THE JOHNS .lI01'XINS.
185
THE
J ORNS HOPKINs.
(Circuie Cowrt, D. MassachuseUs. August 14,1882.) 1. COLLISION-BETWEEN STEAMER AND SAIL VEBSEL.
In case of a fog, and in a place much frequented by vessels, it is as mucb the duty of a sail vessel to go at a moderate rate of speed as it is the duty of a steamer. SAME-LooKOUT.
In a case where, besides a man forward, stationed as a lookout, there weretwo persons on watch in the pilot-house of a large ocean steamer,the lookout was sufficient. 3. SAME-ExCESSIVE SPEED IN FOG.
Where a sail vessel in a fog was going at twice the speed ,of an approaching steamer, and neglected to show a torch-light, and tqe steamer was going as slow as she could go against a head-wind and a head-sea, and as soon as the steamer saw the light of the sail vessel orders were given to stop and reverse the engine, which ensueB, from the sail veBsel attempting she is not in fault for 8 to cross the course of the steamer.
In Admiralty. John C. Dodges Sons, for Morse cf; Stone, for claimants.
Before HARLAN and LOWELL, JJ. LOWELL, C. J. At about 9 o'clock on the night of February 26, 1881, the bark Fury came in collision with the steamer Johns Hopkins, off the coast of Cape Cod, near Chatham. A dense fog had shut in some half hour before. The bark was sailing with the wind nearly aft, and making eight or nine knots through the water, and had besides, as I understand the evidence, So current of about two knots in her favor. Her lookout reported So light to the mate, who was the officer of the deck, and was standing on the forward part of the quarter-deck. The mate looked and saw a green light, and gave the. word "hard a-starboard," in order, as he says, to keep green light to green light. The helmsman began to put the wheel to starboard, when the pilot, who was near the wheel, and did not see the light, and thought that they were meeting a sailing ship, and that the mate had given the order to port, ran to the wheel and had it put hard to port, where it was kept until some time after the collision. , The bark, under her port helm, crossed the bows of the steamer, and received a glancing blow on her port quarter, near the stern, which total claim caused a damage estimated in the libel at $3,000. i:J $3,500. The bark did not display So torch. The mate says there
FEDERAL REPORTER.
was not time to light one. The steamer had been slowed to one bell,. the wind and sea and when the fog came on, and was going current. Her master, whose evidence appears to have been given in a very fair and candid spirit, says: "Well, probably it might have been going three and one-half miles an hour. She was going as slow as she could go. She was under one bell, with a head-sea and a headwind. " The engineer fully confirms this statement. There was a competent lookout on the top-gallant forecastle. Her master and second officer were in the pilot-house keeping a careful lookout, each leaning from a window. A light was reported nearly ahead, and all the witnesses of the steamer declare that it was a white light. We cannot say, upon the evidence, that there was a white light displayed by the bark; possibly her green light may have shown white in the fog. However, nothing came of this mistake. Orders were immediately given to s.top' and reverse the engine, and they were obeyed. Whether the headway of the steamer was lost before the collision, it is not easy to say. All her witnesses think that it was. The master, who is the least positive, as he is also the most reliable,. says: ·"1 suppose we were about at a standstill." The district court pronounced against the libelap.ts, finding that they were going too fast. The evidenCe. below is reported to us with the addition of a deposition by the steamer's engineer, which shows that the engine was making 80 revolutions, just