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THE PREMIER. THE WILLAMETTE NELSON v. THE PREMIER and THE WILLAMETTE, (REESE et al., Interveners.)

(District Court, D. Washington, N. D.

February 5, 1894.)

1. Collision — Injuiues to Passengers — Liability.

A steamer guilty of culpable negligence contributing! to a collision is liable for resulting injuries to passengers on the other vessel, although it, also, may be guilty of fault contributing to the disaster.

2. Same — Fog—Excessive Speed.

A steamer which deviates from her proper course and continues at full speed in a fog, notwithstanding the known proximity of another vessel, as indicated by her fog horn, is guilty of fault when collision ensues.

8. Same — Death oe Passengers — Suit by Personal Representatives — Admiralty Jurisdiction.

The personal representatives of passengers killed in a collision can maintain a suit in admiralty in a federal court against the vessel in fault, when the local law gives them a right of action, and makes the damages a lien on the vessel, as in Washington by 1 Hill’s Code, § 1678, and 2 Hill’s Code, §§ 138, 148.

In Admiralty. Suit in rem to recover damages for personal injuries to passengers, resulting from a collision of the steam collier Willamette with the passenger steamer Premier. Findings and decree for libelants.

John H. Elder and A. R. Titlow, for libelant.

A. H. Garretson, John H. Elder, A. R. Titlow, Crowley & Sullivan, Stratton, Lewis & Cilman, and Ben Sheeks, for intervening libel-ants.

A. F. Burleigh, for claimant.

*798HARFORD, District Judge.

This is a suit in rem by passengers who were injured, and personal representatives and heirs of passengers who were killed, by a collision between the passenger steamer Premier and the steam collier Willamette on Admiralty inlet, about midway between Marrowstone point and Bush point. The Premier is a steel propeller, and was, at the. time of the collision, plying as a regular passenger steamer on the route from Tacoma to Whatcom, via Seattle, Port Townsend, and Anacortes. The Willamette is an iron propeller, built for the coal trade, and was, at the time of the collision, bound from Seattle to San Francisco with a cargo of about 2,700 tons, of coal.

The collision occurred at 2:05 P. M., October 8, 1892. Admiralty inlet is wide. ZESTo other vessels or obstructions impeded either of the colliding vessels. The sea was smooth. The machinery of each vessel worked well, and both Avere in all respects properly equipped and easily controlled. And, although fog hung over the place and eiweloped both vessels at the time of the oceui’rence, the collision could not possibly have happened if due care, and the rules prescribed by law for tlae prevention of collisions, had been observed by the commanders of both vessels. The Premier has not been arrested or brought within the jurisdiction of the court. I shall therefore, in this decision, refrain from expressing any opinion upon the question as to whether she Avas in fault. If the collision was caused by culpable negligence on the part of Willamette, she is liable for resulting injuries to passengers of the Premier, notwithstanding any fault on the part of the latter which may have been a contributing cause of the same injuries. The Atlas, 93 U. S. 302.

From the testimony of the Willamette’s officers, I find that, she left Seattle at 10:50 A. M. in a thick fog. When off West point she was overtaken and passed by the passenger steamer City of Kingston, bound from Seattle to Port Townsend. She passed Point-no-Point at 1:10 P. M., and from that time until the moment of the collision her engines Avere working full speed, or nearly so. I do not accept as true the statements of her officers as to the course of the Willamette from Point-no-Point to the place of the collision. I find, according to the preponderance of all the evidence, that the Willamette took a course from Point-no-Point Avhich brought her very near to Bush point, on the east side of the inlet. A few minutes before the collision she was actually seen by person's residing there. The Premier was then around Marrowstone point, and had passed the Kingston, and was heading S. E. | E., which was her proper course. Being in the fog, she was sounding one blast of her whistle at frequent intervals, and said signals were heard on board of the Willamette, and also by people on Bush point. .The Willamette, instead of pursuing her proper course, keeping on the east side of the inlet, deviated to the westward, and took a course aimed with fatal accuracy toward the approaching Premier. The master of the Willamette, in his testimony, swears that when he heard the Premier’s whistle he *799mistook her for the City of Kingston, and it is altogether probable That he changed the course1 of the Willamette with the intention of following in the Kingston's wake*, and that, on account of his stupidity or perversity he failed to discover that the vessel whose notes of warning were constantly sounding was approaching, instead of being overtaken. It is proven by the testimony of the assistant engineer in charge of the Willamette’s engine room at, the time of the occurrence that the first and only order occasioned by the meeting was, "Astern full speed,” and this he has recorded as being given at 2:05, — the very moment, of the collision. The Willamette rammed the Premier at an angle of about 45 degrees on her port side, just abaft the' foremast., with such force* as to cut, into her hull nearly or quite to the latter’s keei; the* Willamette’s bow being so firmly wedged into the: strueture of the* Premier as to render tier unable, by lie*r own eilbrts, to pull away. After towing the Premier across the inlet to the be*ae-.h ne*ar Bush point, anel making her fast to the shore:, her repe*ate:d effort,s to hack away and separate from the Premier resulted! in parting a hawse*r, and still the two vessels remained unit eel, until, with the assistance e>f a tug, the Willamette was finally liberated, and the: •Premie*!- sunk. The Willamette was in fault for ele* via ling from he*r proper course, and for e-emtinuing at a e!ange*rous rate: of spe:ed, when the* near proximity of anertheu* vessel was in fact. kne>wn to her offi<:e*rs, instead of stopping until the positiem and course of the other ve*sse*l had bee*n made out, and proper signals for passing had been given and nnde:rstood by both vessels, as the: law prescribes.

