234
FEDERAL REPORTER.
that angling situation, where.shecould neither go nor back, as vessels. Neithef',the Preston nor the might. be 'required to schoener .could ha.vE! anticipated these circumstances, of the Gratitude and the float. No collision was in fact apprehended by them until the float nearlyupob. theschdoner. ldo not see that any tawt was justly the Preston, under such circumstances, chargeable llgainst the Gratitude, and the Preston disand a decree must be ' charged. . MCCABE and others tI.· OLD DOMINION STEAM-SHIP Co. (Di'WZot Oourt, D. Delawars. June"l.1887.) CoLLISION - BBTW)jlJllN STEAMER AND SAILING VESSEL LoOll;OlJ'r.' , . , . '.,' , IMHODBRATB BpBBD.
Jersey. durinl{ a densef9g, Qetween the steam.shiJ,> Seneca. outward bound on a S. t and the schooner William S:McCabe, inw.ard bound ona N. toN'. t The'S. was proceeding at the rate of above seven miles anb'bur,waa blOWing herfbg-whistle every minute. and had a proper lookout for;ward." ,The McO. was sailing at a speed of two and one-half or three how:. ana, had rio lookout forward. " Her mate stood on the forward pa'tfof tb'e 75 or 80 feet aft from the stem. from which point':theview forward:was Ullobstructed, and was engaged, in the triple duty of 10okPllt. the fog-horn. at intervals of a minute or minute and a half, aAd qf 'naVigating the vassel; The S/S fog-whistle was he'&rd on board the Mc'O.,:thr,ee or four m,inutes'p.riorto t,he coIl.iSiQ.n', but. th.e.latter's fog.horn:wllS not heard on the 6. T:b.e S. was sighted at from 800 to 400 yards ot!. Tlie:McC. was sjghtlld fr.om..the 8. aOOQt 800. feet away. The S. immediately ported her helm, and stopped and backed' her engines.. The master of the MoO. mistook the c'Oulse of the S., and starbClarde<! 'hlshelm, turning his vessel.across th" 8.'s, cour.se.The McC, was struck, between the forerigging and her starboard cat-head,and sank in a few minutes. Held, that the S.was'ln fault for proceeding at an immoderate'speed in a fog; but that the McO. was in faQlt for not having a properly statIOned lookout forward; and that the libelants having failed to prove that the absence of s.uch lookout did not contribute arid could .not have contributed to' the disaster, there mQst . be a decree for only half with costs, for the libelants.
In AdrniJ;al,ty. '
(fharles Gibbons, Jr., for <fc Gray, Prank D. Stu1'gis, and Bate8 <fc Hanington, for respond-
,
.
WALES, J. At'five minutes 6 o'clock, on the morning of the seventh of May, 1885, the three:-masted schooner William S. McCabe, while sailing from the Rappahannock river,' Virginia, to the port of New York, laden with a full cargo of grain, when about :three miles off the New Jersey coast, and a short distance south of the Scotland light-ship, came into collision with the steam-ship Seneca, belonging to the Old . Dominion Steam-Ship Company·. ;Theschooner Was struck somewhere betwp.en the fore-rigging and her'starboard cat-head" and sank in a few minutes. : The McCabe hailedfrbm Wilmington, Delaware; was 105 feet long, and 180 tOllS register. The Seneca was running Ollone of its regular trips from New York She is an iron built ship, 290 feet in length, of 2,700 ton:s register, and her engine, when fully developed,wiU tuh up to 2,200 horse-power. The owners of the schooner
M'CABE 'V. OW
STEA.M-SHIP 00.
