"THE llAVERTOlf. TlIEHAVERTON. 1 .DEVERE and others
663
v.
THE HAVERTON.
(Oircuit CoUrt, E. D.LouiBiana. January 28,1887.) 1.
In a case of collislon'on the high seas, between a steam-ship and a pilot-boat, the steam-ship was held to be In fault for not having and maintaining a proper lOOkout, and because her officer in charge absented himself so long a time from his proper position on the main-bridge. during which the collision occurred;and the pilot-boat was held to be in fault for not a white light at her mast-head, ,visible all around the horizon, and in not eXhibiting a flare-up light or I\t short intervals while she was cruising, and in not taking any precautIOns by way of unlashing her helm, and calling the watch :below, When it became 'apparent that the collision was imminent.-all of 'Which faults of both vessels contributed to the collision, and therefore the , damages were divided.
COLLISION-MuTUAL FAULT-DIVISION OF DAMAGES.
I. Sut:E-PlLOT-BoATS. When. a 'Pilot-boat is crQising. looking, or waiting for ships pilots, although hundreds of miles off the port to which it belongs, it is a "pllot-ves8el, c;lDgagedon hentation ,on pilotage duty," within the meaning of article 9 oftheact of congress approved March 3,1885, (chapter 854, 23 St. at Large.)
Admiratty Appeal. John D. Rauae and William Grant, for libelant. Jarne8 McOonnell, for .cla.imants. I ' ·
PARDEE, J. This cause came on to be heard on the transcript of rec· ord, ,and was argued, whereupon the court finds the following as the facts in the case: (l),A,bout half past 2 o'clock on the morning of the sixth of November, 1885, the steam-ship Haverton collided with and sunk the schooner or pilotboatMaryand Catharine at a point oft the coast of New Jersey, about 22 nautical ,miles easterly from Absecom and about 75 miles southerly from Sandy Hook. The night was dark. but clear. so tb'at tbere was no difflculty in seeing sbips'ligbts properly exposed. No ligbt-houses nor coast lights were in sight. The wind was ligbt. and from the S. S. W. The sea was smooth. except there was considerable swell from tbe south-west. (2) Tbe schooner Mary and Catharine was a. New York pilot-boat of 38.64 tons burden, about 64 feet long, and for some time prior to and at the time ot the said collision sbe was cruising in above viciDity, hove to on the starboard tack. under double reefed main and foresail bonnets oft the jib and stay-sail, the stay-sail sheet hauled to windward. and the belm lashed amid-ships, under a headway of about two knots an bour, leeway not appearing. on a course S. byE. i E. (3) The Mary and Catharine had on board four New York pilots, a crew of one seaman. one boat-keeper, one cook, and two young men rated as boys. The watch on deck was supposed to be made up of one pilot (Stoffreiden) and one bOY, (Peterson,) but, as a matter of fact. Stoftreidell was below, lying clown, and Peterson was keeping the watch.- Peterson was 21 years old. and ,had been 'following the sea for nine years. All the Ief:\t of the people aboard :were below, and asleep. '
lReported by Joseph P.Hornor, Esq., ofthe New Orleans
564
FEDERAl.
