It
too. great speed. " the danger. her to the place of greatest difficulty at the most unfavorable tir;neJor passing making herunmanagea);>le." In my JudiOharlotte is solely to blame.forthisC?llision. :,1
TnE ROBERT HEALEY.. THE
SILVER STAB.
TuOMAS et al. v. THJl: ROBERT HEALEY.. BROOKS v. THE SILVER STAB. (Dtstrict Oourt, D. Marukmd. .Tune 9, 1m) ;L CoLl,TATftW.-f1A.'lt.ING . 1n a (>011 i"ion betwelln two sailing vessels J;IIeetlng nearly b.ead on. one tlaTtIl!!, ttle r... ·l· and the other being 010seh8uled. held. that the vessel whiob bad the wind free, an<Jwl:ltQh was, bou!ld t.Qkeep out CIt th.e way, bad i tailed to do so, In cousequence I;)f a negligent who diu not see the other vessel's lights until close upon her; and held, fLUlo, that she had misled the other vessel by her unsteady course; L IN EXTRBMIS. ' Held, that the vessel which was clollehauled notln fault. altbough, being misled by the otber's unsteady course, she made two slight cbanges ot coursehand then in extrem!8 made a change which contributed to the collision, the proof sowIng thatslle ,was ,carefully by: competent and vigilant men, attentive to their duties, and there being 'no ji{round for IUllPosing that greater attention 01' Iklll would bave avoided the el'ror. b1Ithe Ooun.)
In Admiralty. Cross IilJels for a collision the schooners Silo ,.er Star and Robert Healey·. Decree against. the Healey. p. W. Mister, forcomplaiullut. llobert, H. Smith, for rtlSl'ondent. District,Ju(lge. I find that the two schooners for some time ,J;tefore the collision were approaching each other nearly head' on. and nearly opposite courses; the course of the Silver Star being from $,by E,to S., and the course of the Robert Healey about N. by E. I fin<Uw way of accountiIlg for the varying lights of the Healey as seen eXCl"pt that she rlid notJlOld a steady course. She was ,.4E¥lplyJoaded wit1;llqmber, a deck load, seven feet above her deck, ..Sbeshowed totbe Star first herred light, ,!w;, and J1wn ller red light again, and all the time the !J.head ofthe Star, and I only account ffw.; bythll:·u9st,eadin,essofher, 9ourse. I find tbat the J'l'M her lo()kout; did not Mee the ,Star'sligbt no tofl.:void her until I
THE BO:BEaT RA:LEY., .
488
,when be gave the order to his wheelmanto hard astarboard. hishelll1> '.Thewheelman testifies that the Healey kept her courseN. by E. FE-, unmbe got anordar from the master to keep her hard off, and he ,then put his wheel hard astarboard andjumped up on the tiller,and saw the Star's lights one or two lengths off. I find that if the master had seen any lights ahead, until just before he ordered the wheel hard astlit'board, they were not the lights of the Star. I find. as is conceded! that the Healey had the wind free, and the Star was closehauled, and 'that, under article 14 of the international rUles, the Healey was bound to keep out of the way. I find that there was not a good lookout kept on the Healey, and that the position of the master abaft the foremast, and standing on the deck load oflumber, the top of which was seven feet above the deck, and several feet higher than the lower edges of the fore.sail and jib, was not well placed for a lookout, and did not see the lights of the,Star until very close upon her. I find that the Healey did not take timely precautions to keep out of the way of the Star, and' by chan.. ging het lights misled and confused those on the Star, and ran so close to her as to bring about the collision. I find the Healey to have been in fault. ' , . With respect to the Star, I find that she had' a lookout properly placed;, Bnd. saw the lights of the Healey at (,,onsiderable distance off. She fi11ltIllade out the Healey's red light dead ahead, and ported ber helm. a little, and fell off from the wind about a half a point, sufficient for the wheelsman to !'lee the red light on his port bow, and to show the Star:'s red light to the Healey. Presently the Healey showed her green light a little on the Star's starboard bow, and the Star luffed a little, to show her green light more distinctly, but in a short time the Healey again opened her red light and showed both her, lights,snd was appar. ently coming directly for the Star on her starboard bow, and about 50 yards off. Then the master of the Star, thinking he would be l!truck amidship, put his wheel hard aport and slacked off his main sheet, and went oft' quickly to westward. As the Healey just at the same moment discovered the position of the Star, and hard astarboarded his helm, the two vessels came together. The Star, by the averments in her libel, awl by the testimony of her master, three changes in her course. The first two were very slight. The first was when she went off about one half & point to westward to show her red light to the Healey's red; the second was when she luffed back a half point to eastward to show her green light to the Healey's green, and the third the decided change to the westward in the attempt to avoid the collision. As to the first two, although slight, they were contrary to the rule which requires the vessel closehauled to keep her course. They would have been proper changes if the Star had been called upon to assist the Healey in keeping out of the way. They both, if the change in the Healey's lights had indicated a corresponding change in her navigation, would have assisted her. But as I have found that the Healey had not discovered the Star, and that the 4}hanges in the Healey's lights resulteo from want of steadiness in her
484
J'EDERAL
voL. 51.
