THE COLUMBIA.
707
a few hundred feet distant; and that in that situation the pilotboat may properly pursue either of the last two methods; but that the latter is not prudent or justifiable at night, in a strong wind, when the steamer is evidently in motion, and when her two colored lights have not been seen, and she appears to be keeping off to windward. The last two methods are deemed preferable to the first as a general rule, because the pilot-boat is thereby better enabled to keep clear of the yawl, and to keep control of her own motion. 92 U. S. 40. Although both these latter methods have been long practiced by pilots, the master of the Alaska testified that he had never before known such an attempt at night. His testimony, and that of the officers of the Alaska, leave no doubt that the pilot-boat was expected by them to sail down upon the lee side of the Alaska, and there launch her yawl; and that it was not until the Alaska's engines were reversed at 12 :08, "about two minutes," as the log says, before the collision, that the officers of the Alaska had any idea that the pilotboat was intending to cross her bows. Their account of the disaster is, and the answer states, that immediately before the order to reverse was given, the pilot-boat, being then two points on the Alaska's port bow, was observed suddenly to close in rapidly across the steamer's course, when apparently only a short distance ahead. It is supposed that the pilot-boat then luffed into the wind, so as to reduce her speed, for the purpose of launching the yawl. Her previous speed is estimated at some seven or eight knots. The carpenter testified that he saw the pilot-boat suddenly luff when within 50 or 100 feet of the Alaska's stem, and that he then saw, as he thought, one end of the yawl resting upon the pilot-boat, and the other end in the water; which, if true, would indicate that something unusual had happened in attempting to launch the yawl. The hull of the pilotboat, after striking the steamer's stem, was not again seen. It began to sink immediately, and passed along the starboard side of the steamer. The master ran down the ladder from the bridge, and saw from·the starboard rail only the light, the mast, and the peak of the pilot.boat's sail above water; and she disappeared altogether when about amid-ships. The yawl was capsized, and passed along the steamer's port side. Several men were seen clinging to it, and were heard calling for help. Another man near it was clinging to a spar. The lines thrown out to the men from the steamer failed to reach them as they passed astern, and none were afterwards found. On the part of the steamer the contention is that her headway was substantially stopped; that the pilot-boat, upon luffing, and while waiting to repair the supposed accident that happened to the yawl, was blown against the starboard bow of the steamer by the strong wind, upset, and stove in. The libelants contend that th!? steamer was under considerable headway, and ran upon the starboard quarter of the pilot-boat while she was engaged in launching
708
FEDERAL REPORTER.
her yawl, and cut her in two, before the pilots, who had a right to suppose the steamer to be stopped, or nearly so, discovered their mistake. The case, in many of its aspects, res\:!1Ubles that of The City of Washin.aton, 92 U. S. 31, in which the respective duties of the steamer and the pilot-boat were fully and carefully discussed. In that case, as in this, the steamer was bound for New York, and the wind was strong from the north-west. The pilot-boat, however, approached from the northward instead of from the southward. The City of Washington, after first porting her helm so as to approach towards the pilot. boat, when the latter was near to the line of the steamer's course, starboarded her helm so as to turn her bows somewhat to the southward, towards the direction in which the pilot-boat was moving. In these respects the two cases are perfectly anal. ogous. An examination of the "Apostles" also shows that in that case, as in the present, the engine had been first slowed, and then reversed full speed; and it was claimed there, as here, that the quick-water of the reversed propeller had reached amid-ships before the collision. The court found the steamer in fault for not sufficiently stopping her headway, and for starboarding 80 as to put herself in the way of the pilot-boat's crossing her bows. The court also found upon the proofs that the crossing of the steamer's bows was justified by the custom of pilot-boats, and was not a fault on the part of the pilots. In the district court, (6 Ben. 138,) BENEDICT, J., said, (page 140:) "The starboarding is admitted in the answer, and, under the circumstances diselosed by the evidence, I consider it negligence. 