(4) The Mary and Catharine, before and at the time of the collision, Carried one green and one red side light, set and burning. Her mast head-light was aloft, but in a cage, so that it made no show of light but was ready to be used. (5) From 15 to 20 minutes before the colllsion Peterson dlscovered the green light of the steam-ship Haverton on the port and lee quarter, and he thereupon called the pilot on watch from below, who came on deck, and with the glass observed the green light, pronouncing the coming vessel to be a steamer; and soon after observing a white mast-head light apparently ing h6isted up. . (6) Upon the continued approach of the steamer, Stoffreiden, about 10minutes prior to the collision, took the binnacle light, and showed it inthedirection of the.steamer. This binnacle light was in a square lantern, with glass on three sides, one a bull's eye, and tin on the fOl1l'th, which was the door. not The bull's oye was about three inches in diameter. The attracting the steamer's attention, Stoffreiden had a torch lighte!!, and shown towards the steamer by SWinging around. and this was kept up .from about four minutes prior to and until almost the moment of collision, when the torch was put out, and the steam-ship ineffectually hailed. (7) The course of the Mary ,and Catharine was not changed, nor was the conditi<in of her sails and helm altered, after the discovery of the steam-Ship, altered or and pri9r, to the collision, nor was the course of the during that time. (8) The steam-ship struck the schooner with her starboard bow, just abaftthe schooner's fore rigging, with such force asto knock her around oil the ?ther tack, and doing such injury tbat she sunk very soon, giving barely time to get out her boats for her men to escape; and as it was, for some unexplained reason, one boy was neither awakened nor called, but was left to go down with the schooner. (9) The boats from the schooner puUed in the direction the steamship had taken, but, failing to find 'her, made towards the land until next morning, when they were picked up by another pilot-boat, and carried to New York. (10) 'rhe pilot-boat Mary and Catharine, a few days previous, had left New York on It business cruise, and at the time of collision was under weigh on a cruise in pursuit of employment as a pilot-boat. The New York pilot grounds extend within It radius of 16 miles off Sandy Hook. The only station that New York pilot-boats appear to have is off Gedney's channel, to take pilots off outward bound vessels. New York pilot-boats cruise for business hundreds of miles off Sandy Hook. (11) The propeller Haverton was a British steam-ship, built of iron of 2,500 tons, was over 300 feet long, and 40 feet in beam. She was thoroughly furnished with all appliances known and necessary for successful naVigation, and fitted up with necessary matlhinery, inclUding an electric telegraph from the and with steam steering and reversing appamain bridge to the ratus, and was well oflicered, manned, and equipped. (12)· The Haverton left the port of New York at 5 P. M. of the fifth day of November, 1885, in ballast, bound on a voyage to New Orleans. After passing Sandy Hook, she took her course by compass S. by W .. which was the proper course for the voyage, and continued such course, without interruption or deviation, until 2:30 A. M. of the morning of the sixth of November. when the collision aforesaid occurred, up to which time her rate of speed was "knots per hour. . (IS.) The Haverton was provided with two observation and lookout bridges, both elevated above the deck, and running aCl"OSS the ship. ,The rear and main bridge was over the deck engine-house, and was over and just forward of the wheel-house, and was the general and Pl'0Pllf station of the officer 01
565
the deck. The forward one was 36 feet abaft the stern, was 7 feet above the main deck, and was 5 feet in width, with a railing around, except at the steps wbich led down forward, and this was the station of the lookout on watch. (14) The Haverton carried the regulation green and red side lights, and a white mast-head light, swung by halliards to and under the fore-top gallant Iltay, about 40 feet above the deck, and just over the stern railing of the forward lookout bridge. The halliardshoisting this light, and the guys staying it in place, all run to said lookout bridge. The light itself was in a lantern, with glass sides, and the whole in a cage properly screened, and weighing 42 pounds. (15) At the time of and just prior to the collision aforesaid, the second ofilcer of the HavertoH was on watch as officer ot-the deck, and a lookout was stationed on the lookout bridge. These two, with the man at the wheeland two sailors, one of whom was working his passage out to New Orleans, constitutoo all of the watch ondeck. One of these last-mentioned sailors had been at tAe Wheel up to 2 o'clock, ,but had been relieved; and was