one-half of the usual number·. Thereupon very able arguments have been addressed to us to prove what rate of speed would be obtained by 30 revolutions. This must be a matter of estimate, after all, and we do not consider that mathematics are' more accurate, uuder the circumstances disclosed, than observation, because the amount of loss by the pitching of the vessel, and by the effect of the head-wind, sea, and current, are not ascertained with any approach to definiteness. We think the master's statement as near the truth as we can get. The broad facts are that a sailing vessel, going at least twice as fast as a .steamer, showing no torch, and crossing the bows of the steamer, undertakes to say that the speed of the latter was not moderate. There seems to be some misunderstanding here as to the relative duties of the two classes of vessels. Before the law con-. eerning this subject took the form of statutory rules, speed was always a question of due care in navigation, and although a sailing vessel could not stop and reverse after sighting ano,ther ship, she
THE· JOHNS
,187
could lessen her speed when she encountered a fog;' and, in a. place near the coast, much frequented by vessels, it washer duty to do so. Bailing vessels were condemned for going too fast in the following cases: The Juliet Erskine, 6 Notes Cas, Adm. & Ecc. 633; The Voirgil, 2 Wm. Rob. 201; The Pepperell, Swab. 12. Lowndes, in his treatise on the Admiralty Law of Collisions, says, at page 73, after speaking of steamers: "The same principles are, of course, applicable to sailing vessels," He cites two of the foregoing cases. and The Girolamo. 3 Hagg. 169. The sailing rules. which were identical in the chief maritime countries, required steam-ships to go at a moderate speed in a fog, and said nothing about sailing vessels, which may have led their owners to suppose that they were relieved from" this obligation.Bnt this law was not intended to change the rules of seamanship, excepting where the statute differed from or added to those rules; and we find by the dicta in certain cases in the supreme court that in places like this channel off Cape Cod sailing ships should not carry a "press of sail," which means that they shall go at a moderate speed; for the amount of sail which would be a "press" must depend upon the amount of wind, and the consequent rate of progress. See The Morning Light, 2 Wall. 550; The Oolorado, 91 U. S. 962. The revised sailing rules of 1879, in England, provide, (article 13:) "Every ship, whether a sailing ship or a steam-ship, shall. in a fog, mist, or falling snow, go at a moderate speed." 4 Prob. Div.247. This article puts sailing ships on the same footing as steam-ships, on the open ocean as well as in channels and frequented places. We hold that a steamer is bound, in all places, to go at moderate speed in a fog, and that a sailing vessel is bound to do so in such a place as this. The neglect to show a tOl'ch, and the act of crossing the bows of the steamer, are excused by the libelants on the ground of want of time, and the suddenness of the emergency. The lights of the steam-ship were much larger and higher than those of the bark, and could be seen sooner {rom the bark than her lights could be seen from the steamer. We are not sure that there was not time to show a torch, as required by Rev. St. § 4234. There is some reason to believe that the lookout did not report the light as a mast-head light, as he should have done. and that the mate was not at first aware that the vessel was a steamer. There was time for the bark to cross the bows of the steamer, and it can hardly be that this could take less time than the simple lighting of a torch, if one were ready. Supposing, however, that the sailing vessel cannot be blamed, it is
188
FEDERAL lUllPORTEB.
