THE OREGON.
751
1871 and 1872, laudatory advertisements in regard to the perfection of their celluloid dental plates, and that some dentists thought them satisfactory. Their advertisements and opinions do not make much impression upon my mind, because I am somewhat familiar with the opposition of dentists to the dental vulcanite patent. I am satisfied that this defense, always one which must be clearly proved, cannot be made out, because I do not think that the inventors, before they started their Newark factory in the spring of 1873, were themselves sure how to obtain a result which should be both certain and satisfactory, and I do not think that they attained, prior to 1873, any uniformity of result, either or poor, except in the minds of persons who were very anxious that celluloid should be a success. The affidavits upon both sides, taken as a whole, tend to confirm my previous opinion that this defense cannot be sustained. The petition for rehearing upon the ground of newly-discovered evidence is denied.
THE OREGON.· HOLT
and another v. THE OREGON.
(District Oourt, E. D. Wisconsin. May 8, 1886.) 1, COLLISION-ScHOONER UNDER SAIL AND SCHOONER IN Tow-ERROR IN LOCATING VESSELS BY SOUND-CHANGE OF COURSE IN FOG.
During a dense fog a collision occurred between the schooner M. and two other schooners in tow of the steamer O. The fog signals of both the steamer O. and the schooner M. were sounded as required by statute, but the M.'B horn was not heard by the O. The O.'B whistle was heard by the M., and endeavors were made to determine her bearing by locating the'sound. The O. was first seen by the M. when about 50 feet distant. From the presumed direction of the sound, it was supposed by the M. that the O.'s course was astern of the M., and, as the latter vessel was sailing at a moderate speed, close· hauled, on the starboard tack, no change of course was made until the O. was actually seen. Held, that as the steamer's lights could not be seen, sound formed the only guide furnished the M., and that an error in locating sound, under the circumstances, was not a fault; and that as the M. was sailing at a moderate speed, close· hauled , on the starboard tack, the circumstances were such that the master of the M. was justified in concluding that a change of course might increase the hazard. . 2. SAME-LIGHTED TORCH-FAILURE 'TO EXHIBIT, WilEN JusTIFmD. The schooner failed to show a lighted torch. It was not proven, to the satisfaction of the court, that the torch, if shown. might not, possibly, have been seen. Held, that though it be possible that the torch, if shown, might not have been seen far enough off to have done any good, such a possibility fur' nished no excuse for its absence. Nothing short of an absolute certainty that it could do no good, to be established by proof on the trial, can justify an omis· sion to obey the rule.
8.
SAME-FAILURE TO KEEP OUT OF THE WAY, PRIMA FACIE PROOF OB' FAULT ON PART OF STEAMER-8PEEP IN FOG.
The steamer's spJed was diminished upon the coming up of the fog. Ac· cording to the testimony of her crew,she was, at the time of collision, steam· by 'theodore, M. Etti,ng,· Esq., of the Philadelphia bar.
1
752
FEDERAL REPORTER.
ing at from three to four knots per hour. According to the testimony of the M.'s witnesses she was steaming at from seven to nine knots per hour. Held, that the occurrence of the collision, under the circumstances. was sufficient to establish aprimaj'acie case of negligence on the part of the steamer; and that the density of the fog, the locality. and the position of the tow. required an occasional stoppage, in order to listen for sounds from vessels that might possibly be approaching. Both vessels held to be in fault, and damages divided.
