GREEN V. STEAMER HELEN.
917
of said steamer, at a high rate of speed, and ran into and so damaged her that she soon filled with water and sank; that at the time a proper light, as required by law, was brightly burning in her forward rigging, which could have been easily seen, with proper vigilance, by those navigating the steamer, in time to have avoided the collision. The claimant, by his answer, alleges that the steamer Heien, of was on her usual route from Baltimore to Crisfield, expecting to arrive at the railroad wharf at Crisfield on her schedule time of 5 o'clock; that the night was very dark, with occasional rain, and the wind blowing hard from the south· west; that the steamer was proceeeding cautiously, at a rate not more than sufficient for steerage, with two men on the lookout far forward in the bow, one all each side,' and with her.captain and pilot in the wheel-house; that when on her usual course, about the center of the chaunel, and about 200 yards from the railroad wharf for which she was steering, . the lights of two vessels were seen, one on her port and one on her starboard bow, but with ample room to pass between them; that when nearly abreast of the two lights the look·. outs and officers saw the reflection of the steamer's head-light on the masts of a vessel under the steamer's bow, not more than 75 to 100 feet ahead, which afterwards proved to be the libellant's schooner Roach; that the engines were at once reversed, but there was not time to avoid the collision, although the headway of the steamer was checked, so that. the blow was not violent; that the Roach was lying acrOBS the channel, and in the usual track. of the steamer, and had no light upon her, and was so heavily ladened that not more than a foot of her hull was above water, and the night was so very dark that it was impossible to have seen her sooner; that the schooner was anchored in a place forbidden by law, and although in a dangerous and forbidden place had no lookout or watch; that the steamer, knowing it was the constant habit and practice of the Roach and other vessels of her class to anchor in that part of the channel, although by law forbidden 80 to do, used every precaution to gua.rd against accident, bu.
918
FEDERAL REPORTER.
that no seamanship on her part could have prevented the collision. The first inquiry suggested is, was the schooner's light burning? It is proved that the lamp was a proper one,· and was put up in a proper place. It was found after the schooner Bank hanging in the fore rigging, and then had some oil in it and a good wick. There is testimony that it was seen during the early part of the night, and there is testimony that it was burning at the time of the collision, wHch I will briefly state: Abel Riley, a colored seaman on the schooner De Bow, anchored next the Roach, about 30 yards off up the stream, says he heard the collision and came up on deck; that none of the Roach's crew had then come up, and he saw her light; and that it was put out by the water when she sank. Francis Powell, a seaman on board of the Cuba, anchored about 40 yards down the stream from the Roach, came on deck and saw the steamer coming in, and watched her until she passed, and says that the Roach's light was burning. John Thomas Allen, a colored man, says he was on the railroad wharf waiting for the steamer, and saw the light from the wharf at about 4 o'clock. Thomas Conner says he saw it .from the shore about 3 o'clock. James C. Simonson, assistant postmaster, says he was waiting for the steamer and saw the light at 5 minutes before 4 o'clock from the railroad ticket office. George C. Carroll, on board the Sailor's Delight, says he saw the light between 4 and 5 o'clock. Edward Evans, on board the schooner De Bow, says he saw the collision and saw the light. William L. Sterling was on the ""harf and says he saw the collision and saw the light burning. On the other hand, there were on the steamer two very competent men (one of them the mate) stationed, one on each side of the bow, near the stem, acting as lookouts. They saw the lights on the two vessels, one on either side of the Roach, but, although intently watching, swear they could see none on her, and could see none before or after the collision.· The captain and pilot, although they saw the other ligbts, swear
919
they s.aw none on the Roach, and so the .man who was standing on the hurricane deck near the pilot house. The steamer was steered between the two lights, which, it appears, were the lights on the Cuba and the De Bow, because, as they say, it was a dark space in which there was no light. All these persons on the steamer testify that they saw the masts {)f the Roach as soon all revealed by the steamer's head-light, and all five of them testify that from the time the schooner'. masts were revealed until she sank they could see no light on her. Charles Simmons, the watchman on the railroad wharf, who was standing in an excellent position for observation, watching the steamer coming in, and swinging a light for her .guidance to the wharf, testifies that he saw the two lights on either side of the steamer and dark space between, into which she steered; that he then heard the crash of the collision, but .saw no light of any vessel there. As to all the libellant's witnesses who say they saw the light from the shore they were at considerable distances, varying from 500 to 1,000 feet. There were seyeral vessels lying not far their position had