'L'he course of the pilutboat was known to be crossing that of the steam-ship, the breeze was fresh, and it was known to the steam-ship that, at her request, the pilot-boat was endeavoring to place a pilot on board her. This maneuver the p;jot-boat was entitled to be permitted to accomplish without embarrassment from the steamer. Certainly the steanier, by starboarding and giving herself a course across the course Of the pilot-boat, while the yawl, which was to be picked up by the boat after the pilot was placed on the steamer, was in the act of passing to the steamer, attempted a maneuver which cast upon her the risk of its success. I think, also, that it was the duty of the steamship to stop still before she reached the pilot-boat; instead of which she was kept moving ahead, -slowly, it is true, but yet with a momentum which, with the starboarding, brought her upon the pilot-boat, and sank her." In the circuit court, (11 Blatch£. 487,) WOODIWFF, J., said, (page 488 :) "The steamer was in fault in not slowing, and, jf necessary, stopping, at an earlier moment, and before coming into such dang-erous proximity to the sailing vessel. Indeed, upon the proofs, it was the duty of the steamer to stop to receive the pilot attempting to board her in the night season." The supreme court confirm these positions. 92 U. S. 38-41The same faults are charged upon the Alaska in this case that were established against the City of Washington, viz.: (1) Failure to
709
stop sl1fll(;iently; and (2) veering, up to the last moment, across the pilot-boat's course. That the Alaska did turn to the northward about a point during the last three or four minutes is shown by the log and the testimony; but I am of opinion that this would have been immaterial had the speed of the Alaska for a minute before the collision been reduced to the minimum consistent with holding her position,-say to half a knot, or even a knot, an hour. The libelants' evidence shows that that reduction of speed is regarded, even by pilots, as a substantial stop, and all that is required. In this case, therefore, the fault of the Alaska turns mainly, if not wholly, upon the qnestion of her speed during the two or three minutes Lefore the collision. If she was under a headway of several knots, that speed, and her veering to the northward, were both material faults, which combined brought about the collision. Repeated consideration of all the evidence has failed to satisfy me that the Alaska, at the moment of collision, had come to a stop, or to a speed not exceeding half a knot or a knot an pour, i. c., the minimum headway sufficient to keep her in position. On the contrary, I am satisfied from some direct testimony, and from many circumstances of the case, that she was going at least four knots, and that the best-established facts of the case cannot be reconciled on any other view. . On the part of the libelants, tbe principal direct evidence of considerable headway in the Alaska, up to the moment of collision and afterwards, is derived from the testimony of several witnesses, who tf:Jstify that, within a few seconde after the collision, parts of the wreck were seen near the bridge, some 200 feet aft of the stem, pa!"sing astern at considerable speed. Mr. Worcester and Mr. Challoner, two highly intelligent and competent passengers, who saw the capsized yawl and the spar, and the men clinging to them, estimate that they went astern along the side of the ship at the rate of six or seven knots. Mr. Worcester says it was about 10 seconds, and could not have exceeded 20 seconds, from the jar of the collision to the time when he was at the port rail near the bridge, 200 feet from the stem, and saw the capsized yawl and spar about abreast of bim, and perhaps 50 feet from the steamer's side; and Mr. Challoner, who saw the same from the port quarter, confirms this estimate. On the starboard side the sinking mast, and the light, and the peak of the sail, were seen by the master and by the purser at about the same distance from the stem. 'fhe master estimates the time to have been about a minute and a half after the collision; but no such interval is accounted for by any acts of his in the mean time. It is not probable that an energetic and alert commander like Capt. Murray would wait any considerable interval before stepping a dozen paces to the rail to see what was happening to a sinking vessel along-side. The purser says the interval was not over five seconds after he felt the slight jar of the collision, when, rushing from his room, he reached the rail to see what was the
710
FEDERAL REP0RTER.
matter. The second officer, standing on the port side, 75 feet from the stem, felt the collision; and he testifies that he saw the capsized yawl abreast of him, with two men on it, "almost immediately" after. These witnesses state just what they did between the moment of col· lision and seeing. those parts of the wreck abreast of them. While the precise number of seconds is not pretended to be stated accurately, the time it took for the wreck to reach the bridge, if they tell the truth as to what they did and saw, must have been short,-apparently not over one-third of a minute at most. This would indicate six knots as the combined motion of the drift and of the Alaska's headway. Besides this direct evidence, there are several other circumstances indicating considerable speed in the Alaska, to which I shall presently refer. The evidence that the steamer was stopped, or nearly so, is derived (1) from computations showing that from the length of time that the engines were at "half speed," and "slow," and "stopped," and "reversed," as stated in the log, and from the number of revolutions at "half speed," and "slow," as stated by the engineer, there could not have remained any headway at the time of collision; (2) from the testimony of a number of the officers and men, who say that, in their judgment, the Alaska was stopped, and had sternway on at the moment of collision; (3) from their testimony that the wreck when seen abreast was going only slowly astern; (4) that the quiCk-water from the propeller was at the same time seen amid-ships, indicating a complete stop. The passing of the wreck astern is ascribed by the claimant's witnesses solely to drifting in the high wind and sea. In considering the weight of proof in support of these views, the, libel'ants are entitled at the outset to the benefit of the natural probabilities arising out of the circumstances of the case. Pilots are among the most skillful seameD in the world. These were trained and experienced men. The Columbia was schooner rigged, but 88 feet long over all, and capable of being maneuvered with great quickness and dexterity. It is improbable, in a high degree, that if the Alaska were substantially stopped, or moving at the rate of half a knot only, the Columbia, in launching the yawl ahead of her, with a full complement of skillful seamen, should either have sailed down, or been suffered to drift down, upon the Alaska's bow while the latter was at rest. This is so improbable as to be almost incredible, unless she were disabled. Mere difficulty with the yawl could not account for it, and her filling away just before she was struck shows that she was not disabled. Again, the natural bias of the Alaska's officers and men in her behalf cannot be disregarded. Constant experience illustrates the effect of this influence, however upright the intentions of the witnesses. Where the narrative of both sides is heard, its effect may be said to be neutralized; but where the lips of all on one side are closed, great caution is obviously necessary. When all on one vessel
THE COLU}1BIA·
711
.'tre lost, it is not too much to require that an account derived wholly 'from the other shall be in its essential features consistent, rational, and probable; and that, in so far as it involves serious departures from these conditions, it should not be accepted, unless sustained by proof about which there could be no mistake. The effect of this natural bias is apparent, I think, throughout the cla.imants' case. A single entry in the log illustrates the changes that the same matter undergoes in the testimony. The log says: "At 12: 08 observed the pilot.boat attempt to cross our bows. Reversed engines full speed, and in about two minutes she came into collision with our stem, sinking almost immediately." This entry was made shortly after the occurrence; even then presumably not wholly free from the tendency to excuse the ship. The expression adopted, "in about two minutes," there naturally signifies "nearly two minutes," or between one and two minutes. But on the trial all the officers, except the master, who in his first statement calls it two minutes, call the interval three minutes. Again, the time of collision is not stated, evidently because the clock waB not at that moment observed; but on the trial the third officer says he did ob· serve the clock, and that it was 12:11, i. e., making just the three minutes. But if the time had been observed to be three minutes, that would certainly have been stated in the log, as most favorable to the ship. Considering that the various other entries are made according to the time by the clock, it is" highly improbable that 12:11 should not have been entered if it had been observed. Again, the log says the collision was with the stem; the answer and the testi· mony represent it as with the starboard bow, and not with the stem, -an important difference in several relations. Again, there is no intimation in tbe log of any change.of course by the pilot·boat, nor of any sudden direction across the Alaska's bows. The pilot. boat's course was from the first necessarily directed across the Alaska's bows. It was known to be so, because she wished to intercept the steamer. She was expected, bowever, to haul down upon the steamer's lee side when she had approached near. Instead of doing as expected, she kept her course, as the log naturally imports, and tried to cross the Alaska's bows; but in the answer and the testimony we have a "change of course," a "sudden luff," a "sudden closing in" of the light. In the log nothing of this kind is intimated. As respects each of these four particulars in a single entry, the officers were fully as able to state accurately, and quite as likely to do so, when they made up the log as afterwards. I must regard the log as the best evidence, where special reasons do not appear for departing from it. 1. The Alaska's narrative as respects the occurrences of the few minutes preceding the collision, and her claim that ber headway was then either fully stopped, or reduced to the minimum of half a knot, involve so many improbabilities, difficulties, and inconsistencies, as to prevent its acceptance.
712
FEDERAL REPOnTER.