In Admiralty. Ma,rkham ct Noyes, for libelants. Harvey D. Goulder, for claimants. DYER, J. On the nineteenth day of June, 1885, the schooner Richard Mott set sail from Oconto, laden with a cargo of lumber, bound for Milwaukee. Towards midnight the skies became overcast, and there came up a dense fog, accomparJied by rain. The wind was from the south, and was a good sailing breeze. The vcssel was sailing by the wind, on the starboard tack, steering S. E. by E., and was carrying full sail. The fog-horn was constantly sounded, and the lights were in their places, and burning brightly. It was mate's watch, consisting of mate, wheelsman, and lookont. At 11: 30 o'clock the master came on deck because the weather was thick and threatening. In obedience to his orders, the watch below were called to shorten sail. The whistle of a steamer was heard, apparently at considerable distance, bearing southwest, and then a little more westward, from the Mott. Sail was taken in, the vessel keepinl{ her course, and the steamer's whistle continning to be heard. No lil{hts were seen, when suddenly the steamer, which proved to be the Oregon, loomed up in the fog, passing within about 50 feet of the schooner's bow. A hail was heard from the steamer to the effect that she had a tow, and to put the wheel of the Matt hard down. This was done, and she came up in the wind. Almost immediately the first schooner in tow of the Oregon, which was the Cyclone, struck the Matt, carrying away [wr jib.boom. Then the second schooner in the tow, which was the Locke, in a moment or two struck her a second blow, raking her fore and aft, from stem to stern post, doing serious damage. Both blows were received by the Matt on her port side, as she was standing in the wind heading south. The collision occurred about 15 or 20 minutes past midnight, Milwaukee time,-perhaps a few minutes later. For the injury thus occasioned the libelants seek to recover damages, and the question is, which vessel, if either, was in fault? 1. Was the steamer chargeable with negligence? It is insisted on the part of the claimants that, so far as she was concerned, this was an inevitable accident. In the case of a steamElJ having opportunity to know that a sailing vessel is approaching, the rule is that thesteamer is bound to keep out of the way. Whatever is necessary for 11 Wall. 240. When a this, it is her duty to do. The
753
steamer approaches a sailing vessel, the steamer is required to exercise the necessary precaution to avoid a collision, and if this be not done, prima facie the steamer is chargeable with fault. The Oregon. 18 How. 570. In the case of The Carroll, 8 Wall. 304, it was said: "As the steamer did not keep out of the way, and as the collision did occur, the steamer is primn facie liable, and can only relieve herself by showing that the accident was inevitable, or was caused by the culpable negligence of the schooner." Many other cases to the same effect might be cited. The Oregon, with her tow, was on a voyage from Milwaukee to Escanaba, and was heading about N. N. E. I do not think she changed her course after her whistle was first heard on the Mott, as was supposed by the master of the Matt. The testimony on the part of the claimants is positive that she did not. '1'he course of the wind may . have been such as to carry the sound of the whistle more to the westward than northward, and thus to mislead those on the Matt. Her lights were in place, and burning, as were those on the vessels in tow. Her fog-whistle appears to have been diligently sounded at frequent intervals. There was no omission of duty in these 'respects. The fog-horn of the Matt was not heard until the vessels were in sight of each other, and close together. This would naturally suggest a negligent lookout, and it appears that the person serving in that capacity was a young man less than 19 years old. But the master and mate were also on watch, and the testimony is direct and positive that attention was given to fog signals, and that none were heard. As the wind was from the south, its tendency would be to carry the sound of the Matt's horn away from the Oregon, and make it more difficult to hear on the steamer. Then, the master says the machinery of the boat made a good deal of noise, and thus it is easy to see that the situation was not favorable for hearing sounds from an approaching vessel. Without imputing fault to those on board the Oregon on either of the groundl:! already mentioned, I am still of opinion that the fact of the collision cannot be reconciled with the exercise of due care on the part of the steamer. Notwithstanding the testimony which tends to show that her speed was checked after the fog came on, I cannot resist the belief that she was going at greater speed than was consistent with safety, and that this was the prime cause of the colliding vessels being brought into dangerous proximity. The master says the fog was so dense that he could not see the tow behind him. As the steamer had a tow of two schooners, there was imposed upon her the necessity and duty of greatly increased vigilance and care since there was liability to collision with the vessels in tawas well as with the steamer itself. In the case of The Favorite, 10 Biss. 536, S. C. 9 Fed. Rep. 709, it was held by Judge BLODGETT that the fact that a steamer has barges in tow does not alter the rule requiring her to keep out of the way of an approaching sailing vessel, and that in such a case v.27F.no.11-48
754