shifted with the wind, the darkness was such that they could see nothing but the lights, and they may easily have been mistaken as to which vessel the light was on. As to his other witnesses, their opportunities for see· ing the light were no better than those of the officers and men on the steamer. It is not necessary for me to discuss why I am disposed to give lUore or less weight to the statements of different witnesses who have testified with regard to the light; but I may say, generally, that it appears that there is such a state of feeling between the oystermen of Crisfield and those navigating the steamers running to that port, that the witnesses on .each side of this controversy, whether on board the vessels that came in collision or not, would seem to be open to pretty much the same liability to the influences of bias and prejudice. 'The captain of the Roach was not on board of her, and no one had been since Saturday night, except five of her colored erew, who were sound asleep until roused up by the collision· .of these two were examined, but hey did not say whether or
920
not they saw' the light when they came up on deck after the collision. In this conflict of testimony I find myself unable to arrive at a satisfactory determination of the question whether or not, at the time of the collision, the schooner's light was burning. When, however, a vessel in motion comes into collision with one at anchor, the presumption is that it was the fault of the vessel in motion, unless the anchored vessel is in an improper place; so that, in the inconclusive state of the testimony with regard to the light, it becomes of great importa.nce to determine where the schooner was at anchor, and whether she was lawfully there. The natural channel of the Little Annamessex river, on which is the town of Crisfield, was found insufficient· for the steamboats and other vessels attracted by the railroad which terminates there. With the aid of appropriations from the general government the channel was dredged out so that now there is, from Tangier sound to the railroad wharf at Crisfield, a channel about 800 feet wide and from 10 to 13 feet deep. The legislature of Maryland expressed its sense of the great importance of preventing this channel from being filled up and keeping it free from obstructions'to navigation by passing the act of 1867, c. 295, by which penalties are enacted against throwing into it any substances tending to fill up the river, and by which it is declared that it shall not be lawful to anchor any boat in said river between the railroad wharf at Crisfield and Tangier sound, in the track of any inward or outward bound vessels, and imposes a fine of not less than $20 nor more than $100 for every such offence; further declaring that if any boat, while anchored in the river contrary to said act, shall be collided with and damaged by any inward or outward-bound vessel, the owner thereof shall not be entitled to recover for any such loss, but said act and the violation thereof shall he a justification of such inward or c"1tward-bound vessel so colliding. This dredged channel is not of great length, and is in fact, more of the nature of a canal than a river. The danger of anchoring in it is ent, and must have seriously impressed the members of the
921
legislature, or they would hardly have thought necessary the extreme penalty which the act prescribes. Much of the testimony of the libellants was directed to establishing the location of the Roach in the river at the time of the collision. I am satisfied that the Roach, on Saturday evening, cast anchor near the south-east edge of the channel, about 600 feet from the railroad wharf, and from 400 to 500 feet from Rice's wharf. The wind was then northeast, which caused the vessel to tend parallel with the channel, and down the stream. The Roach drew eight feet of water, and the proof shows that 30 feet eastward of the edge of the channel from this point the depth of water does not exceed six and one-half feet. As the captain of the Roach was very familiar with the river, and the depth of water, it seems hardly credible that he would anchor his vessel to remain from Saturday night until Monday in a place where, if the wind went around to the northwest, she would have grounded. I am satisfied she was anchored somewhat to the north-west of the edge of the channel. The wind changed on Sunday night, and at the time of the collision was blowing hard from the south-east, which tended to carry the Roach directly across the channel. The channel there is about 425 feet wide. The Roach is 50 feet in length, and her cable was 120 feet, so that even if anchored on the very edge of the channel she must have been lying about 170 feet off from it, across the channel, which would put her very nearly in the center. It is urged that this was not the usual track of the steamer, and that she was in the habit of coming in by a course further to the westward j but it could not have been much to the westward, and it would, I think, be unreasonable to restrict the steamer, on a very dark night, to pursuing her course within any such nice limits as that would imply. I find, therefore, that the schooner was, in the language of the act of 1867, "anchored in the track of an inward-bound vessel, between Tangier sound and the railroad wharf," and that she was, therefore, unlawfully so anchored. With regard to the application of 'the act of 1867 of the
929
J'EDEIU,L REPORTER.
