feet from the stem, and some 8 feet above the deck. The wheel was on the bridge, and there was no house forward. On October 24, 1900, the Carib, after skirting along the northern coast of Spanish Honduras, was at 6 o’clock sailing with square yards and wind aft, with all sails except the royal, with Caballos Light bearing five points- on her port bow, and apparently 10 or 15 miles away at 6:4o p. m. Her course was nearly true west. The wind was between east and northeast. Before 8 o’clock her boom was put over from, port to starboard, and her course changed to south by west. A few minutes before 8 o’clock the yards were braced two points, as claimed by her, with the wind on her port quarter free. Between 8 and 8:2o o’clock her staysails were taken in, and shortly her course was changed to south by east. The yards were braced sharp, leaving her about one point free, if the wind be regarded as east. She was bound for the harbor of Puerto Cortez, an open bay facing to the westward, sheltered on the north by Point Caballos, which separates it from the Gulf of Honduras. The Iberia had left Puerto Cortez harbor at 6:45 p. m., bound for Belize, in charge of a Honduras pilot, to conduct her coastwise to Belize. She pursued westerly and northerly courses until at 6:55 p. m. When Point Caballos light bore east half south, distant about three-quarters of a mile, she took her proper course due north, which should not have been changed, at least for some time after the collision. About 10 minutes later, as she claims, a white light was seen bearing dead ahead, or perhaps half a point on her port bow. Her pilot assumed that this was *719carried by one of the small coasting sloops, and from its dimness indicated at the instant a distance of two miles or more away. The pilot gave an order to port, and this order was at once executed. Thereupon the pilot looked at the light through his glass, and saw that the vessel was an approaching square-rigged sailing vessel, close at hand. He called out, “It is a big'sailer,” or words to that effect, and ordered the wheel hard a port. The loom of the Carib’s sails became quickly visible, and it was seen that she was luffing, whereupon the order was given to stop the Iberia’s engines, reverse, and go astern at full speed. This was done, but, before the way of the steamer could be stopped, her stem struck the Carib on the starboard side just abaft the main rigging, the angle of collision being a right angle. Thereupon the Carib listed first to starboard, filled, listed to port, fell over on her broadside, in which position she was seen the next morning still afloat.

On the part of the Carib it is claimed that from three to five minutes after the yards had been braced, as above stated, Montgomery, the son of the captain, a boy 15 years of age, who was acting as mate, was on the lookout from the poop deck, and that he made out the green light and masthead light of the Iberia from two to three points on the starboard bow of the Carib; that he reported, “Steamer’s light on starboard bow.” The master and four of his crew testified with reference to the relation of the Carib to the Iberia at the time of this report. Lee, a seaman at the wheel, gave this evidence:

“Q. When the master’s son first reported the steamer, you could only see the white light? A. Yes, sir; only the masthead light. Q. Why was that? Was it too far away to show her green light? A. I think so. Q. Which way did you see her,—on which side? A. On the starboard bow. Q. How, nmch on your bow? A. I could not tell you. Q. Did you watch the white light until the green light came into sight? A. No, I looked up, and saw the green, too, after a while. Q. And where were they,—on the starboard bow? A. Yes, sir. Q. How much on the starboard bow? A. I don’t know. I never took so much notice. Q. Can’t you tell me at all how many points they were on the bow? A. About two or three points, I think. Q. That is, ihe white light, when you first saw it? A. When I saw both lights. Q, How far do you think the white light was on the bow? A. About the same as the others; Q. How far away were the lights when you saw both the white and green lights,—how far do you think? A. About three or four miles, I think. Q. How long did you watch them? A. Only a‘ moment. I had to look at the compass, and look after my steering. Q. When did you next see them? A. When she was close alongside. Q. After they cried out, ‘Steamer ahoy’? A. Just when they cried out I saw her. Q. You had not seen her between that time— A. I never looked at her; no, sir. Q. Had you heard anything about her before that time? A. No, sir.”

Mann, another seaman, who was forward, testified:

“Q. After you had finished bracing the yards, what did you do? A. Well, I just cruised around the deck, that was all; and while I was there I heard them sing out, ‘Steamboat ahoy! steamboat ahoy!’ and when I rushed up on the poop I saw this big steamboat right clean up on top of us. Q. Before you heard them shouting this ‘Steamboat ahoy!’ had you heard any one report on the brigantine that any steamer’s lights were in sight? A. Yes, sir; the mate reported to the captain. Q. Did you look up and see the lights? A. No, sir; I did not take any notice of it. I simply heard the report that there was lights on the starboard bow. Q. You didn’t look up? A. No, sir; didn’t pay no attention. Q. Was this report that there was a steamer's *720lights on the starboard bow before or after you had braced up the yards? A. After we braced the yards, sir. Q. When, you heard them shout, ‘Steamboat ahoy!’ you rushed up on the poop? A. Yes, sir. Q. And you say the vessel was then very close to you? A. Yes, sir,”

Edwards, who was with the last witness, stated:

