THE KANAWHA.
329
have been done, or, if possible, would have been done, by the owner of the iron, if present in Amsterdam. If it was not possible to have transhipped and forwarded the iron by any other conveyance, at a reasonable cost; and if, considering the value of the iron, and its imperishable character, and the expense of handling it, a prudent owner would not have stored it,-then it is difficult to see how the owner's position was made worse by not having had notice. In the a,bsence of other evidence, the reasonable presumption and inference is that a prudent owner would have taken the chances of allowing the iron to remain on the vessel, and would have suffered the possible additional rust and the delay, so that, in the end, he might, without additional expense, obtain the advantage of the very low freight which the owners of the Jason had agreed to take. The delay not having been the fault of the ship-owners, and the care of the iron having been, under the circumstances, reasonable and proper, and the want of notice not having been shown to have prejudiced the ownel'S of the iron, their libel must be dismissed.
THE KANAWHA. 1
(DiafJrict Oourt, E. D. New York.
February 17, 1886.)
COLLISION-STEAMER AND SCHOONER-CHANGE OF COURSE-EvIDENCE.
As the schooner M. M. was approaching New York harbor on the night of July 18. 1884, she was run into and sunk, near the Scotland light·ship by the steamer K., which had lately left New York. The schooner's witnesses testified that from the time the steamer's lights were sighted the schooner's course was never altered until the collision, and that her red light was CODtinually exhibited to the approaching steamer. The evidence for the K. showed that the green light of the schooner was first seen a little on the steamer's port bow, whereupon the latter ported; that when the schooner's light had come to bear over the starboard bow of the steamer the schooner ported, and that this change of helm brought her under the bows of the K. Held, on the evidence, that the steamer's account was the true one; that the change of course on the part of the schooner caused the collision, for whic1 she was alone responsible..
In Admiralty. 'l'his was the case of a collision between the schooner Mary Matheson, which was bound on a voyage from the Potomac river to New Haven, Connecticut, and the steam-ship Kanawha, bound from New York to Newport News. The collision occurred near the Scotland light-ship. The steam-ship struck the schooner on her port quarter, sinking her almost immediately, and causing a loss of about $13,000, to recover which t-his action was brought against the steam-ship by Higgins and others, owners of the schooner. The schooner was make 1 Reported
by R. D. & Wyllys Benedict, Esqs., of the New York bar.
330
FEDERAL REFORTER.
ing for the Swash channel, with the wind light from the W. S. W., on a course, according to her story, about N. N. W. John G. Dodge IX Sons and Butler, Stillman IX Hubbard, for libelants. Gharle.s ll. Tweed and Robert D. Benedict, for the Kanawha. BENEDICT, J. The question to be determined in this case is a question of fact, namely, whether, as the colliding vessels approached each other, the schooner held her course, as she says she did, or altered her course by giving way, as the steamer says she did. There is no serious dispute as to the movements of the steamer. What she did was right, if, as she says, the schooner, when first seen, showed her green light, and thereafter gave way so as to her red light, thus bringing her under the bows of the steamer. What the steamer did was wrong, if, as the schooner says, the red light of the was always displayed to the steamer as she approached. A careful examjnation of all ,the testimony bearing upon this point has forced upon my mind the conclusion that the account given by the steamer is the true one, and that, in this instance, there was a change of course on the part of the schooner which caused the collision. Some of the considerations leading to this conclusion may be stated. It is proved that the schooner, when struck, was upon a course more to the northward than the true course for the locality. This circumotance-as to which there can be no doubt, in view of the locality-is, to my mind, strongly suggestive of a change of course by the schooner shortly before the collision. It is true that the mate, who had charge of the schooner's wheel, says that the schooner, from and before the time of seeing the steamer, was upon the course upon which she was sailing when struck, and it would be possible for her to sail UpOD, such a course, although making for the .Swash channel; but such a course would not be her true course, but an improbable course, under the circumstances. The reasons assigned by the mate for sailing upon such a course when bound for the Swash channel are not satisfactory. the account given by the witnesses from the schooner renders snch a change of course on the part of the schooner as is charged by the steamer highly probable, for these witnesses say that when the approaching lights were seen by them no mast-head light was seen, and for this reason the llghts were taken to be the lights of a sailing vessel. Such a supposition on board the schooner would naturally lead to just the change which the persons on board the steamer say the schooner made; the schooner, sailing free, meeting, as she supposed, a sailing-vessel, close-hauIEld, would naturally port. Thero is also a. suggestive answer glyen by the schooner's lookout, (Hopkins,) when he speaks of the steamer's lliffing across the schooner's bows. It is true that at the time of which the witness is speaking it would not be possible for the