235
and her cargo sue for damages,alleging that the disaster was caused solely by the negligence of the persons who were in charge of the Seneca, especially in running her at an excessive rate of speed in a dense fog. The respondent admits a speed of seven miles an hour, but contends that the Seneca's movements were under full control, and that the steamer ported her helm, stopped and backed, as soon as the schooner was sighted, and would have cleared the schooner had the latter kept her course,and not changed her helm to starboard. ,The schooner is also charged with not having a proper lookout, failing to blow a and sailing with undue speed. The following facts are admitted: (1) The morning was very foggy; (2) the wind was east, and blowing 19 miles an'honr; (3) the schooner's helm was put hard a-starboard before the collision, and the steamer put hel: helm hard a-port; (4) that the vessels lfiytogether five or six minutes,during which time the schooner's crew were taken aboard of the steamer. The' words "very foggy" do not convey the most accurate description of the den$ity of the atmosphere before and at the time of the collision. The fog was unusually thick; so dense that objects could not be seen through it, according to sonie of the respondent's wituesses, further off than 300 feet, while others estimate the greatest distance at not more than 50 feet. Capt. Williams, who was the master and a part owner of the schooner, states that, up to 8 o'clock on the night of the 6th, he had been carrying full sail, the wind blowing quite a fresh breeze. He judged himself, at that time; to be about the Highlands, may be varying eight,miles .from the reckoning, when he began to stowaway all his light saHsas fast as he could, and put his vessel in an easy position for the night, or as long as it stayed thick. On the morning of the seventh the 'wInd had moderated, and was blowing from the E. N. E. to E., by N. From 3 o'clock until the time of the collision the schooner was heading from N. to N. by t E., with' a speed of one mile and a half, under spanker, mainsail, foresail, forestaysail, and jib. The wind was not steady, but. puffy, ahd the vessel was not steering very well. He had been on deck since 12 o'clock the day before, with the exception of meals, and one hour for rest in' the cabin during the night. The mate was on the forward part of the poop, blowing the fog-horn at intervals of a minute or a minute and a half. The vessel being straight, and with very little sheer, he could see over the bow-tails, as well from there as from any part of the ship. An able-bodied seaman was at the wheel, and the steward was forward preparing break.fast. The fog-whistle of the steamer was heard on board the schooner three or four minutes before the collision. The captain then took the wheel to steady the vessel on her course, The steamer was sighted at froni 300 to 400 yards off, and appeared to be heading about S. ! E., varying a little, first to leeward, next to starboard, and then coming right on. The schooner was kept on her course until the steamer was, within 75 or 100 feet off, on her starboll.rdbow. when Capt. Williams put his helm hard a-starboard. The Seneca had left New York on the afternoon of the 6th, but, on account of the lncreasing fog. carne to anchor just outside the Narrows,
236
.FEDERAL REPORTER.
where she remained until 4:30, on the morning of the 7th, when the weather began to clear, and she proceeded on her voyage. When off Sandy Hook the weather again set in thick and foggy, the steamer was slowed down, and the fog-whistle sounded. Afterpailsing Scotland light-ship, the steamer was put on herregular course, S.; 1 W., and kept on that course until her helm was put hard a-port, just before the collision. Fog-whistles of a steamer ahead, and also of a steamer astern, were heard at different times, but, with these exceptions; no whistles or fog-horns were heard. Capt. Walker, of the Seneca says that he was standing on the bridge with his second officer. One quartermaster and two sailors were at the wheel, and a lookout was stationed forward. A fog haA for threl?quarters of an hour,and the fogwhistle was sounding eve.fY minute. The steamer was making between six and seven. miles an hour. .His attention was first !lirected. to the schooner by the lookout .reporting, "Sail right ahead, a little on the port bow," and immediately the order was given hard a-port, and signals made to stop and back. He saw: .the schooner as soon at; she could be seen, about 300 feet away. He told the second officer, Leyland, "We are going all clear." Leyland "No, captain, that fellow has his wheel hard a-starboard." going away from her, and she kept following us up, and ran into us." When the collision occurred he thought the steamer had come ,to ll. stand-still, because she stopped right there, and the men were taken out of the schooner. Capt. Walker contends that the schooner had three chances to keep clear of the steamer,-" First, if he. had blown a fog-horn, we would have heard it, and kept away from him; second, if he had kept course, we would have gone all clear j and, third, if he had ported his wheel the collision would have been prevented." This is the substance of Capt. Walker's statement, which is somewhat modified by the testimony of Leyland, and by that of Bensen, the lookout. The former says that he and. the captain saw the schooner almost simultaneously, a few moments before she was reported by the lookout. Leyland's opinion is that, if the schooner had kept on her course, as he first saw her, she would have passed all clear, except that her spanker boom might have scraped the steamer a little aft, (R. t. 85-87;) and Bensen says that the steamer was· going ahead at the time she struck the schooner. A great deal of testimony has by the respondent to prove that the steamer was running at moderate speed when the schooner was first SIghted, and that her movements were so far under control that she could be stopped within the distance of her own length. Interesting and instructive experiments pave been made on board the Seneca, since the collision, by scientifio and practical engineers, to demonstrat,e the fact that, when going at sev,en.miles an hour, with her engine making thirty-four revolutions per minute, she could be and was stopped within that distance. Conceding this to be proved, the question still remains, what was the steamer's actual speed during the 55 minutes before the collision? The inquiry is, not what could or can be done, with the engine slowed down to 34 revolutionr;;, with every officer and man at his
M'CABE '11. OLD DOMINION STEAM-SHIP 00.