As the: direct result of this casualty, John E. Moe:, who is represented in this suit: by Philip L. Beese, as administrator of the estate of saiei Moe; Frank C. Wynkoop; Wr. A. Bie-hardsou, who is represented in this suit by Ms widow, Ida F. Bichardson; and Joseph Ban kin, — were: killed, and Jacob Nelson, Emma B. Miller. D. J. Wynkoop, E. W. Vest, and Thomas Foran suffered personal injuries; all of saiei ,elee:eased and injured persems being passengers on board the Premier.

The statutes of this state provide as fellows:

“When the: death of a, person is causee! hy the wrongful act or ne'glect of another, his lioirs, or personal representatives may maintain an action for damages against the pen-sons cansina- the death. * * *” 2 Hill’s Code, § 138.

“A father, or in case of ids death or desertion of liis family the mother, may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or de*atli of ids ward.” Id. § 139.

"Xo action for a personal injury to any pen-son occasioning Ids de*atli shall abate*, nor shall such right of acrion determine by reason of sucli eleatli if he have a wife or child living, but suele action may be prosee-uiod, or commenced anel prosecuted, in favor of such wife, or in favor of the wife* anel children, or if no wife, in favor of such child or children.” Id. § 148.

"All steamers, vessels, and boats, their tae:kle, appared, and furniture, are liable: « * * 6. For injuries committed by them to pen-sons or property within tlds state, or while transporting such pea-sons or properly to or from this state. Demanels for these several causes constitute lions upon all steamboats, vessels, anel boats, and their tackle, apparel, and furniture, and have *800priority in their order herein enumerated, and have preference over all other demands; but such liens only continue in force for the period of three years from the time the cause of action accrued.” 1 Hill’s Code, § 1678.

Upon the authority; of the decision of Judge Deady, in the case of The Oregon, 45 Fed. 62, and the apparent approval thereof by the supreme court of the United States in the case of The Corsair, 145 U. S. 335, 12 Sup. Ct. 949, I hold that the rights conferred by these statutes are available to the representatives of the deceased passengers above named in this suit. The injuries to the passengers who are parties to this suit are all of a serious character, but the evidence does not convince me that the disabilities existing at the time of taking the proofs are certain to be permanent. I believe that all will, as soon as their claims for damages are settled, regain health so far as to be able to pursue their former avocations. Therefore, in awarding them damages, I have not allowed for permanent disabilities. I award damages to the libelant and the several interveners, as follows: To the libelant, Jacob Nelson, for personal injuries sustained by himself, $2,500; to the intervener Philip L. Reese, for the death of John E. Moe, $5,000; to the intervener Emma B. Miller, for the injuries sustained by herself, $2,500; to the interveners D. J. Wynkoop and Ella E. Wynkoop,* for the death of their son, Frank C. Wynkoop, $3,500; for the injuries sustained by D. J. Wynkoop, $2,500; for the injuries sustained by Ella E. Wynkoop, $1,000; for loss and injury to baggage and property, $300; to the intervener E. W. Vest, for the injuries sustained by him, $700; to the intervener Thomas Foran, for the injuries sustained by him, $3,500; to the intervener John Rankin, for the death of his son Joseph Rankin, $3,500; and to the intervener Ida F. Richardson, for the death of her husband, W. N. Richardson, $5,000.

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