.course, these slight changes of the Star had no effect·at all upon the situation. The result was that after the Star had made the second change she was back on her original courseclosehauled .on the wind, and, as the master of the Healey had not been observing her at all, he had not been baffled or misled. I cannot see, therefore, how these might changes can be said to have contributed in any way to the collision. They were not the result of inattention or want of skill, but rather of an anxiety to co-operate with the Healey in avoiding danger. The last change made by the Star is a more serious one, and it is true of that change also that if it had been conneoted with any want ofattention or neglect, so that the court could presume that more care and sk:ill would have prevented the error, the Star might have been placed in the wrong by it. It is quite clear, however, that when it was made the lights of the Healey indicated that she was coming directly into th.estarboard side of the Star, a.nd her previous changes had indicated that she had not observed the Star's lights. There were three men On the Star's deck, all alert and attending to their respective duties. , She was a pungy, quickly handled, but easily sunk by a larger vessel. Her master was an' experienced marinel', and for 40. yeal'S accustomed to the navigation of Chesapeake bay. He claims that when he had ported his helm and eased off his main sheet he bad no doubt about its being the proper thing for bim to do to ease, the blow and prevent his,vessel being sunk. Under the circumstances the master of the Star is entitled to a strong presumption that what he did in the situation in which he found himself was the right thing to do, and, if it was an error, the .Healey had brought about tbe impending danger, and cannot allege the error as a fault. I find the schooner Robert Healey solely to blame for the collision.
OREGON SHORT LINE & U. N. RY. CO. V. NORTHERN PAC. R. 00.
465
OREGON SHORT LINE
& U. N. Ry.
CO.
v.
NORTHERN PAC.
R. Co.
(Circuit Court. D. Oregon. June 15, 1892.)
L CUSTOM AND USAGE-PROOF OF CUSTOM. The testimony as to an alleged custom of railroad companies operating connecting lines, to receive from each other and transport freight in the cars in which it was tendered, established that, except where the cars of the receiving company were all in use, or where the freight would suffer by being transferred, the question whether the freight should be so received or should be transferred to the cars of the receiving comparry was, as a general rule. dependent upon contracts betvreen the companies, or upon circumstances, such as the condition ana equipment of the cars and the road over which they were to be transported, the determination rest· ing with the receiving company, and the amount received in one way or the other constantly varying. that no controlling custom was shown. So CARRIERS OF GOODS-CONNECTING LINES-PREPAYMENT OF FREIGHT. In the absence of any regulation by law or custom, a railway company receiving freight from a connecting line is not required to advance or assume payment of the charges due thereon for transportation from the point of origin to the point of connection. ' 8. CARl1IERS OIl' PASSENGERS-CONNECTING LINES-PASSENGER TICKETS. In the absence of any arrangement between connecting railway companies, there is no obligation on the part of either to honor passenger tickets issued by the other. 4.. CARRIERS - INTERSTATE CoMMERCE ACT - DISCRIMINATION BETWEEN CONNECTING LINES. Section 8 of the. interstate commerce act, (24 St. p. 880,) making it unlawful for any' \:lommon carrier, subject to the provisions of the act,:to give "any undue or Ull, preference" to any company, etc., or locality, or particular description of traffic, and providing that such carriers shall" afford all reasonaQle, proper, and equal facilities for the interchange of traffic between their respective lines, and for receiVing, forwarding, and delivering passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines, but this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business," does not require a railroad company to receive freight in the cars in which it is tendered by a connecting line, and transport it in such cars; paying car mileage therefor, when it has cars of its own available, and the freight would not be injured by transfer. DIUDY, J., dissenting. l5. SAME-RUNNING CONNECTIONS. . The provision in the charter of the Northern Pacific Railroad Company (Act Congo July 2,1864) requiring the company to permit other companies to form "running connections" with it, includes only such arrangements as to the arrival and departure of freight and passenger trains, and as to stations, platforms, and other facilities, as will enable companies desiring to make connections to do so without serious' inconvenience, and does not impose any obligation upon the company to OlIorry freiKht in the cars in which it may be tendered by a connecting line when its own cars aTe not in use, and the freight would not be injured by transfer to another car. DEADY, J .· dissenting.
In Equity. Action hy Oregon Short Line & Utah Northern Railway Company against the N.orthern Pacific Railroad Company. Judgment for defendant. Statement by FIELD, Circuit Justice: The complainant is a corporation form en under the act of congress of August 2, 1882, entitled "An act creating the Oregon Short Line Railway Company, a corporation in the territories of Utah, Idaho, and Wyoming, and for other purposes," (22 St. p. 185, c. 372,) and by the conit, under the authority of the general incorporation acts solidation of those territories and of the state of Nevada, in force on the 27th of July., 1889, of the following corporations, namely: The Oregon Short v.51F.no.8-30
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