948
nDERAL REPORTER,
vol. 53.
ageneylUggested by afterthought can be reckoned negllgenee, there.
was no occasion, in the of due care, to set a watch over a lot of cotton while upon a landing at sO lonely a place. H.8.d the cotton been stol'ed in the warehouse,-which, however, did not belong to, and was not under the control of, the libelee,-the probable result would have been that that would liave been fired to accomplish the destruction of the cotton. My conclusion is that the averment of negligence is not sustained, and that the loss was within the exception of the bill of lading. The libel will be dismissed, at the costa of the libelant. THE RABBONL
THE NELLIE E.
nmmALL. Juue 27, 189L)
STEWART et al. v. RUMBALL et aI. (DIstrict Court, D. Maine. No.
ro.
Where two salling vessels are approaching each other nearly head on. or on close parallel llnes, one of them sailing closehauled on the starboard tack, and the other going free on the port tack, It Is the duty of the latter to keep out of the WilY, and if a oo1111::10n occurs she must be held In fault she clearly shows that tho other vessel was guIlty of fault causing the collision. .. SA.l!B-DAMAGBs-INTEREsT. A libelant who recovers for a oolllRion Is entitled to Interest when he has been constantly urgent to bring the case to a decision, and when the cla1m· ants have strenuously sought delay In order to procure the testimony of material Witnesses, whom they do not finIllly prodUce.
L
COLLISION-BA.ILING VBSSELS.
In Admiralty. Libel by Thomas J. Stewart and others, owners 01 the schooner Rabboni, against O. P. Rumball and others, owners 01 the barkentine Nellie E. Rumball, to recover damages for a collision. Cross libel by the latter against the former for the same collision. Decree for libelants. Eugene P. Carver, for owners of the schooner Rabboni. Edward S. Dodge, for owners of the barkentine Nellie E. Rumball. WEBB, District Judge. Cross libels for damages in a collision between the two-masted schooner Rabboni and the barkentine Xellie E. Rumball, on the morning of October 10, 1888, at a point about Dlidway between Handkerchief lightship and Shovelful lightship. This collision is attended with more than the ordinary ditli.culty arising from con11icting testimony. Practically the only important evidence comes from the two captains. At the time of the affair, each was, and for a long time before had been, on the deck· of hm vessel. Each admits that he was seasonably notified of the approach of the other. They differ not materially as to the exact place where the collision occurred, and somewhat as to the direction of the wind, and the precise course upon which the two vessels had been sail-
THE RABBONI.
949
ing. These differences might well be attributed to inaccurate observation, especially as one of the captains, at least, does not pretend to have based his testimony on any observation of the compass, and statements of distances are only estimates. But no explanation or solution of their contradictory statements respecting the relative position of the vessels when they were respectively seen, or of their subsequent management and movements, has been found by me, after very long and careful examination of the evidence. The proctor for" the owners of the Rabboni invokes the principle that the testimony of a crew as to what took place on their own vessel is entitled to more weight than that coming from others. Admitting the force of the position, I still find no aid; for the rule is as applicable in this case to one side as to the other. Each party testifies to the movement and management of his own ship, and undertakes to describe that of the other. 'As one side or the other is listened to, the position and maneuvering is exactly reversed. One side says the vessels were approaching each other starboard to starboard, and on lines that would have kept them a safe disljunce apart, when the barkentine suddenly ported her helm and ran directly for the schooner's bow, striking her within 30 seconds. On the other side it is said that the approach was on lines on which they would have passed a reasonable distance to the port of each other; but, as they came near, the schooner starboarded her helm and crossed the barkentine's bow, so close at hand that the collision was unavoidable. Each admits that lie saw the light of the other at a distance of a mile at least. The hour was a little after 3 in the morning, and the weather such that lights were fairly discernihle from a mile and a half to two miles. Both claim to have had regulation lights properly set and clearly burning. The captain of the schooner testifies that he saw both lights of the barkentine in snccession; first the green light, and then the red light. The captain of the barkentine says he saw the schooner's red light, but no green light, although, as he struck the schooner on the starboard bow near her fore rigging, he was in position to see it, if burning. The steward of the schooner testifies that it remained bl"ightly burning through the night after the collision, and until taken down at daylight by one of the crew, Peterson. Peterson testifies that it was burning just before the collision, as he knows from seeing its loom on the rigging, but makes no mention of taking it down, and carrying it aft, the next morning, an omission that he would not pl-ohably have fallen into if the fact were as tlw steward relates. EII,ell captain saYR he examined the other's light with his spyglass. As the captain of the schooner had the wheel and was steering all the time, his use of the glass is not free from doubt. Both captains are wen of great experience, and well acquainted with na"igation across the shoals. Both appeared well when testifying uefOl'e .the court. proctor for the barkentine has carefully and exhausth'ely analyzed the eddellce, and, in a very able and forcible argument, pointed out and urged many inconsistencies and improbabilities ill
950
FEDERALMP,ORTER,
'voL 53.