“Q. Did you see the lights of the steamer? A. I did not. Q. Where were you? A. Forward on the forecastle head. Q. What were you doing there? A. Just clearing up the ropes ready to shorten sail. Q. When did you first see the steamer? A. When she was right on top of us. Q. Had there been •anything to attract your attention to her? A. The mate was singing out, ‘Steamer ahoy!’ and then I looked. Q. And did you see any lights on the steamer? A. I saw the starboard and masthead lights, sir. Q. How close was she then? ' A. Within only about two minutes of striking us. Q. Do you know how far she was? A. No, sir. Q. Was she a length of your boat away? A. No, sir; less than that. Q. Did you hear any order given by the master to the man at the wheel? A. All 1 heard was, ‘Put your helm hard ■down.’ I heard that.”

Montgomery, Jr., testified:

“Q. After the staysails were taken in, and before the collision, was any change made in the yards? Were they pulled one way or the other? A. After the staysails were taken in, the yards were braced up sharp. Q. After that was done, where were you standing? A. I was standing on the starboard side of the poop, forward. Q. You mean the forward end of the poop? A. Yes, sir. Q. And what were you doing there? A. Keeping watch. ■Q. Who was keeping the lookout? A. I. Q. You were keeping watch and lookout, too? A. It’s the same thing. Q. íyhén did you see the lights of .any steamer that evening? A. Well, I don’t know the exact time. Q. I don’t mean the exact time by the clock, but with reference to the other ■events. A. Just a few minutes after the wheel was relieved. Q. Before or after you had braced the yards? A. Just after. Q. You saw the light of a ■steamer? A. Yes, sir. Q. What lights did you see? A. I saw the masthead light and the green light. Q. Which did you see first? A. They both ■loomed up together. Q. How did they bear with reference to the Carib? A. I should think about two points on the starboard bow. Q. What did you understand, from seeing a steamer’s lights in that position, with reference to the course of the steamer? * * * I don’t mean as to speed, but I mean as to course. A. I should think she was going perhaps in just the ■opposite direction that we were going. Q. About how fast was the Carib going at this time? Had there been any change in her speed? A. I should think she was going just about the same speed,—about seven knots. Q. When you saw the steamer’s lights, what did you do? A. I reported them to my father. Q. What did you say? A. I told him there was a steamer’s lights on the starboard bow. Q. What words did you use, as near as you can remember? A. Well, as near as I can remember, I believe I said, ‘Steamer’s lights on the starboard bow.’ Q. What did he say? A. I don’t exactly know, but it was something about knowing it. He had seen them. ■Q. About how far distant from the Carib did the steamer that was carrying these lights seem to be at the time when you first saw her, as near as you can get at it? A. Well, perhaps three miles. Q. Now, did any change take place, with reference to the position of the masthead light, while you were on watch? A. Well, I think it gradually grew higher up, very slowly. I could notice it grow higher up. Q. What did that mean? A. That she was getting closer. Q. About how much time elapsed, do you think, from •the time you first saw the steamer’s lights until the collision? A. As near •as I can remember, I should think it was about fifteen minutes. Q. Do you think it was more than that or less? A. As near as I can remember, I should think it was about fifteen minutes.”

The master testified:

‘‘Q. What was your son doing at this time? A. On the lookout. Q. Where was he standing when he made that report? A. On the starboard side of *721the poop deck, forward. Q. Where were you? A. By the wheel. Q. What •did he say? A. ‘Steamer’s light on the starboard bow,’ is what I understood. Q. Did you see her yourself? A. Tes, I looked leeward, and saw the white light. Q. Did you "see anything at that time except the white light? A. No, sir, nor afterwards. Q. Between the time when you first saw the steamer and the time of the collision, were you standing still or walking about the deck? A. I was moving almost continually. Q. In what direction? A. Across the deck from one side to the other, but mostly on the weather side making this point. I wanted to keep close to it, because I expected the wind to come off the land and head me off. Q. What was the next thing you knew about the steamer? A. Well, for several times I looked and saw this light, and came to the conclusion it must be a vessel bound to the westward,—bound from Puerto Cortez for Bivingston and Port Barrios. They most all go in that direction from Puerto Cortez. Q. Did you liave any further report about the steamer and her lights from your lookout? A. No, sir. Q. What was the next thing that your lookout reported to you? A. After some time, I heard them hailing, ‘Steamer ahoy!’ Q. Where were you then? A. On the weather side. I then went to the leeward, and began to hail, myself. Q. And when you got to the leeward, what did you see? A. I saw the steamer coming up stem onto us on the starboard side. Q. Did you see her masthead light then? A. No, sir, I was looking at her hull; and when I saw she must strike us I told the man to put the helm hard down. Q. How far away was she when you first saw her at that time? A. Not over 120 feet when we began to hail her.” And also: “Q. You say the light of the Iberia was reported to you by your son? A. Yes, sir. Q. And that you looked, and saw the white light only? A. Yes, sir; that’s right. Q. How did that bear from you,—over which bow? A. The starboard bow, about three points. Q. And distant? A. Probably three miles. -Q. And how long do you say it was from the time you first saw the light •of the steamer until the collision? A. Probably ten minutes. Q. Or more? A. It might be more. I am only guessing at the time.”