charged with no special duty. The other one was aiding in looking after the lights. The captain was in his room;asleep. . (16) Just prior to the collision, and to the time that the Haverton was discovered by the. watch on the. pilot-boat, the mast-headlight of the Haverton I was reported out of order, smoking, and the glass dim. Thereupon the second officer1eft the main bridge, aDd went forward to examine the light. He ordered it dQwn, and cleaned, and thereupon .the light was lowered to the deck. ,Sowe Wlli:ite was procured from below, the. glass cleaned, and then the light was ordered hoisted back. All the watch observed these proceedings with the light. To hoist the lamp back, at least two men were necessary,one for the halliards, and one to attend the guys; whereupon the second officer directed the lookout to attend to the guys, saying he himself would keep the lookout. Under this direction, the light was hoisted, the lookout . ing to the guys, although not leaving the bridge, but the halliards fouled when the light was nearly to its place, by which time the collision occurred. (17) Wldle the said halliards were being cleared, the second officer of the Haverton discovered the Msryand Catharine by the exhibition of her flare-up light right under the bluff of the bow of the Haverton. He 'immediately went back to his station on the main bridge. and telegraphed to the engineer to reverse the engines, and go full speed astern, which order was obeyed. In the meantime tI,e schooner had been struck. and passed astern, out of sight, answering no hails, though several were made from the steamer. (18) While the said mast-head light was being looked after, the seaman of the watch, who had been relieved from the wheel, and charged with no particular duty, stood on the starboard siLie of the ·,eck. forward of the lookout bridge, near the rail, and was more or less looking out forward .. He saw no lights nor schooner until the schooner was close the bow of the Haverton. but he d.i4 see more or less of the operation of lowering, cleaning, and hoisting the mast-head light on the Haverton.· (19) At the time, and just prior to the collision, there was no person on the' Haverton solely charged with the duty of keeping a vigilant lookout, norany person who kept a continuous vigilant lookout. The regular lookout, prior to his being temporarily relieved by the officer of the deck, had been paying attention to the operation of regulating the mast-head light; and, when the officer of .tile deck relieved him, that officllr wl(s charged with his deck duties. arid did still keep an eye to the execution of his orders iIi. regard to the mast-head l i g h t . ' . .(20) As soon as the engines of the Haverton were reversed, the captain, ar:oJlsedthereby. came on deck, and made ineffectual search with ,glasses for then the helII\ o.f the stearn-ship PHt hard a-port, and
566
FEDERAL 'REPORTER.
the ship steamed slowly round in a half circle, looking for the schooner and crew. This until the steam-ship's :h6ad' came around to thenorth,when the helm was put hard a-starboard, until.the ship's head came around to S. S. E. Still, seeing and hearing nothing of the schooner or crew, tbe captain concluded that no damage had been done, and resumed bis course. Dythe collision the Haverton was not damaged so much as by a discernible mark. (21) The Haverton was infanlt in Dot having and maintaining a Vigilant lookout, and because her officer of the deck absented himself for so long a time prior to theeolIision from the main bridge, where he could have exercised Vigilance, and could have communicated instantly with the engineer and the helmsman; (22) 'fhe schooner Mary and ,catharine was in fault in not carrying a white light at her mast-head, visible aU round the horizon, and in not exhibiting a tIare-up light artIare-up lights at short 'intervals while she was crUising as bereinbefore described; and she was also in fault in not taking any precautions, by way of unlashing her helm, and calling the watch below, when it became apparent, as it did, that she was not observed by the Haverton, and that a collision was imminent. And ,all of the said faults of both vessels contributed to the collision, because it cannot be said, under the evidence, that, in the absence of anyone of tbem,the collisidn would not have been avoided. (23) The value of tbe schooner Mary'and Cathariue, at the time she was lost, was $5,025, 'and the property and personaYeffect,s at the time on board of her, all of which were a total loss, were of tJleval;ue of $1,032. The libelants were the owners of said schooner, and are authorized to sue for and recover forsaid personal effects. And the court' finds as conclusions of law: (1) That both vessels were in fault"as described in the twentieth and twenty-first findings of fact aforesaid, and the damages resulting from the afore described collision should be diVided. .are