necessary, in order to a recovery, that some fault should be attached to the steamer. Two faults are found with her by the libelants: 1. That there was only one lookout forward. Cases are cited in which it is said to be usual for large ocean steamers to have two lookouts. Chamberlain v. Wa1'd, 21 How. 548; The Colorado, 91 U. S. 692. But these declarations constitute no part of the matter in judgment in those cases. The maritime law has not declared that one mati forward may not be enough; and in this case, where, besides such a man, there were two persons on watch in the pilot-house, we hold that the lookout was sufficient. .2. The ,rate of speed. The phrase so often quoted from the decision in The Batavia, 9 Moore,P. C. 286, that the rate of speed in every case should be so moderate as to enable a steamer to do the law requires her to do, cannot be taken literally. A fog may be so dense that a collision will take place when neither party is in fault. Some persons have understood that in such a state of the weather the steamer must lie to or anchor; and it was so argued in this case; and such is the necessary result of a literal interpretation of the dicta in some cases. It may be that a ship of any kind will be responsible for moving from one dock to another, or for beginning a voyage, in a dense fog, (see The Bortlssia, Swab. 94; The Girolamo, 3 Hagg. 169;) and so if the vessel had. arrived at a usual anchorage and persisted in going further; but th e fog in this case came on after the bark had left Vineyard Haven, and after the steamer bad left Boston, and it is as certain that they were not required to lie to or anchor, as that "a moderate speed" does not mean no speed at all. The Colorado, 1 Brown, Adm. 393,(91 U. S. 692,) is relied on by the libelants. There the sailing vessel had diminished her speed when the weather became thick from five or six knots to four; the steamer had but three men on deck, and the lookout was obliged to run to the wheel, though after he had reported the light; the speed of the propeller is found by Mr. Justice Clifford to have been five or six knots. A careful study of that case has shown us that the sail· ing vessel had taken every precaution possible, and that the propeller was condemned for the whole 6f her conduct taken together, rather than for any definite single fault. Granting that a steamer should go as slowly as is reasonably possible, we think that this steamer did not exceed that rate. We are of opinion that the collision was caused by the acts and neglects of those who were navigating the bark, and that if they were excusable, which we do not think they were, the collision was without fault by
NOTES OF DECISIONS.
159
either party. This is the judgment of Mr. Justice Harlan and the circuit judge, and is to be entered as of a time before Mr. Justice Gray was assigned to this circuit. Decree affirmed, with
Receiver-Appointment-Railroad :Mortga.ge. HAMMOOK '0. FARMERS' LoAN 8f, T. Co., U. S. Sup. Ct., Oct. Term, 1881. Appeal from the circuit court of tlle united States for the southern district of Illinois. The decision of the U"nited States supreme court was rendered on April 24, 1882. Mr. Justice Harlan delivered the. opinion of the court affirming the decree appealed from. In Illinois, a judge has no authority to appoint a receiver of a railroad corporation in vacation; such autbority is to be exercised by the court while in session. Punctuation is no part of a statute. Courts. in construing statutes or deeds, should read them with such stops as will. give effect to the whole. We are not prepared to hold that the power of a judge in vacation to exercise the important judicial function of appointing a receiver of a corporation,. charged with public functions, was conferred by the introduction of a comma in the revised statute of a state, where the established doctrine is that no judicial functions can be exercised by a judge in vacation except where expressly or especially authorizedhy statutes. Where the circuit court of the United States had lawfully acquired possession of property prior to any action in reference to it by the state court, the. former had the right to retain possession, for all the purposes of the suit, for foreclosure of the mortgage thereon. The provisions of the statutes of Illinois giving the right to redeem as well lands or tenements sold under execution, as mortgaged lands sold under decrees of courts of equity, has no application to the real estate of a railroaq, corporation which, with its franchises and personal property, is mortgaged as an entirety, to secure the payment of money borrowed for railroadpul'poses. Its property, real and personal, and its franchises, should' be Bold as an entirety, and without right of redemption in the mortgageor, in judgment creditors, as to the real estate. A railroad mortgage security, so far as the personalty of the corporation is concerned,. is not embraced in the statutes of minois relating to chattel mortgages. J. K. Edsall, for appellants. R. E. Williams, for appellee. Cases cited in the opinion: Taylor v. Carryl, 20 How. 583; Freeman v. Howe. 24 How. 450; Hagan v. Lucas, 10 Pet. 400; Peck v. Jenness, 7 How. 612; Blair v. Reading, 99 Ill. 609; Devine v. People, 100 Ill. 290; Keith v. Kellogg, 97 m. 147; Doe v. Martin, 4 Term Rep. 65; Price v. Price, 10 Ohio St. 316; Cushing v.'Worrick, 9 Gray, 385; Gyger's Estate, 65 Pa. St. 311; Hamilton v. The R. B. Hamilton, 16 Ohio St. 432; Brine v. Insurance Co. 96 U. S. 627; Gue v. Tidewater Can. Co. 24 How. 262.