From this evidence it appears that a lad' of 15 alone saw a green light on the starboard side of the Carib when he reported the vessel. Lee, at the wheel at that time, saw the white light, and at some indefinite time afterwards saw a green light. Mann did not look for' anything, and saw nothing; while Edwards states that he saw the starboard and masthead lights when the Iberia was less than a length away. The master saw the green light at no time, although he saw the masthead light at least four times. Hence the Carib’s contribution of information on the subject is meager and unsatisfactory, and prompts a suspicion that these men saw the lights of the steamer Foxhall, that was on the port hand of the Iberia. However, that may be, it is from these witnesses principally that it is necessary to infer, if at all, that the Iberia was two or three points on the Carib’s starboard bow. But the determination of this question is all-important, and its solution must precede other discussion. On the Iberia’s bridge were several persons,—the pilot for the coast, in charge of the vessel, the master of the vessel, the mate, the wheels-man, and some representative of the cargo. The courses of the vessels were apart substantially one point. The pilot testified that he saw a dim white light right ahead, possibly a quarter of a point on the port bow. The mate stated that the dim light was right ahead, and that when the Iberia began to hard a-port it appeared a little on the port bow; and the master places the dim white light right ahead. If the Iberia was two points on the Carib’s starboard bow, those on the Iberia should have seen her green light, which at most was not *722obscured for more than one and a half points. But the evidence is that no one on the Iberia saw the Carib’s green light until she luffed. It does not follow that a light was not visible because it was not seen, but the fact that no one of the several persons on the bridge saw the green light is useful evidence upon the issue whether it was visible, and the value of this evidence is enhanced by the fact that three persons did see the white light in the Carib’s cabin, were attentive thereto, called attention to it so that others on the bridge saw it, and a maneuver was made to avoid it, and yet not one person on the bridge saw the green light. Moreover, if the Iberia was two or three points on the Carib’s starboard bow, the former went in the wrong direction to avoid the white light. For what possible reason could a vessel heading and bound north, meeting a vessel bound south by east, and bearing from the latter vessel two or three points to the starboard, go to starboard, not only out of her own course, but directly across the path of the other vessel ? Such aberrations happen, and vessels are condemned accordingly. But when considering whether a vessel was two or three points on another vessel’s starboard bow, the improbability of such error is helpful in determining the fact. Here are three reasons for believing that the Iberia did not bear as much as one and a half points from the Carib: (i) The master, mate, and pilot saw her ahead. (2) No one of them, although looking at the white light, and maneuvering with reference to it, nor any one on the bridge, also made attentive, if not alert, by the announcement of the white light, saw the green light, as they would have done if the Carib’s contention were true. (3) If the Carib’s contention were true, there would have been no motive for the maneuver actually made, and, moreover, such maneuver would not only have been to the Iberia’s disadvantage, but to the obvious peril of all concerned. Therefore it must be concluded that the witnesses for the Carib were in error as to the bearing of the Iberia from the former vessel.

With this conclusion in view, why did not those on the Iberia see the green light of the Carib? The side lights were set in the main .rigging. Without entering into details of the measurements of the foresail, and its relation to the other parts of the vessel and to the lights, it must be found from the evidence relating .thereto that it obscured to some extent both the starboard and port lights, and, as the vessels were related, prevented the Iberia from seeing the Carib’s lights. The statute (Rev. St. U. S. 1873, § 4233) requires that the light shall be “so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam, * * * and of such a character as to be visible at a distance of at least two miles.” The Iberia gathers data from which it infers that the light was obstructed so that there was a dark field three points wide carried in front of the Carib, and that her starboard light was within this field to the extent of at least a point and a half. The advocate for the Carib, somewhat changing the basis upon which his conclusion rests, with equal skill shows that the field covering the starboard light might have been at most one point or less; but the *723combined discussion justifies the conclusion that the light was obscured at least to the extent of one point. This fact shows a violation of the statute. The fact of obscuration of the light harmonizes with the evidence of those on the Iberia that they did not see the light, and with the conclusion that the relation of the Iberia to the Carib was such that the light could not be seen. Hence the cause of the accident is understood, and the action of the Iberia is reasonable. With the obscuration thus found, the evidence is harmonized, save the Carib’s evidence that the Iberia was further to the starboard. This evidence must yield to the conclusions already found. The primary fault of the collision, therefore, rests with the libelant.

It is urged that the Iberia’s lookout was deficient. The bridge was a favorable place for a lookout, and certainly this duty received sufficient attention. The only light upon the Carib that could be seen was seen. It does not appear that a lookout on the deck would have been more likely to see the obscured light. If the light was not visible, a lookout would have been a useless protection.

There must be a decree dismissing the libel.

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