237
post, prepared to act on.the instant, and to every order, but what was actually done, between 5 and 6 .o'clock on the morning of the seventh of May. The testimony of the respondent's witnesses, as to the speed of the ·Seneca during that period, evasive and 'unsatisfactory. Capt. Walker is the only person, who was on deck at the time of the accident, who is willing to swear that the Seneca's speed was not more than seven miles an hour. Leyland, the quarter-master, one of the sailors at the wheel, and the look-out, each having the saine opportunity of estimating her speed as the captain had, decline to express any opinion on the subject. Leyland says: "1 don't know what she was doingj whether she w8:S, gOiIlg full sP\'led. or Imlfspeed or what,"The chief engineer testifies that she w;as slowed down to 34 revolutions per minute, but the log, made at the th:he, show that the preentries Gedingthe the engine averaged 51 t. revolutions per minute, aggregating 3,070., The maxim,ulll speed of the Seneca. is 15 miles,wit]l to 61 revolutions a,minute, or 3,600 per hour. Her is J4! miles. .By .the ship's log, Seneca anchor ,at half .past 4, and up ;O'c10ck had made 1,899, full spl;led.. ,4t. 5:29 isha 'was off Sandy whicq, the w;eath,tlr," s,hut.in deIl!le fog again," and when it would have beeP. prudent to dearel1se her speed jbut the (Jrigineer's log shows' a. diminution 'nine rev()lutions to the minute: .' ' .. ; Now,allowing GO re'\iolutipns a minute,for the first 20 minutes after d,uring that timejand, 5 o'clock, the engine made 1,200 deducting this, numberfrom 3,070, the remainder is 1,870,1Vhich, vided by 35, the number of minutes elapsing from 5:20 to. the time Of the gives an average of 53 revolutions per minutej thus showing that the Seneca must have been driving through the fog at an immoderate and dangerous speed. The only comment on these entries on the engineer's log, made on behalf of the respondent is, that they'were made informally, and may be inaccurate. It would seem unnecessary to pursue the inquiry on this point any further; for, if the record It pproximatesto any degree of accuracy thecalculp.tion, paj;led on the entries, gives to the steamer a tnaterially . Qf Elpe,eil over tha,t admitted by the respondent. The entries cannot be uuderstood, and it is impossible to explain them, or any other that the .stEJamer's speed was greatly over one-half of her. maximtud rntej and, as their correctness has not been successfully impeached, the proof is conclusive that she must have been rumiing at not lells than 10 miles an hour when the McCabe was first sighted. By article 17 of the international rules it is the duty of a ship to keep out of the way of a sailing vessel, wheriboth are proceeding in such directions as to involve risk of collision; nnd article 13 requires that every ship, whether a sailing-ship or a· steam-ship, shall, in a fog, mist, or falling snow, go at a moderate speed. What is undue speed must depend upon a variety of conditions. .No formula has been established by which to determine the lawful rate ofsp:eed in afog. The general rule is that· a. p should. always 'be under such 'controllt1do be stopped and Within the distance at which /lon 'ap" '.' " ,," · ": " · :" .' ,". , ; . . i _' ,," .. ': j
,,; " ;: , "" _.(
238
cases of collision, exonerate a be takeri.,every precau,any emergency"'vblcb. nilghtarnve, ,and that.she was not guilty oftha want of ordinary care, caution, or maritime skill. The l{acoqchee,28 Fed. Rep. 462; The Oolorado,91 U. S. 692. In The l{a<:oochee, where a:v.essel could be seen only 200 yards off, ,six, knots an hollr was held tbllein excess, of the moderatespeed required ·by r'1.1e. [. IriThe was. ronning, i? a fog, at five ,?r SIX }Inles hour. guilty of negligence III not slackenmg down to a slower rate. ", , In fqtfiwiZle. 12 a speed ,of even four miles an hO).lr by in a consi,deredexcessive; and it was also that when on one of the most frequented parts .olthe cir6umstances, flograater speed should be allowedtpan is actually to afford steerage way. In ThtI:,f'ITI/MJjlvi;J,nia, 19 WaIl.t33, this subject of moderate speed was :p:J.ost That of a collision whic:;h occurred in a very between.a saiJAng bark and a ll!-rge steamer, about 200 miles in the track of inward and outwardbound,v!lS!le1s. ' Thebal'kwasmoving at about the rate of a mile anho'ur.' r'Tne steamer at the rate of seven knots an hour, )Vhich to be "The court say that "n:oderate speed" IS definable·. depend the of each case, I may be and, reasonable 1D Some ,CIrcumstances which :qe.'quite others. Brtt the purpose of the rato guard of collisions, very plainly 'the speed shou.ld.be redlicedilsthe risk of meetihg vessels is increased." " In the case of The ,Jank. Rule Road, 52; it was said by the '" , . privy counc;il: "This may be safely laid, dowIlaa ,a rule on .all oCl,lasions, fog or clear, light or dark, that no steamer ,has the righttonavigate at such a rate that it is impossible for lier to prevent damage, taking all precautions at the moment she ,llees danger 'to be possible; 'and if she cannot 'do that without going less than flve knots an hour. then she is'bound to go less thanflve knots an hour." '. speed of is seven miles.' 1'he evidence proves that it lllU!'lt 1lave, been it is impossible to fix the exact rate. En9l,lgh.has been condemn. her for negligence in this respect, and tomake responsible for the collisiun. But were those in 'charge 'ori:.P"e schooner guiltless of any contributory fault? .crew of the McCabe, that her,foghom testimony, of thoseon board of the It IS ,not fQr the same sound to be heard faintly, .if at ali, f()r a shortdistai;1ce, in one direction, and with more or less force Jor a longe.rdi!iltance in Practical tests, have proved that are not unreliable and that they can,npt pedepen1ed on in every ,c,oI}?ition of wind apd, atmosphere. It may tp"erefo.re true, thflot/. the mate of the schooner blew it n9t on board of the Seneca. Nor does It appear from the eVIdence that the
prOllchirig, ,s:teamerit
to
The
M 'CABE V. OLD, DQlIUNION STEAM-SHIP CO.