general assembly of Maryland to this case, two objections are made: First, that it is an unconstitutional attempt of thestate to interfere with the powers delegated by the constitution to congress to regulate commerce among the several states. Undoubtedly it has been held that "commerce" includes navigation and every species of commercial intercourse, (9 Wheaton, 1,) but it has also been held that, until congress does exercise the power given to it in such way as to manifest the intention to supersede or prevent state legislation, the states may, by law, prescribe such police regulations as are necessary to prevent the obstruction of its harbors and navigable waters, and the safety of vessels lying at anchoror moving thereon. These regulations have been held constitutional, and have been recognized by the admiralty as imposing duties on vessels which must be complied with. The General Clinch, 21 How. 184. In Cooley's Constitutional Limitations it is stated, as the result of the decisions, that "the state has the same power of regulating the speed and general conduct of ships and other vessels navigating its water highways, that it has to regulate the speed and conduct of persons and vehicles upon the ordinary highway, subject to the restriction that its regulations must not come in conflict with any regulations established by congress for foreign commerce or that between the states." I am of opinion that so much of the law as declares in what parts of the Annamessex river it shall not be lawful for vessels to anchor is a constitutional exerciSe of the rights of state legislation which the Roach was bound to observe. As to the penalties prescribed by that act for violation of its provisions, they cannot be enforced in the admiralty. This court must apply to the case the general maritime rules applicable to a collision between two vessels, one of which is anchored in an improper place, not regarding so much of the act as declares that the vessel unlawfully at anchor shall in entitled to recover for any loss resulting from a no case collision. The Gray Eagle, 9 Wall. 510; Williamson v. Em'· rett, 13 How. 109; The Continental, 14 Wall. 359. The second objection 'urged. to the act of 1867 is the con-
923
tention that it has been superseded by the acts of the generalassembly of Maryland of 1872, chapters 151 and 409. The first is an act to incorporate the town of Crisfield, and provides that the town commissioners may ascertain the depth and course of the channel of the harbor and river Annamessex, and fix buoys for facilitating the navigation thereof, and may cause the harbor tQ be cleansed and cleared ·of all obstructions, whether from vessels sunk or any other cause, and may require the wharves to be kept in repair. Chapter 409 is an act to define and preserve the harbor of 'Crisfield, and the Little Annamessex river in Somerset county t and provides that certain commissioners shall define and establish the lines of said river to which wharves and other improvements from either shore may be erected, and provides penalties for building in violation of such established !inest and for throwing into the harbor thus defined anything tending to fill up or obstruct the same. Neither of these acts, so far as I can see, either conflict with or supersede the provision of the act of 1867, that no boat shall anchor in the track of vessels between Tangier Bound and the railroad wharf at Crisfield. It is not shown that, under either of the two later acts, any attempt has been made to set apart any anchorage for vessels. There was some testimony to show that an officer of the corporation of Crisfield had notified vessels that they must not cast anchor in the basin between certain wharves, but there was no evidence to show that the place where the Roach was lying had ever been, by any color of authority, as a proper anchorage for vessels. I now come to consider whether there was any fault on the part of the steamer which contributed to cause the collision; for, although the Roach was anchored in an improper and dangerous place, the general maritime rule is that, whether the anchored vessel is in an improper place. or not, the vessel in motion must avoid her, if practicable, ltnd can only exculpate herself by showing that it was not in her power, by' adopting any practicable precaution, to have prevented the collision. The Clanta and The Clara, 23 Wall. 14.