831
steamer to cross the schooner's bows by luffing, the wind being as all agree; but what I notice is that the witness, when he made this answer, evidently had in his recollection, as existing at some time, a situation of the vessels when the steamer, by luffing, would cross the schooner's bows. Such a situation, while in accord with the testimony from the steamer, could never have existed if the mate's account of the schooner's course be true. It seems to me, by this answer of the libelants' witness, the truth of the case is disclosecl to be that the schooner, when seen, was showing her green light, in which case the steamer would cross her bows by luffing; and that the schooner, supposing that she was meeting a sailing vessel, close-hauled, bore. away, as the witnesses from the steamer say she did. Again, it is agreed that the steamer, on seeing the schooner's light, starboarded her helm, and bore away. Such a movement is exceed. ingly improbable, unless, as is proved by the witnesses f!'Om the steamer, the light of the schooner, when seen, was taken to be a green light. 'fhe libelants' witness Barnes, who was the steamer's lookout, also proves that the schooner's light was seen and reported by him in time to avoid collision. It seems more improbable that severa) persons on the steamer, who saw and acted upon a light before them, should have mistaken a red light for a green light, than that the schooner should have borne away on approaching a light which she says she supposed to be the light of a sailing vessel, and of a sailing vessel, of course, close-hauled; and in a case like this probabilities must determine, for it is not possible to reconcile the testimony given by those upon the respective vessels. . In this connection, I may say that I place no confidence whatever in the statement of Barnes that the light he saw on the schooner was red, in the view of the testimony of several witnesses that he reported the light as green, and the further-proof that he demanded $25 from the steamer when asked to give his testimony; that he has interested himself to procure another to agree with him in his stOl'y; and that his manner upon the stand was far from assuring. Indeed, the course pursued by this witness, and the testimony he gives, tend to create, in my mind, the belief that he knows that the course of the schooner when seen was such as to display her green light to the steamer, and that the steamer properly starboarded on seeing the light in order to go under the schooner'!,; stern. At any rate, it is plain that for $25 he would have said that such was the fac't. These are some of the considerations which have led me to adopt the statement of the steamer's witnesses as the true statement of the facts of this case. In reaching this conclusion I have overlooked no one of the positions so earnestly and so ably contended for on behalf of the schooner; but, looking at the whole case, my opinion is that the weight of the argument is with the steamer. The libel must therefore be dismissed, and with costs.
332
FEDERAL REPORTER. THE RICHMOND. t HASKINS v. THE RICHMOND and another. THE MARTIN KALBFLEISCH. (District Oourt, E. D. New York. May 26, 1885.)
COLLISION-STEAMER, AND SCHOONER IN TOW-SUDDEN SHEER-LIABILITY.
The steam-boat Richmond, having collided with a schooner in tow of the tug Kalbfleisch, and suit being brought in consequence by the schooner against both the steamer and the tug, held, that the weight of evidence indicated that the Richmond caused the collision by suddenly sheering in an attempt to go to the starboard of the tug, after having signified her intention to go to port; that libelant should therefore recover of the steamer, and the libel against the tug should be dismissed.
In Admiralty. H. D. Hotchkiss, for libelants, William O. Haskins and others. Owen If Gray, for the Richmond. E. G. Davis, for the Kalbfleisch. BENEDICT, J. I have been unable to discover any way to recon· cile the testimony of the persons on board the respective vessels involved in the collision that gave l'ise to this action. I therefore base my decision upon the testimony of Harvey W. Temple, the pilot of the steam-boat Connecticut, who was in a position to see and hear all that occurred, whose attention was called to the vessels before they came in contact, and who has no interest in the controversy. According to the testimony of this capable pilot the Richmond, being to east of the tug, after replying to a signal of two whistles from the tug with", signal of two whistles,suddenly sheered to west, and by that means suddenly brought herself in contact with the schooner, which the tug had in tow upon her starboard side. Taking this statement as furnishing the true account of the accident, there can be no doubt that the Richmond alone must be held liable for the damage done the schooner. I incline to the opinion that the explanation of this sudden Aheer of the Richmond to west is that she did not see the tug at first, but did see the Connecticut, and was intend· ipg to pass down to east of the Connecticut, when she suddenly made the tug, and at once ported in the efi'ol't to get to west of the tug, but when it was too late. Thero is much testimony not in harmony with this theory; nevertheless, to my mind, it appears highly probable that this is the true explanation of the occurrence. Much stress has been laid by the advocate of the Richmond upon testimony from the schooner tending to show that the tug began to swing to west before the Richmond did; but, if that fact be con1 Reported
by R. D. & Wyllys Benedict, Esqs., afthe New York bar.
