906

thilJ c0lll:h ',A;S ,he contE;sted the question:pf .fault ,and negligence" ill the dist:rict court" by: his fl,nl'lwe.r, he is,,p.ot entitled to costs in that court" but the libellants are,entitled to in that court. , ,

See 9 Ben.':;;'"

,

,

,

'VIM, etc.

;

"

fuLLOWELL

v. THE SAME.

1882.)

(Distriot Court, ,8. D. , Net» York.

L

TO How COURSE-RULllI 23-LrCHlTB. In na¥igationiI1 the night.time, and in of lea-room. the obligllrtion upon a ,,«!Sse! tp ,keep l,J,er CQU:\,S6. ullder rule 23. (Rev. St. § 4233., arises from the li"ghts the pther are seen.cir ought to be seen. 'bya time proper lookout; within the lilnits Of twO'milesj prescribed by rule 3, at' which " , , distance IfgJ1ts' should be 'visible.
f, , , ,

2.&YE.

,

B.,ln the 'Long Isl"nd in the c11annel course W. B. W., changed two ppiJ,lts tothe southward, toB. W" thet-ellY: iieii.dlng' 'nearly directly for asteam-tug;'about a mile distant, whose

, lights viSible, but were notinoticedi......the captain being diverted by a discussionwith pilot. ;W.q had just boardec;l,:\I.lll'.....and there being plenty of ,have biscourse, held, that the S. ,was within distance subjectingher to the twenty-third rule, SlId tJiat she: mrl.stbe held in fault and respo'llslbIe for: the ocHllsion which followed. ' . S.SAJolE-""'NEGLECT OiUSE 0'8' :M:E.ul'sTO:Avom; COLLISION. V. ,having previquslyshaped her cours!l to pass to the right, and h!irtng; the ,sch?oner's change of ,c9urse when about a !Dile dist.ant. and having ,still s'ea"IOOm and time to pass on either side, held, aZB(},re· sponsiblel'drtbe oollision, far not having used promptll the means: within her power to avoid it. 4. S.um__ -+-NP BACK. '." It being claimed by'the tug that the sehooner's change of course showed her green light;' that: shl'i "appeared to be croSilitlg the V. 's OOUfse to the statooard'side; (the'schooner'sredlight being possibly obscured by her jib,) held, that tl).{} not justified,:nnder this appearance of, the green Hlfiht only,in continl1in!1 her course t,o starboll,rd, but was bound to go to port, or to stop and back if necessary; ." 5. TO KEEP :OU'r' Oll" i'HE W AT. A, ateamer bound to keep ,out of theway of a sailing-vesse) , is not relieved from this duty by a previous fault of the latter, but remains bounp. to use withpr0Q,lptp.1'!1jJ! /l>pd all.,remaining means reasoilably",ithin ,her power to collision, and to make such practicable changes in 'her own ,navigation as mat bo rendered necessary by the faulty changes of. the other.:

a

.

i'

i\,

'

Collision..

, I "

907
On March 5, 1880, as the barge '6eorgeM. ·Wright, 'Ioad(!d with coal, was proceeding eastward at the entrance of Long Isla.nd sound, between Hart's island and Sand's point,at 4 in theinorning, in of the steam:trlg Vim,and lashed. ripon her port side, she was run into by the schoonerSpartel, and so injured that she was shortly after beached. These libels were'filed by the oWIiers of the barge and of the Spartel to recoveftheil" respective without fault,thecontroversy WaS be. damages. The barge tween the Vim and the Spartel as to which of them was responsible for the collision. The night, bemg overcast, \vas a good one forseeirig lights, and both vessels had all the regulation lights properly set and burning. The tide was flood, and the wind very light from the N.E., nearly directly aft of the Course'of the Spartel, il,' small twomasted schooner about 68 feet long, then' saillng with her booms on the port side. The channel, 'as 'marked upon vessels coming west past Sand's point,' isW. S.W. j ftom tMt'point the course changes two points ahd a quarter to ,the is., nit'mely,to S. W. tS., and so coritinues fourandfivei'miles. Oli the part of the Vim it was claimed that after seeing the lights upori the Spartel from one to two miles distantl;'8he shaped her cotirse1lfio go to the right,'but that shortly b8fote the :collision:the Sparlelchanged her course to the southward, when it was too late for the Vim to aVOId her; whereupon she reversed her engines, and;' ascfaimed,' wasmak. ing stern-way when the Spartel Eitruckthe barge. On the part ofilie Spartel it was insisted that no change of course on heriJ>art was made; except the usual change to keep the channel'eourse 'at Sand's point, which, as she claimed, was 80 far from the p!a!ceof collision as to be no violation of the rule ,requiring' heretO course; Each claimed that the other had not a proper lookout.' ' 'E. D. McOarthy, for libellants.' . Benedict, Taft ct Benedict, for the Vim. Goodrich, Deady' ct Platt, for the SparteI. !'' BROWN,D. J.The weight of testimony istliattheSparteI made no change in her course except the usualchange'in tpe vicinity of Sand's point from W. S. W. to S. W. t' S. This Iilust'be deemed, therefore, to have been the change observed'by those ott'board the Viril, thotigh it must have taken platle when the"vessellf' were much further apa.rf·thanthe estimate bytheVii:n's WitnesSCilS. The SaIJd's Spartal, while tipO'il her courseofW. S. point, would show her red light only to the' 'Vim, .which ;was to the' southward, upon a course which must have been very nearly N. E.