schooner was at'more than speed. She \Vas loaded;' and' carrying only' her lower sails. Her progress through the /lnd a half or three D;Iiles an hourlwater did ,not probably little more thlJ,n enQughto give her good steerage way; and, in view of the, difficulty of regulating the speed of a when making any hea.dway /It all, this be considered as 'excessive. Neither wouldthestarboarding of her pelm, just before the, collision, have been a fault, if it ,could be made clear that the change WaS made in eUremis, an,d ina condition of impending peril to which she had ,not been brought by any actor neglect of her own. ,And this brings up the only really embarrassing question, in this case, to-wit, did the want of a proper lookout on,1;>o/lrd of the schooner (jontributeto the acoident? ' Itis admitted......,for the f!lct is. beyond the schooper had noloQkout on the top-gallant forecastle; but itJs contended that the mate, who. Wll$ in that, capacity, standipgop the forward part of the poop <Jeck, commanding a sufficientlY advantageous position for :a perfect vieW' orall that could be seen, and that waS'seen as soon &$ the attention o(those on board had been9llJled to the proximity of i;hestellmer by hearing her whistle, and, it riot likely they tqeir lives to hazard by neglecting to maintain :a vigilant,watcp.; that theschOOI;ler being obliged ,to hold her (lQ'qrse, and, her offipers having, been, in possession seasonably of all the infoqnatien a 19okout could ha,ve ,given, the services of the latter were not in-dispensable. This reasoning, is ,plausible, butit asSumes as a faPt' what the evidence leaves doubtful and undetermined, namely, that, had a lookout, been properly on the fonvardpart, of the he ,couldnQt have givenearlier and, more accurate info,rIllation of theapproach and of the Seneca.. The mate was standing about 75 feet from the bow, engaged in ,the triple duty ofldokout, bom"a.nd navigating the vessel. It he had of the vessel. ji,q.d the captain. was,assisting him.L. t. 61. " " , InThfJ Northern Indiana, 3 Blatchf. 92, it.wai\held that "the wautof .alookont, de,tailed and stationed for the specific ,duty, is of itself a circumstance of strong condemnatory charaCter, and exacts all cases from a 'vessel neglecting it clear and satisfactory the misfortune encountered vrasin'no way attributable to the miscp,nduct in that particular." In The Great, Republic, 23 Wall. 20, it was said by the court: "In any .case of collision, whllnever it of the vessels has neglected the. usual and proper measures of :t>recaution; the burden is on her .to showthllot collision is not OWing to her neglect: '" And in The ,Pennsylvania, ,lfUP1"a, Mr. Justice STRONG, speaking for the ,court, said: ' . "It Illllst be, AOnceded that, ,if .itciearly appears the fault could have had nothing to do with the disaster, it may' be dismissed from consideration. .. * * But,When, as in this case, a ship atthe time of the collision' is in aetual violation of a statutory rule intended to prevent collisions, it is no more than a l'easollable presumption that the fault. if ,not the sole,cause,wl,lB all 'least a contributory cause oftha disl,lBter. In such the burdenr8l!tfl upon the ship ,at tba,Ji her fau,lt Uligpt not i
240
FEDERAL REPORTEn.