entitled to a decree for the one-half the value of the (2) The and for one-half of the value of the property and effects thereon, said as found in the twenty-second tindingof facts, to-wit, for the sum of $3,028.50. (3) The libelants should recover from. the claimant the costs of the district court, and should be condemned to pay the costso£ this court. In explanation of the foregoing findings, it is proper to say that I have included some apparently irrelevant details attending the collision afore:. said, because proctors requested fip,dings on those points, and seemed to lay stress upon them. That itwas the Havertqn that collided with and sunk the pilot-boat I can have no doubt, under the circumstances of the case. The time, the place, the character of the schooner, the matter of lights, and many other incidents appearing in the evidence are conclubell. singular fact Hat the same sive to my mind. It would, precise time, in the same neighborhood, there were two New York pilotboats cruising without lights and adequate watches, in a happy-go-lucky manner, and each at the same ,time should collide with a large steamship, having defective lights, and no vigilant lookout, and with the result in each case, a ghostly schooner under the bow, immediately disappearing in the darkness, and apparently from the face of the waters., I have made DO point on the Haverton's defective mast-head light as, a fault, because the presence or absEllJ.ce .of the mast-head light did not affect the ability of the watch on the pilot-boat to discover the Haverton in season. The said light was certainly the center of observation on the
567
Haverton j and naturally so. The unusual operation of taking it d(mn, and cleaning it, would naturally relieve the tedium. and routine of the mid-watch, when no one was anticipating danger. The careless shape in which the pilots put their boat, and went below to sleep,showshow reckless of danger such men become. In the way of ships, sails set, helm lashed, no lights but side lights, which do not show astern, and a boy (in their own estimation) on watchl The whole -case leaves an impression on my mind that the witnesses are mistaken as to the time elapsing between the discovery oithe Haverton and the collision, and between the collision and the sinking of the pilot-boat. The Haverton's rate of speed was lOt knots, and that of the pilot-boat, in the same general direction, 2 knots; so that, if Peterson the Haverton 20 minutes before she came up, she must have been nearly three miles off, and Stoffreiden, coming at once on deck, could hardly have seen at thll.t time and distance a point or two between. her masts. And it seems to me that in that time good seamen, as all pilots ought to be, would have called some of the watch below, and niade some preparations for handling the schooner in an emergency. And, if there was a peribd of 15 minutes after the collision before the schooner sunk it would seem that there would have been time to call all bands from below; and have made some signals to the Haverton from the stock on board the schooner. And inthatlEmgth of time the Haverton should not have lost all sight of the schooner, if she had been floating. . If we take it that Peterson did not discover the Haverton until she ;was- near enough for him to plainly see her green light, and that Stoffreiden was asleep when called, and came hastily on deck, and that the collision. im.niediately followed, Sinking the schooner within two or. three minutes, all the surroundings of the case are harmonized, and we can understand why the schooner, having no lightastem, was not sooner seen; why she was not putundercuntrol; why she was deserted so speedily,leaving·a man asleep on board; and why the Haverlon saw no more of her. t;rnder the facts, as found, there can be no doubt about the fault of the HaYerton. She was bound to have a vigilant lookout,Rnd an efficient officer of the deck. When the two were merged, she had about half of each, and that was at the critical time for the pilot-boat. That the pilot-boat should have been put under control when the Haverton was found to be approaching, and not left so that she could not be speedily handled in an emergency, seems equally clear. All vessels are required to use reasonable diligence to avoid collisions. In cases of collision, a fault of one vessel will not excuse any want of care or diligence in another to prevent damage to herself. "In a cause of collision, the plaintiff, in order to recover entire damages, must prove both care on his own part, and the want of it on the part of the defendant." See The Clara, 102 U. S. 202. As to the leaving the helm lashed in cases like the present, see. The Transit, 3 Ben. 192; and also Mars. Coll.366. In an almost identical case, so far as the cruising of the pilot-boat is concerned,.a pilot-boat was held by the supreme court to be on a cruise
5G8
FEDERAL REPORTER.