tow

908

P1DDUAL aEPOaTEB.

by tN.,the channel course. After the change of the Spartel to S. W. her green light would come into view; and as upon that course she would be headed nearly directly for the Vim, her red light ought also to :have been seen by the latter. The Vim's, witnesses, however, testify that it was shut out; and it may have been obstructed by the jib, as the sails were on the port side. The Vim had two lightloaded barges upon her starboard side. Her captain testifies that she was making about three knots against the tide; that the Spartel's red light was first seen a mile or two distant, about a couple of points off their pgrt bow, and that the green lights qf two other schooners were seen to the southward and of her; that she was then going about N.E. by E., and sha,ped her course toigo'between the Sp.artel and ,the other schooners; that when the Spartel changed so as to show her light, the Vim blew one whistle, which was repeated when it was observed that she held on her new course, and then blew three wAistles as an alarm signal, stopped and backed, so as at the' time of the ,()ollision. The pilot testifies to that they kept porting all the,.time. The preponderance of evidence is, I think, unquestionably to the effect that the Spartel's change of course was ma.de w;ithin such a distance froJ?l the Vim as subjects her to the operation of the twenty-third rule, requiring her to keep her course. There is,iperhaps, no definite limit of distance for the application of this rule in all cases. Special circumstances ,must doubtless modify any, general rule in .respect; ,but where .there no special circumatancelJ affeoting the. navigation under rple 24, it would seem that t.he limit of tWQJ;Uiles, which is the distance preat ,which lights must be ma,de visible, ought also bynecesare seen, sary implication to be .taken as the ,distance, if within which vessels should' be required to kefilP their cqurse, deviation from it be held to be, their own peril. If that.rule is not applied in regard to at is be se:en at distanoe,; o,r:, if fnot visible w.henthey are difat tha,t, distance,: iheIl,froJlli:the fere,ntrule,!which less and ,its, to ena1:>le the vessel to keep out thewaJi,j with and in practjeal and perplexity .¥; ,to. be va).'y"
tp defEllLt..

,.

of, tbe:lulesenacted :toensllJ;ecertainty
. . . ' .

,H __

X'WILLIAMSV. THE VIM.