theea8e of the RabbOni, which he ;elaimnire sufficieiiCto,determiue the doubtaof thecaae, and put 'the SChooner whollyih,the, wrong. He'especially presses the iimethat:one man had been kept ion lookout,Withoutrelief, and the absence of that lookout's Jtestimony; the captain's keeping the wheel for some three hours, though a seaman other than the lookout who might. have taken it was on deck all tIle while; the different statements as to courses and wind found in the protest, the libel, the answel' to cross libel, and Capt. l'apley'R evidence; the inconsequential reaSon for tacking so far from Shovelful lightship; the improbability that an experienced: seaman woul d haye pursued the track and tha probability that the schooner would have brought up on the Stone Horse shoal if he had done so. He eontends that the testimony from the lightships, and that of the captain :01 the steamer who towed both vessels to Vineyard Haven the day after the collision.:contirmshis, criticism, and supports the contention on the, part of 'the barkentine. and the allegations' of the answer to the libel and those of the cross libel. This argument certainly is persuasive, and leaves my mind in a degree of hesitancy :LS to thecorrectD,esS of the conclusion I have reached in respect to thesecaaes,-a lack of such unquestioning confidence as I wish. In justice to the owners of the barkentine, it should be said that their, efforts to secure' the testimony of the second mate and the two seamen :on the lookout and at; the wheel at the time of the collision, well known, to ,the court,' ftillY' relieve them from any prejudice that might arise from the nonproduction of those witnesses. Buttke undisputed and concurrent, testimDny of all the witnesses from both vessels is that the Rabboni was on the starboard tack, .nearly if not not quite clos.ehauled, and the barkentine was free on the port tack. It was then the duty of the barkentine to keep clear, and, failing to do so, the burden is on her to justify her.'failul'o and exonerate herSelf from fault. This is not controverted. The effort has been to avoid the responsibility by showingo.that the whole trouble was caused by the wrongful and inexcusable navigation of the schooner. Notwithstanding the hesitaney above stated, I do not feel warranted in saying that the burden has been successfully met and the exoneration clearly established. The decree must therefore be in favor of the libelants, et al., and the cross libel JUllst be dismissed, with costs. Unle!!s the parties agTee upon the amount of damages, the assessment will be referred to an assessor. ON QUESTION OF DilrAGES. (June 27,
. The questions raised in respect to the amount of damages make it necessary for preservation of lega! rights in case of appeal to determine the value of the Rabboni immediately before the collision. Upon this matter of fact the evidence is not so plain as I would like; bUt, taking it altogether, I can reach no more satisfactory estimate than $3,600. It is true, as contended by respondents, that the judg· ment of competent experts, who have known and been familiar with the vessel, is more satisfactory than that of equally competent wit-
THE BARRONI.
nesses, who form tlleir estimates from verbal and data age, original cost, material used in construction, and the general history of the schooner. But one of the respondents' witnesses, who saw and examined the vessel after completion of repairs after the collision, valued her at $3,500. The surveyors valued the wreck at New Bedford at $80U. The bills of everything which entered into the construction and served to restore value amount to $2,984.71. The proctor for respondent." as I think, ril;htly contends tb.a.t the value of any vessel is not to be deemed enhanced in the exact amount of moneys expended in repairs. If it were, the two sums--surveyors' estimate of $800 for the wreck, and the $2,!l84.71 expended for restoration-would give us a value of $3,784.71. It is true that there may be, by reason of the substitution of new material for old, an increase in value to some extent. But on the whole, I, as before said, adjudge the value to have been $3,600. In addition to $2,\)84.71, that actually went into hull, chains, anchors, spars, sans, and rigging, are shown undisputed bills amounting to $711.57, viz.: New Dedford towboat··......···.....·........··......·.·..·...... $ 54 Carting cargo..................................................... 5 Surveyors. .....····......·............·.·....................·.·.. 18 Towage· ·. . · . · . · . . . · · . . . . . . · . . . . . . . . . . . . · . . · . . . . . . . . · . . . · . . . . . . . .· 320 l<umltnre lost............................... ..·..·......·.... ....· 17 Stores lost and injured·..·..............·.... '" .·. ..···. ... ... .·.· 31 Clothing .and charts.. . · . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . · · · . . . . . · · ·.· 41 Capt:tin's fares ..·.·······.... , ·. . . . · . . . . . . . . . . . . .. · . . . ·. . · . · . · . ·. · 2 RepliirIng· clock...··...·.·.·.. '" ...............·...·...·.·. '" ...· 1 [{.estowlhg cargo.. . . . · . . . . . · . . . . . · . . . . . . . . . . · . ·. . . . . . . . . · . ·· . . · . . . · 1 Discharglllg and pumping ·.·..·..·.···.·....···.·.···..·..····.·.· , 127 Carting and loading cargo. . . . · . . . . . . . . · · . . . . . .. ·.. · .. · ·· ·.. .. . .. · · · 92 00 00 00