of the causes, or that it probably was not, but that it could not have been. Such a rule is tlecessllry to enforce obedience to the mandate of the statute." In The Ottdwa,3 Wall. '273, "ptoper lookouts," as required by article 24, are described as other than the master and helmslllan, properly for' that purpose on the forward part of the'vessel. '* ,* * Lookouts stationed in positions where the view forwa:rd,oron the side to which they are assigned is obstructed, either 'by thEi ,lights, sails, rigging, or' SVll.rs of the vessel; 'do not constitute a compliance with the of the law; and, in general, elevated po'such hurricane deck; are not so favorable situations as those more usually'selected on fotWllrd, pl1rt of the vessel, nearer the stem. II InThe !£xce'lBior, 12 Fed. Rep:'195 , following, The Fa'l'ragut, 10 Wall. 334, and The Fannie, 11 Wall. 238,tlje court held that Hthe want of a proper)o?kout, it is true, is inllnaterial, if it in 110 way 'contributed to theacl'{illent." ,But the question in that case, as here,was one of fact, :whether the lights visible from the one vessel to the other were in fact and noted; and the court say that "the position of the correctly captain of abaftofthe wheel cannot be admitted foi' a moment 'as a proper position for'li:lookout, when sailing' full and free with a strong 'Wind, and, in caseota,conflict of testimony observation reportell from .Bucha position, m'tlst be deemed ,partial, interrupted, and incoihp!ete, 'and entitlEid to far less weight than that of a lookout prop,And, on the evidence, the court found it "impossible ,to say that the schooner's change' of course did not contribute to the collision.'" ,' , So, after a' 6areful examinati'onof the testimony in the case at bar, it is impossible to 'say, with any degree of certainty ,'not probability, that a lookout on the McCa.be, stationed 75 to 80 feet forward of the position occupied by the mate, with his whole attention directed to watching and listening for the appearance and sound of an approaching steamer, could not have repqrted the Seneca 'sooner, than she was seen from aft. Capt. Williams; ,unfortunately, mistook, the exact course of the Seneca. A proper lookout might hav'eprevented this mistake. It is by no means certain that he could not and would not have done so. The Seneca had ported, and was, swinging around to leeward, when the captain of the McCabe, in the confusion of the moment. and from the want of informamight have been imparted by a lookout properly stationed, tion starboat<ied his wheel, and threw his vessel acrosS the bow of the steamer. Had kept the McCabe on her course, he would probably have gone ported instead of starclear. He wou1<l certainly, have, escaped had boarding, as the steamer's course at the moment of collision had been changed two points from S. l' W; tb S. S. W. l W It may be admitted ·that th,a was guilty of the greater fault in running with such reck. sj:>'eed, 'put ,this does not excuse the absence of a .proper lookout ,on the McCabe.' ,', ' Since the libelants have failed' to'prove that such absence did not contribute, and could not have contributed, in any. degree, to the dis;;s;stcr,Jb'ere must be a decree for only half damages,with costs for the 'libelantS',' kndan order 'of referericetQ ascertain the amount.