909

In requiring the colored lights of vessels to be such as may' be visible for two miles, it is necessarily assumed that safety in navigation ordinarily requires that the position and courses of vessels should be observable at that distance from each other in order that eaQh may properly shape its course to avoid danger. The twentieth and twenty.third rules, requiring one vessel to keep her course and imposing the whole duty of keeping out of the way upon the other, are established in order to avoid conflicting changes by both. The vessel which is bound to keep out of the way must, therefore, have the right, under this responsibility which is cast upon her by the law, to shape her course as she deems best from the time and within the whole distance at which these colored lights are by law required to be visible for her guidance and governance; and this necessarily implies that the other vessel shall not, within the same limits, make any change of course which might thwart or embarrass the course of the vessel whieh is legally bound to keep out of the way. If the vessel bound to keep her course might lawfully change it at some indefinite point within these limits after the other's lights have become visible, except for special reasons under rule 24, then the other vessel, though bound to keep out of the way, could not, until that point were passed,sbape her own course ,at all, except at the risk of being thwarted in her efforts to keep clear; and thus hesitation, uncertainty, ltnd conflicting changes in navigation would be continued indefinitely within the .limits of two miles, instes.d of that fixedness and certainty of action being secured which is the evident object of the rules. The Oregon, 18 How. 572. As regards navigation in the night-time, I think, therefore, that vessels must be held subject to the twentieth and twenty-third rules from the time the opposing vessel's colored lights ar.e first seen, or would be discovered by a proper lookout, subject to the qualifications of the twenty-fourth rule. From that time the one vessel has 8 righHo shape her ,course 80 as to discharge with certainty :and safety the'dutyof keeping out:of the:way imposed on her by 181"'_ _ dthe other :vessel within the same limits is prohibited from change 'rexcept a.t'her peril; and this view seenls.to .be involved in the decision ,of J'udgeNelson in the case of The Scotia, {) Blatchf.227. ,see, alao, The GreatEasternj,2Yoore, P. C. (N.S.) 31,44. . ' ; '" The evidence leaves no doubt in this case that the Spartelwaa. far Within this limit of twomilesiWhen het change of course was:made. The 'place, of collision, as 'appears from thES great, majori.tY.Qf wit.nesses, was about,halfla mile west of Sand's point Th.emasteroUbe

91'0'

FEDEBAL BBPOBTEB.

barge,\.ho is ,a'disinterested witness, and the captaill a.nd pilot of the Vim,put it at that distance. Schofield, the pilot, who was on board tlieSpartel, says the collision "was to the west of Sand's point, about half a mile from it." The Spartel was making only from three to, four knots with the tide, and the Vim no greater speed. The Spartel's change o( course,8.S Schofield testifies, was made after he came aboard, "and a few minutes after pa.ssing Sand's point," from which it would follow that this change was less than half a mile from the point of collision ; and as the two vessels were moving at about the same speed, it must have. taken place, according to ,this testimony, when they were less than a mile apart. There was nothing in the situation which required the schooner to change her course at Sa.nd's point. There was abundance of sea-room for nearly a mile to the northwa.rd, and she could without, difficulty have continued her course of W. S. W., without: ,change, far beyond the point of collision. Had the change not been made she would have passed to the northward oithe, barge by a. considerable margin, and her change ofeonrse musHherefore be held to have been a. violation of rule 28, ands. fault which contributed to the oollision. This conclusion wot1ld have been reached even if it had appeared that the schooner's change of course had been made deliberately, and in view of the steamer It, is not affected ';by the circum: stance, as clearly appears from the testimony, that the steamer had: not been noticed,. though plainly within sight at the time. ,Thecaftain testifies that he acted as lookout, standing by the'.starboard quarter, with no one forward. Sand's point is the commencement of the pilotage ground coming into New York. The pilot, Schofield, had boarded the Spartel shortly before' reaching this .point ; but a discussion ensued between him and the captain oonoerning the terms on which he would lea,ve the Spartal and go to one· of the other schooners astern, and allow the captain to take the Spartel to New York. The, matter had not been settled at the time Of the collision. and the pilot testifies that he had not taken oharge of: the schooner. It seems clear that this debate diverted the attention of the captain. and that little or no attention a.t that time was paid to other vessels. The captain testifies that 'when he first saw the Vim he saw both her colored lights directly ahead" th,ree Or four minutes after his ehange ofoourse; so that it is clear this change was made without any reference' to the Vim. Ifherhad observed her lights before this change, bewo11ld, therefore, have seen ber rat least two points off hjs. port bow) and' at·a distance, as I find· from

M,'WlLLJUIS, 'D· .'.I)B.llI

vm.