the steamer should take extra and timely precautions to avoid a collision. In effect, the same ruling was made in The Civilta, 103 U. S. 699. The ohief engineer of the Oregon says she was running between three and four miles an hour; but he was not on duty, and merely looked out of his room, where he had retired for the night, and made a hasty observation. The second engineer places the speed of the boat at three or three and a half or four miles an hour. '£he mate of the Locke says her speed was probably five miles an hour. The master of the Cyclone thinks it was three or four miles, and the master and lookout of the Oregon Bay it was four miles an hour. The master, mate, and lookout of the Mott testify, from their observations of the steamer as she passed, that she was going from seven to nine miles an hour. Thus the estimates of speed per hour vary from three to nine miles. The schooners in tow were sailing light. At the time of the collision the steamer was under sail as well as steam-power, . carrying fore and main sail. The Locke was carrying foresail, mainsail, stay-sail, and two jibs. Whether the Cyclone was under sail does not appear. The wind was free for the steamer and her tow. The master of the Oregon says her sails were not drawing, but why were they up, if not to add to the propulsion of the boat? These are facts which tend to show that the speed of the Oregon and her tow was greater than is stated by the respondent's witnesses. If, instead of driving through a fog as dense as then prevailed, the steamer had stopped, even for a few moments, the noise of the machinery having ceased, the fog-horn of the Mott would probably have been heard. The master knew he was in a locality where there was liability to meet passing vessels. The violence of the blows received by the M, ti furnishes further evidence of the speed of the steamer and her tow. The Cylone carried away her jib-boom, and, as I infer from the evidence, quickly passed on out of sight in the fog. The blow of the Locke, according to the testimony, carried away bowsprit, knight.heads, rails, stanchions, bulwarks, plank-sheer, four streaktl of plank below the planksheer, thA an'chor stock, fore and main rigging, chain-plates and lanyards, and fore, main, and mizzen topmast rigging, raking the vessel fore and aft. Added to all this is the fact that th.e collision with the two vessels in tow occurred in rapid succession. The mate of the Locke says he heard a noise up ahead, which was when the Cyclone struck the Mott, and then, to use his own language, "in a second or two the Matt was right under our lee bow." He says, further, that the collision between the Matt and the Locke was within a minute, or a minute and a half, after he heard the noise on the Cyclone. The length of the tow line between the Oregon and the Cyclone was 300 feet. The proofs do not show the length of the line between the Cyclone and the Locke; but the blows of the two vessels in tow were evidently in very quick succession, and it is fair to assume that the length of the line
OREGON.
755
between the Cyclone and Locke was equal to that between the Cyclone and the Oregon. Thus, the facts and circumstances attending the collision point to the conclusion that such caution was not used in the matter of speed as the situation required. In so dense a fog, especially as the steamer had vessels in tow stretching out 500 or 600 feet behind her, I think it would hardly be unreasonable to say that it was her duty to stop long enough to listen for sounds from vessels that might possibly be approaching. At any rate, she could only properly run at such speed as would enable her to stop as soon as the close proximity of a vessel was known. In the case of The Pennsylvanin, 19 Wall. 125, the supreme court said that what is moderate speed "may not be precisely definable. It must depend upon the circumstances of each case. That may be moderate and reasonable in some circumstances which would be quite immoderate in others. But the purpose of the requirement being to guard against danger of collisions, very plainly the speed should be reduced as the risk of vessels is increased. In the case of The Europa, Jenkins, Rule of the Road at Sea, 52, it was said by the privy council: 'This may be safely laid down as a rule on all occasions, fog or clear, light or dark, that no steamer has a right to navigate at such a rate that it is impossible for her to prevent damage, taking all precautions at the moment she sees danger to be possible; and if she cannot do that without going less than five knots an hour, then she is bound to go at less than five knots an hour. lit lit . " , "And," says the court further, "even if it were true that such a rate [speaking of seven miles an hour] was necessary for safe steerage, it would not justify driving the steamer through so dense a fog, along a route so much frequented, and when the probability of encountering other vessels was so great. It would rather have been her duty to lay to," In the case of The Western Metropolis, 7 Blatchf. 214, WOODRUFF, J., held that if the night was either so dark or so foggy that, by slowing, stopping, and backing as soon as the schooner was observed. the collision could not be avoided, then the steamer was moving at too great speed. 1.'he case of The Eleanora, 17 Blatchf. 88, is directly in point upon this question. There. as appears by the opinion of Judge BLATCHFORD, then judge of the district court, (pages 91, 92,) the steamer, when the fog, which was very dense, came on, reduced her speed to five and a palf miles an hour. The master, first mate, two seamen. and a lookout were listening attentively for sounds of fog-horns, and looking attentively for lights. Neither the steamer nor the vessel collided with became conscious of the presence of the other until just before the collision. Judge BLATCHFORD said: "If the steamer had been going at less speed, or had gone abead a short distance, and then stopped still and listened, and thus made her speed, or her passage from point to point through the intervening space, and not merely hllr running rate while in forward motion, that· moderate speed' which the