924
PEDERAL
It is admitted in the answer that the steamer was about 500 feet from her wharf in the harbor of Crisfield; that it was known to those navigating her that it was the constant prac. tice of the Roach and other vessels of her class to anchor in that part of the channel; but it is alleged that she was proceeding cautiously and at a slow rate of speed. Let us see how the testimony supports this allegation as to the rate of speed. The captain of the steamer says that when they saw the masts of the Roach, 15 feet off, the steamer was going the usual speed which she maintains while coming up the river; that is to say, from six to seven miles an hour. Out on the bay, he says, they try to make 10 miles an hour. The engineer says that on the bay they were making 32 revolutions of the wheel a minute, and on the river, 28 revolutions, and that at the time he got the signal to reverse, just before the collision, they had not slowed from the speed they had been making on the river, and were going, he thinks, six. and a half miles an hour. The Helen is a side-wheel steamer, quickly stopped, and, even at her then rate of speed, was so far checked before striking the Roach that the direct effect of the blow was not great. I am satisfied that if she had been proceeding at a slower speed the damage must have been very trifling. In my judgment, under all the circumstances and considering the obstructions they knew she was likely to encounter, she was maintaining too great a speed. The night was very dark. She was steering for her wharf. They knew that the harbor is very contracted, and that small vessels would very likely be in her track, and yet she bad not slowed from the speed she had maintained the whole length of the river. The Gorsica, 9 Wall. 634. In the harbor of Baltimore an ordinance provides that no steamboat of 150 tons and upwards shall proceed at a greater speed than 10 revolutions of her wheel per minute, which serves to indicate the rate of speed which experience has shown to be safe in a narrow harbor in the day-time. It results, from these considerations, that both vessels wera in fault, and that the damages must be equally divided.
PERKINS
V.
SCHOONER HERCULES.
925
The steamer was not injured at all, sO that the only dam· age to be determed is the loss sustained by the owners of the schooner. The libellants' itemized account of loss amounts to $1,407. This exceeds, in some of the items, what, in my judgment, is proper to be allowed. The 900 bushels of oys· ters are charged at 30 cents a bushel, but the proof is, I think, that their value, as they lay in the vessel, did not ex· ceed 25 cents; this would result in a deduction of $45. Two months' detention of the schooner is charged at $600. Two months was, I think, an unnecessarily long time to be consumed in raising and repairing the schooner. It could have been accomplished in less than half the time, and I deduct $300 from that item. This reduces the account $345" leaving $1,062 as the damage. I will sign a decree against the stipulators in favor of the libellants for half that amount.
PERKINS and othe'rs
'l1.
SOHOONER HEROULES. V.
WARREN FOUNDRY & MAOIDNE COMPANY COLLISION -
SAME.
(District Oourt, D. Ma88achusetts. April 14, 1880.) , SAILING VESSEL AND STEAMER -IMMATERIAL OmSSIO:NS-
PRooF.-In the case of a collision between a sailing vessel and a steamer, the burden of proof is on the latter to show want of negligence, and the omission of the master of the schooner to warn the man at the wheel of the approach of the steamer, or to show a lighted torch, in accordance with section 4234 of the Hevised Statutes, is immaterial, when such omissions did not contribute to the collision. BURDEN OF
In Admiralty. NELSON, J. These are two libels; the first by the master, crew and owners of the schooner Charles S. Rogers, and the second by the owners of the cargo on board the schooner, against the steamer Hercules, for running into and sinking the schooner, off Cape Cod, three miles south-east of High. land Light, at half past two of the morning of May 31, 1879. The night was olear, with the wind fresh from Bouth Bouth-
926
east. The schooner was standing north north-west, on her port tack, bound for Boston, at a speed of nine knots. The steamer was steaming in a south-easterly direction, at a speed of eight knots, on a course substantially parallel with the course of the schooL.el'. The steamer struck the schooner on her starboard side, near the fore-rigging, causing her to sink immediately. The answer sets up three grounds of defence-Pirst, that no proper lookout was kept on board the schooner; second, that the schooner did not keep her course; and, third, that the schooner did not show a torch. Upon the first point, I think it was satisfactorily proved that the mate of the schooner ,was on the lookout from 2 o'clock until the time of the collision. This is sworn to by the mate himself, and by the man at the wheel, the only persons who were on deck at the time, and I see no reason to doubt the correctness of their testimony. Upon the second point I am of the opinion, the preponderance of the evidence is in lavor of the position of the libellants, that the schooner kept her course, and the acci· dent resulted from the negligence of those in charge of the steamer. The mate testifies that he first saw the 'lteamer's mast head-light when about three miles distant, onb point on his starboard bow, and when the steamer had approached to within one mile he then first saw her green light; that the green light continued in sight up to the very moment of the collision, and at no time did he see her red light. Both the mate and the man at the wheel swear that the schooner kept her course until she was struck by the steamer. If this is correct, then the course of the steamer was east of that of the l!lchooner. The evidence on the part of the steamer is that the schooner was first seen at n. distance of one mile; that the color of her light was red, and bore one and a half points OIl the steamer's .port bow; that the steamer Itt once ported her helm, and changed her course to due south, and as she approached the schooner nearer her helm was put hard to port, and the signal given to stop the engine; that the schoone1"s green light
PERKINS 11. SCHOONER HERCULBS.