ing greatly fromione mile. 'Had'he'seen" the Vitn'slights in, that position, it is not to be supposed t'ha.t, havingabund,anca of he would have changed his course so as to steer directly towards her. This change of course, itself. a fault nnder the eircumstano.es, is, ther(lfore directly traceable to another fatilt-the want" of a proper out. The captain, it is true, estimates the distance of the Vim.; at "probably a mile or so" when he· first saw herJights, and that it was 10 or 15 minutes before the collision. Other testimony ,of his would indicate that she was then much· nearer. He says: "I saw her coming right ahead for us;" and he says that he called tQe,pilot's attention to her and asked if he lin-a not betterlu1i a little; that the pilot said, "Keep your course ;" and that "she was then about- half, a mile away ;"'while 'the' pilot testified that when the captain thus called his attention to ·theVim.she was "but a quarter.orperhS:ps not more thaniitll'Elightliof a triileaway, andrightahead,and this was about 10 minuoosafter the;ehange of course.", rt'seemsclear, therefore, that the Spartel' must be held in fault,. both for the want of keeping a proper lookout, and .for, an improper change of course resulting from it, which contributed to the collision. The 088eo,16 Blatchf. 587. I think'it is also clear that the Vim. did not, after, the Spartel's her whole duty to keep out of the 'way of change of course, the schoonet. :The schooner's change ,of .course, thoogh a fault,. ,because made' when only about a mile distant and after 'the Vim had shaped her course to go to' the southward ofher,muliti never. theless, have been perfectly understood by the captain· of the Vim, because it was made, as the evidence shows, at the' usual place of change, following the channel course. ,This change, as several wit· nesses testify, brought the green light in view and shut out the red. 'Those in charge of the Vim must have known, therefore, that the 'Schooner had either changed to the channel course t: with her red light obscured by the jib,or ·else· changed still further to the south, 'So as properly to shut out the red light.' In this uncertainty the Vim was not justified in keepling;ripon a southerly courSe to; pass to the right. That course apparently, tended directly towards a coolisioh, and it so 'resulted.: The weight of the testimony ontha Vim's part is much weakened by the 'Very grea.t error in the distance a.scribedto the slJhooner,i. e;laneighth of a. mile only, when this change in her <lourse was made. The distance, as I have said, must :have! been nearly a mile, and the difterene6 is of the gtea.test impdrtanO'lras respects the'du-ty and ,responsibility of the Vim. il)/he,err.or "in ; this

912

I'EDEBAL BlU'OBTEB.

respect obliges me to disregard the testimony, which other circumstances make improbable, that at the time the schooner changed her course she was "about two points on the port bow" of the Vim. The necessary situation in passing Sand's point was such, at the time of her change of course, that the Spartel could not have been two points off the Vim's port bow, unless the latter were either previously far to the northward of her usual course, or else were so headed as,to run upon Sand's point, only a mile distant, both of which are altogether improbable. When the Vim was first seen from the Spartel, though it may have been only an eighth or a quarter of ,8 mile distant, all their witnesses testify "that both the Vim's colored lights were seen, and seen nearly directly ahead; The Spartel,at the time she made the change, must have prooeeded very nearly in the channel course, as the narrow channel between Sand's point and Execution :rock would not .admit of much variation in lier position, and her subsequent course was south-wElst;hence;.if both the Vim's lights were visible directly ahead when the schooner was an eighth or, a aqnarter or a half of a mile away, as all her witnesses testify,either the Vim could not have ported much before that time, or, if so,she must previously have been going to the northward of her true course, and the Spartel must, in that case,have been seen on her starboard bow, of which there is no evidence at all. Her captain testifies that his course was about N. E. by E., or a point and a quarter to the southward of the channel course. In that case, if the Spartel passed, as the pilot testifies, on the southerly side of the channel, i. e., nearer to Sand's point, both of the Vim's colored lights might have been seen ahead as described. From aU these circumstances it must be held that the Spartel, at the time of her ohange of course, when a mile distant, so as to show her green light, must have been nearly direotly ahead of the Vim, and that,oonsidering the sohooner's slow speed, abundant time and room remained to the Vim to keep out of her way by going upon either side of her. I think it clear that she would, in faot, have done so by putting her helm much less than either hard a-port or hard a-starboard. That her wheel was ported tardily, and but slightly and ineffectively, is evident from the result, as well as aooordant with the pilot's manner of testifying in relation to it. And if, aa alleged, the Spartel's red light after her change could not be seen, it was the plain duty of the Vim either to starboard her wheel at once and go to port, or to stop until the'Spartel, under her 'green light, had passed to the starboard bow of the Vim, or else toback, if necessary, as required by

-ll'WILLIAlIIS V. THE VIlli.