(a) Her witnesses say that at 12:08, two or three minutes before the collision, according to their reckoning, there was a suddGn luff by the pilot-boat,-a sudden "closing in" of her light across the Alaska's bow. Most of them say that this took place when the pilot-boat was only 50 or 100 feet distant. The master and some of the officers call feet. The third otticer, in one passage, calls it 500 feet. All. it however, agree that when the light suddenly closed in the pilot-boat bore about two points off the Alaska's port bow, as she had done all along. No one estimates the speed of the pilot-boat in approaching the Alaska at less than seven knots, until her supposed luff. In luffing to launch the yawl, pilot-boats do not come to a stop, but only check their speed. When bedight was seen to be suddenly "closing in," her course must necessarily have been directed across the Alaska's course, and at first her speed would be but slightly checked. Bearing less than two points off the port bow at 12: 08, (because closing in rapidly,) if not then over 500 feet distant, she would have had less than 200 feet to travel; and she would therefore have crossed the Alaska's track in much less than a minute,-if only 100 feet off, in less than 10 seconds. But the interval sworn to is three minutes,-· the log says "about two minutes." If it be said that the pilot-boat might have come to a stop when ahead of the Alaska, on account of the supposed mishap with the yawl, it is incredible-whether such an accident happened or not-that the pilot-boat should have lain still until the Alaska ran over her, or until she had drifted down upon the Alaska's stem with the latter at rest. But the evidence does not admit of any such stop; for the passage of the light across the Alaska's course must in that case have stopped also, and that fact would have been noticed. The evidence indicates that the light, without stopping, drew directly across the Alaska's bows until the moment of collision. (b) That the pilot-boat had been kept about two points off the Alaska's port bow until she closed in to less than two points at 12: 08, is one of the most certain parts of the claimants' evidence. But bearing less than two points at 12: 08, the pilot-boat, in order to reach the place of collision, had much less distance to travel than the Alaska. Whatever the pilot-boat's speed, the Alaska's must have been considerably greater. Whether the interval of time after closing in was more or less than two minutes, the pilot-boat's speed, as she did not stop, could not have been less than two 01' three knots, and if she luffed "suddenly," it must have been more. The necessary inference is that the Alaska's speed exceeded that. (c) The supposed accident to the yawl is not sustained by sufficient evidence to he accepted as a fact. It is snpported by the testimony of the carpenter, Duffy, only. Of the half a dozen other men whose business it was to watch the Columbia, and who were watching her, not one saw the ya wI. Duffy was not watching her, but as he looked out of the port bow to take the draught, he says he saw the Columbia luff about 50 or 100 feet off, show her side, and the yawl with one
713
end. in the water. He did not remain at the bow, but went away. He estimates this as from five to ten minutes before the collision, and tells what he did in the mean time. If the interval was one-quarter of his estimate, the Columbia must have been at least several hundred feet away, and he could not have distinguished in the night-time any such peculiar situation of the yawl upon a small schooner like the Columbia. It is certain that the Columbia did not luff so as first to show her side when within 50 or 100 feet of the Alaska; and if she had done so when only two points off the Alaska's port bow, she would have shot like an arrow across the Alaska's path. The close proximity of the Columbia is a necessary condition of any probability in Duffy's story; and the other particulars stated by him, as well as by others, disprove any such close proximity. His cross-examination shows the weakness of his testimony. The supposed accident to the yawl is immaterial, except as a clue to explain the delay of the boat in getting out of the way. But if the Alaska was then at a substantial stop, the explanation is inadequate; if she was not at a sllbstantial stop, the supposed accident affords no justification of Mit fault. ., Cd) The course of the pilot-boat is put by the Alaska's all the way from N. N. E. to E. N. E. The master judged that if 'she had carried colored lights she would have shown him her red light before her sudden closing in across his bow. As the Alaska was then heading W. t S., and the pilot-boat was only two points on her port bow, in order to show her red light her course must have been nearly E. N.E. But since at 11: 40, 28 minutes before, she bore nearly S. W., it is clear that, upon a course of E. N. E., from 11: 40 she would not have approached the Alaska at all. The tracing of theit positions according to the bearings sworn to, and allowing the high'est possible speed of the Columbia, proves that the general course of the pilot-boat after 11: 40 could not possibly have been more to the eastward than N. N. E. Her heading was probably about N. by E., and her course about N. by E. t E.; or, if her angle of leeway was a full point. she probably headed N. t E., with the wind-the direction of which is not certain to a point-No W. t W. The fact that she approached gradually, keeping about the same distance off the Alaska's port bow, shows that her course was probably not much changed until she luffed. Had she changed at any time three or four points to the eastward,-say at 12: 06,-so as to show her red light, she would have broadened off the Alaska's bow to much more than two points, instead of closing in as she did. '1'he more rapid sheer of the Alaska to the northward during the few minutes preceding 12: 08 shows that the pilot-boat was hauling towards her more rapidly than before, and not bearing off to the eastward. Hel hauling in resulted naturally from her nearer approach, though continuing the same course as before. The evidence shows that from 12: 02 to 12: 06 the Alaska sheered half a point to the northward j
714
ImDERAL REPOR,TER.