00 00 06 60 3:>
Oi) 50 36
65
$711 57
These items are properly chargeable, unle-ss by reason of some breach of duty or gross lack of prudence the repairs were inexcusable. These bills, together with the $2,984.71, make an aggregate of $3,696.28, certainly not so in excess of the value I have placed on the vessel as to indicate such improvidence as amounts to a fault, working forfeiture of claim for restitution. The principal objection is made to the item of demurrage fm' days at $24 per day, amounting to $792. 'I'hat this number of days actually elapsed between the collision and the completion of repairs and reloading, and that the rate per day is reasonable, is not disputed; but it is claimed that ltn unnecessary number of days were consumed by want of diligence, and it is further urged that under the circumstances of the value of the Rabboni, and the sum it would cost to repail- her, no demurrage should as matter of law be allowed. I am pursuaded that some time was lost through the inactivity and inattention of the master and owners of the Rabboni, and for that time the respondents cannot be properly held. For this, a deduction of five days will be ample. The other objeetion I overrule. Then, adding $672 for demurrage to $3,696.28, we have $4,368.28 to be allowed. Interest is claimed on this allowance from Novembel' 24, 1888, the date when the bills were finally paid. In view lof the facts of this
952
FEDERAL .BEPOltTER,
voL 53.
case, I tlrlnk that this interest also should be allowed. The libelants were constantly urgent to bring the case to a and the claimants stretluously sought delay, in consequence of the absence of material witnesses, till at last the court gave a dnal allowance of time to procure the attendance or the depositions of those witnesses, and the case was heard without them. Intf'rest. on ·······..····...·.·.·...······················ ······· $4,368 28 From November 1888, to JUlie 24, 1891, Is 416 16 ;Amountlng to································· '· ··········· ·· ft.786 44
-For which, with costs, let a. decree be now entered.
THE Jh.BBONL THE NELLIIll Jll.RUMBALL. (Circult Court, D. Mal.ne. December 12, 1892.'
COLLI$ION-LIGHTB AND LOOKOUTS.
, In a coUlslon ease, where there Is a dispute about llghtsant! their bearIngs, the lack of a proper lookout or the absence of his test14iony hall a veryg,reat weight agaiJist the vessel deficient In this reSpect. A .lilChooner and a tarl,ientlne approaching each other at Dight nearly hea(J. ot;!, or on close parallel CO\irses, came into collision, thll.latter strikIng the fc>rmer. on the port bow. 'The schooner was salling. closehauled on tlle IltarbC>8,rd tack, wWle the llarkentine wasgolng free on the port tack.. , Theco.urt found, on. conflicting testimony, that the barkentine was to leeward of the schooner; that the schooner was allowed to fall oJr so as to contribute to the disaster; and that no sufllcleut explanation for so doing was glven;and also that the barkentine, havlng plenty of sea room, and with knowledge of the schooner's approach, failed to keep away, as she might have done. Held, that both vessel" were in .fault,. and the damages should be divided. Where there Is great contllct In the evidence as to the value of a vesse}, damaged by collision, 'he tlndlngof the district court as to her value will not be reversed by the circUIt court on appeal. The Parthian, 48 Fed.. Rep. 564, followed. . .
S; BAlm_BETWEEN SAILING VESSELS.
8.
SAME-EVIDENCE_ApPEAL.
"
SAME-D,lMAGES LIMITED TO VALUE OF' VESSEL
Damllge$ for Ipjuries to a vessel by colllsion should' not exceed her value. aDrl her net pending freight, (to be computed by tl!.e role given in the opinionS 'where this wlll fully indemnify her ownerS; The class of cases wherl:' nlore is allowed should be strictly limited.
G; SAME-INTEREST AS DAMAGES.
Where not more than the value .of the vessel and her net pendlng freight Is allowed as damages for coUlsion, interest should' be added to make complete restitution.
Appeals ·from the District Court of the United States for the District of Maine. In Admiralty. Libel by Thomas J. Stewart and others, owners of the schooner Rabboni,against O. P. Rumball and others, owners ot the barkentine Nellie E. Rumball, to recover damages for a collision. Gross lihel by the latter against the former forAhe same collision. The district CQurt found, that the barkentine was alone in fault, and