913

rule 21. The Vicksburg, 7 Blatchf. 216; The Northern Indiana, 3 Blatchf. 92, 108; The Governor, 1 Cliff. 93. The case as sto.ted by the captain and pilot of the Vim can scarcely exonerate them in this respect; for, if the Spartel, .being two points to port, as they' testify, changed her course when only an eighth of a mile distant:sQ as to shut in her red and show her green light, then, the danger,ofcolliBion was obviously so imminent, and the .precise course of the was so uncertain, that it would have been the duty of the Vim to :stop and back at once instead of waiting until after two or the whistle had been given, apparently to induce the schooner to resume her former course. The other testimony, however, will not admit, o.s above observed, of· tne correctness of this alleged -bearing of the Spartel two-pointsio port at the time she changed her course," I think the pilot of the Vim is in error in stating that the several whistles were :sounded before the Spartel's change of course. No reason appears for any:8uch whistles at that time;: the captain puts them after ner change; and· none were heard on the Spartel till about the distance the captain states 'of one.eighth 'Of a mile away. Nor can the pilot's testimony be credited that they hauled up on a course of N. E. by E. after passing Stepping Stones, and so kept about threequarters of an hour. On that course the Vim would haye run upon Hewlitt's point or Gangway ledge. In that location it is not possible, except by going zigzag, to deviate much from the regular course of about N. E., and there is no reason' to Buppose that the Vim followed any other course till after she _ had passed Gangway ledge half a mile before the collision. . The whole evidence taken together shows, I think, that though the Spartel wrongfully changed her course when within a mile of the ViItl, yet the latter, having still abl1ndanttime and space to keep out of the way by a further change in her own course, did not take any such prompt or decisive measures to do so as were perfectly within her power; but that she still proceeded nearly upon her former course until the Spartel was near at hand, and then sotInded whistles of alarm, and depended, apparently, in part upon the Spartiel's luffing up, instead of herself assuming the whole duty of keeping out of the way, as required by law, and changing her own course promptly when this was made necessary by the faulty change of the Sparte!. The previous fault of the Sparteldid not relieve the Vim from this duty., The safety of life and property requires each vessel, no matter what the fault of the other, to use, with promptv.12,no.10-58

914
11ess a:tJ.d::,diligence and'in rules of navigation, the means reasonably within her power to 'avoid collisions. St. J()hn v. Paine, 10 ,How. 557, 584; The Commerce, 8 Wm. Rob. .288; The C.C. Vanderbilt, Abb. ,Adm. '361,864; The,Scotia, 14 Wall. 110,181; The Qarroll,8 Wall. 802;, The American, 22 Wm. Rob. 845,848; The Oity ofAntwerp, L. R. 2 Pro C. 25, 80. In the oase Lord Westbury says,: "It cannot be too much insisted on that U is ,the duty of a steamer, where·thereis.;risk ofa collision,whatever may be the conduct of a sailing-vessEll, to do everything in her power that can be done consistently with hEll: own· safety in order to avoid collision.",,· The duty of the Vim to keep out of the way, so far as Jay within her power, still reniained, therefore, notwithstanding,the Spartel's fault in ohanging.her cOlmJe.Had the Vim acted promptly and properly in view oftbischange, she would have been blameless though accident followed. For not doing so, ,.she must bebeld responsible as: well as the,Spartel;and decrees should accordingly be entered ,for the libellant:; in the mst case, against both; ,and in the second case against the Vim for half the damages, with 'costs; and 8i referende to compute' the
,,

!?l\lNNS'iLVAll'I.\. (Dl8trict Court, B.

27,1882.)

'

")

I.

AnMIRALTY-COLLI'UON-FAtLUlUll '1'0 SHOW TORcIi:-PlUl:stnQ'nON 01' NEGLIGENCE.

The law. requiring, ,$. to torcll' upon, the approach of a, steam-ship IDlplies. that the display ofsucll torch. will. aid in preventing a collisibn,'and' the failure to exhibit such tl>rch must; therefore, be r/lgarded as. a contributClry fault; in all instances. except only where it is shown that OWing to ·facts it could have , upon the Tesult.
2,'

SAME.

The fact thatthe'sldEilignts of' the sailing-vessel Were discovered from the steam-ship as early as' thetoDch could 'have been, will not' relieve the sailihgvessel from the charge failing to exhibit the an hour in a thick fog,:through wl'lich,allproach!ng at a distance cif a JiiUe; , '

,

3. 8.um-RA'l'B OF BPEEP QFSTBAM-BBIP. , It is negligence' fOI: a steam-ship to run

ata speedof froni

"

to tenknota

riciuld nO\ be'seen

"1

n:.