from 12: 06 to the collision, a point; and prior to 12: 02, only half a point,-from her previous course of W. by S. t S., as fixed some 15 minutes before. 'l'he evidence of the first officer and helmsman, who relieved the watch at 12: 02, show, I think, that the master is mistaken in Bll pposing that the Alaska had ported to W. :! S. before that time. The fact, moreover, that she sheered a point to starboard after 12: 06, though her helm was not nearly hard over, and although the wind operated strongly against a starboard sheer, is further evidence of considerable headway. (e) The general course that the pilot-boat must have taken from 11 : 40 to the collision can be determined very nearly from the known course of the steamer, and the distance traveled by her, and from the bearing and speed of the pilot-boat. The average course of the steamer, during the whole interval, was about W. by S. The distance run by her, even upon the figures given by her own witnesses, could not be less than four and one-half miles, as she ran at least two and three-fourths miles during the first 12 minutes. The speed of the pilot-boat was stated to be from seven to eight knots. During the whole interval of 80 minutes the pilot-boat would therefore run from three .and three-fourths to four miles. If the pilot-boat bore S. W. or S. W.I W. at 11: 40, her utmost speed of eight knots would not have been sufficient to enable her to reach the Alaska, had her general course been more than one and one-half points E. of N. (1) The master estimated the pilot-boat to be two miles distant when he slowed at 11: 57, 11 or 12 minutes before the collision, and "nearly a mile" distant at 12: 06, when he stopped the engines. But at 12: 06 the distance must have been much less,-probably less than half a mile. As the pilot-boat during this interval of nine minutes must have been going within two or three points of a right angle to the course of the Alaska, the latter must have diminished the distance that separated them during those nine minutes by nearly a mile, or at an average speed of over six. knots. So, if four minutes before the collision they were nearly a mile apart. even if they had been approaching all the time head on, if the pilot·boat could not make but the rate of eight knots during that time, the Alaska must have made nearly seven. But during the last two minutes, according to the Alaska's own account, the pilot.boat had luffed up BO as to draw rapidly across the Alaska's bow. If, therefore, at 12: 06, the vessels had been only one-half mile apart, instead of nearly a mile, they could not have reached each other, upon the course the pilot-boat sailed, had not the Alaska made an average speed of at least four knots in tha t interval. (g) Again, if the Alaska's speed when her engine stopped at 12: 06 was only three and one-half knots, and her headway was stopped at the collision five minutes afterwards, as the Alaska's witnesses contend, she would have gone during this interval about 1,050 feet only, and the movements of the pilot-boat during these five minutes could
715
not oe rationally accoonted for. At 12: as the pilot-hoat bore a little less than two points off the Alaska's port bow; and had she been coming up on her general coorse, N. by E. E., and the Alaska in the mean time moved as slowly as claimed, the pilot-boat would have borne, at 12: 06, two minutes before, nearly four points off the Alaska's port bow, instead of two, uS the Jog states. Had the pilot-boat, however, during these two minutes, come upon a course of N. E. by E. so as to preserve bel' bearing of two points off the Alaska's port bow, thRn, having the wind aft., her speed would have been increased, and on luffing suddenly just before 12: 08, within 500 or 600 feet of the Alaska, she would have come ronnd so rapidly as to cross the line of the Alaska's path, not 250 feet distant, in less' than half a minute, instead of three minutes. Luffing suddenly from such a course, her speed would not be much checked, and she woulcl continue at rapid speed till she headed north; nor could she have been kept for three minutes from crossing the Alaska's path without being brought to a stop for a considerable interval. Not only does the testimony, as I have said, show that there was no such stop, but such a mode of navigation for a pilot-boat designing to launch her yawl ahead of the steamer would be in the highest degree improbable. She would naturally check her course gradually as she approached the steamer's head by a gradual, not a sudden, luff. All the difficulties above referred to proceed really from two assumptions on the Alaska's part: First, too little speed; second, too much time after the engines were reversed. Correct these, and all the difficulties vanish. 2. As regards the time, I have already observed that the entry in the log, "about two minutes," was evidently an estimate only. The evidence shows that when the engines were reversed collision was apprehended. Experience proves that persons expecting disaster, and not busily employed, overestimate the time. It is natural, therefore, that this interval, then estimated at "about two minutes," should have been much overestimated. It is probable that the time was not over one minute. The fact that the pilot-boat did not stop, and was less than two points off the port bow at 12: 08, and yet did not clear the steamer, makes it difficult to believe the interval was over a minute. If it was not, the order to reverse would have had little . effect. Other circumstances confirm this view. At 12: 08, when the officers first perceived that the pilot-boat meant to cross the Alaska's bow, the commander exclaimed: "My God! what is that man trying to do?" The first officer exclaimed: "By Jove! that man will be into us; I never saw such a thinK in my life!" These exclamations show apprehension of immediate collision; but as the pilot-boat was then less than two points off the Alaska's port bow, and seemed to those' officers to be from 250 to 500 feet distant, and had to run only half the distance to reach the point of intersection that the Alaska had to run, it is difficult to see wily they
t