first became visible just &S the steamer struck her, and the schooner was then headed N. W. by W., and the steamer S. by W. i W. If this account is to be taken as correct, the course of the steamer was west of that of the schooner, and the schooner must have changed her course several points to the westward during the interval of less than four minutes after she first saw the steamer's side-light until the collision. Two accounts of the same transaction could not well be wider apart than these. But there are one or two circumstances which tend to show that the steamer was east of the schooner. If this is so, it is very clear she did not see the schooner's red light, and should not haV'e ported her helm and ·attempted to pass to the west of the schooner, but should either have held her course, when she would probably have gone clear, or should have put her helm to starboard and passed to the eastward. First. The mate of the schooner who had charge of the deck, and was on the lookout, did not report the steamer to Dewey, the man at the wheel, and Dewey did not see the steamer or of her approach, until the collision took place. If she had come up on the port side of the schooner she would have been in plain sight of Dewey. The fact that he did not see her is strong proof that her approach was on the schooner's starboard bow, as his view in that direction was shut off by the schuoner',s Second. If the course of the schooner had been changed, as the claimants contend it was, her green light must have been seen from the steamer for some little time before the collision. Third. Noone of the witnesses on the steamer testifies to having seen any change of course by the schooner. Her sails were seen for some little distance, and if her course had been changed to the extent claimed some indications of it must have been visible from the steamer. No witness saw the <1isappearance of the red light, and the appearance of the green light. Such a change must have been noticeable, and would have been a prominent circumstance in the case if it had occurred. Fourth. Such a change of course by the schooner is altogether impossible. It could only have occurred through the
9.28
gross ignorance or wilful negligence of +hose in charge of her. and there is no evidence of either. It further appeared that the master did not report the approach of the steamer to the man at the wheel. But as it appeared his failure to do so did not result in any change in the schooner's course, or in any way contribute to the accident, the circumstance is of no importance. As to the last point of defence, it appears that the schooner did not show a lighted torch, as sailing vessels are required to do on the approach of a steam vessel during the night time. Rev. St. § 4234. But it is also clear that this did not contribute to the accident. The schooner's light was . seen from the steamer a mile off, as far, certainly, as a lighted torch on deck could have been seen, and in season to avoid the collision if proper precautions had been taken by those on board the steamer. Under the circumstances it is settled that the failure to show a torch by the sailing vessel does not excuse the steamer. The Leopard, 2 Low. 239. It is well settled, in cases like this, that the burden of proof is on the nteamer to show a a sufficient reason for not keeping out of the way of the Bl!'iling vessel. The Carroll, 8 Wall. 302; .The Java, 14 Blatch. 524. Upon all tho evidence I am of thJ opinion that the claimants have not sustained this burden, and that the collision in this case arose from the negligence of those in command of the steamer, in not making sufficient allowance for the high rate of speed, a mile in three minutes and thirty-two seconds, with which the two vessels were approaching each other. The entry in each case will be, interlocutory decree for libellants. END OF CASES IN VOL. 1