:MYRICK
'11.
HEARD.
241
MYRICK v. HEARD. «(Jitrcuit (Jourt, 8. D. Georgia, E. D. April 80,1887.)
1. 2.
FEDERAL COURTS-STATE DECISIONS.
Where a question involving the title to land in a state is well settled by the decision of its court of last resort, it will be followed by the courts of the United States, even though they may have understood the law otherwise.
SAME:...LCONFLICTING STATE DECISION.
The courts of the United States will follow the .latest, settled adjudicatipn,' llut they cannot be expected to follow osqillations in the process of llettlemeJ;lt.
8.
WILLS-CONSTRUCTION-TESTATOR'S INTENTION.
4.
A cardinal rule for construction of wills in Georgia is to seek diligently for the intention of the testator, regardless of technical'rules, and, when such in'tllntion is ascertained, to allow its full operation, provided it does not con',travene anylaw or public policy. In a clause of a will in these words: "To hold.in trust for my niece Abi¥,ail Nelson, the daughter of my sister Elizabeth Nelson, and her heirs, and If she, the said Abigail, should die without issue living at her death, then, in default of such issue, to my sister Elizabeth Nelson,themother of 'said Abi· gail;' for life, remahider in' fee-simple to my nephews Augustus, Francis, Sheldon, and Mitchell Doughtery, the sons of my brother Lemuel Doughtery, and their heirs, "-the word "heirs, " as used, is a mere descriptio personarum of the issue of the life-tenant living at the time of her death. This clause does not create a perpetuity, but provides simply for the root of a new inheritance. It is tantamount to "heirs of the body," and indicates persons'intended to take the estate.
SAME-'LIFE-EsTATE.
5.
SAME-PERPETUITIES.
This clause casts the title on the plaintiff, the only child of the life-tenant the time of her death, and excludes the husband of the life-tenant, who claims by virtue of his marital rights. (Syllabus by the Oourt.)
6.
SAME-MARITAL RIGHTS OF LIFE-TENANT's HUSBAND.
At Law.
Motion to direct a verdict in an action of Ejectment.
John M. Guerrord and Oharles N. West, for plaintiff. DeU « Wade and Lester &: Ravenel, for .defendant.
SPEER,J. The plaintiff' in ejectment, having introduced her evidence, rested, and the defendant moved the court to direct a verdict in his favor, and the question depends on the construction of the following clause in the will of Mary Ann Murray, that is to say: "I give and bequeath," etc., "to hold in trust for my niece Abigail Nelson,
the daughter of my sister Elizabeth Nelson, and her heirs, and if she, the said Abigail, should die without issue living at her death, thell, in default of such issue, to my sister Elizabeth Nelson, the mother of the said Abigail, for life, remainder in fee-simple to my nephews Augustus, Francis, Sheldon, and Mitchell Doughtery, the sons of my brother Lemuel Doughtery, and their heirs."
At'the death ofAbigail Nelson, the plaintiff, her daughter,and the only child, was living. It is insisted by counsel for the defendant that Abigail took, under this devise, the fee, determinable upon her dying withOl1t issue living at the time of her death; and, as this contingency did v.31F.no.5-16