in pursuit of employment as a pilot-boat, and as such, under the old rule, required to carry a mast-head light. See The City of Washington, 92 U. S. 31. It is true that in that case the omission to carry stich a light was excused, butit was on the ground that, as the pilot-boat was seen by the approaching vessel in time, such fault did not contribute to the collision. The New York pilot-boats do not appear to have fixed and definite stations, but they oruise hundreds of miles off the port of New York for business. When such pilot-boat is so cruising, looking or waiting for ships wanting pilots, I think it clear that she is a "pilot vessel, engaged on her station on-pilotage duty," within the meaning of article 9 of the act of congress approved March 3, 1885, (chapter 354, 23 St. at La:{'ge.) , In commenting on the English rule, which is identical with ours, Marsden says: "It is sUbmitted that a pilot-vessel is on her station on pilotage duty, within the meaning of' this article. and, required to carry the white mast-head light alone. not 1)nly while actually engaged-in putting a board a shjp, but while she is cruisingon herstatio,n, either for the purpose of supplying pilots. , , or taking tl:1em out of ships." Mars. CoIl. 334. In all the cases of collision that have come under my observation, where vessels have been properly exc\lsed for not carrying all the regulation lights, the excuse has, been on the ground that, as the vessel was seen in time, or conclusively could not orwould not have been seen, notwithstanding the delinquency in lights, such delinquency did not contribute to the collision. If in the present case the watch on the schooner had not discovered (as the witnesses say) the Haverton long before the collision, but had first discoveredher close by, (as I am inclined to think was the real fact,) and the :a:averton had proved a vigilant lookout, the learned proctors for libelants in this case would no doubt (and with strong grounds) have claimed that the Haverton was grossly in fault for not keeping constantly displayed a bright white light, as high above her deck as the beam of the ship, sufficiently strong to be seen, in a clear dark night, a distance offive miles; but as their case is, no fault is claimed on that score, for, except as it distracted the attention of the watch on deck, it cut no figure in the collision.
THE W.
M.
WOOD.
569
THE W. M. WOOD. J MACHELA v. THE W. M. WOOD. (Oircuit Oolurt, E. D. Louisiana. January 22, 1887.) COLLISION-TUG-LUGGER.
In a collision bet-vveen a tug-boat and a lugger in the port of New Orleaiis, the tug-boat was held not to be in fault when the signals of her master, iutended to mean that he refused to take the lugger in tow, were misunderstood by the lugger; and those in charge of the lugger were held bound to observe that no precautions were being taken on the tug to take the lugger in tow with safety.
FJrnest Sabourin, for libelant. Charles S. Rice, for claimant. PARDEE, J. The fixing of responsibility for the collision in this case depends entirely upon whether the Wood undertook to tow the lugger, and so signified to the lugger. If she did, she should have slowed down her speed, and have taken proper precautions to take the lugger's did not, then the line with safety to the lugger and her crew. If Wood was ft;ee from blame, and the whole responsibility for the damage done the lugger rests upon her master at- the time. The evidence is not conflicting as to what was done by Wood, with one exception, and that relates to when and why the two whistles were sounded, and on of evidence is that they were sounded after the tugger waS" this the entangled with the bark's hawser, and were signals to the engineer for the slowing down of speed. As to these whistles, the testimony of the officers of the tug, particularly of the engineer, is the best. The Wood had two whistles,-one large one, on the upper deck, and one small one, under cover of the boiler-room. It is not pretended that the large one was Plown at all. There can be no doubt that the whole intended use and purpose of the small whistle on the Wood was to give orders to the engineer with reference to speed, and not to make signals to passing boats.. This being the case, the evidence of the engineer on duty as to the time of sounding this whistle cannot be mistaken evidence,and cannot be impeached by witnesses on shore, or on other boats. It is therefore clear to me that the Wood herself did nothing to indicate that she would accept the towage of the lugger. There remains, then, the conduct of the master. He swears that he refused, in terms, to take the lugger in tow. and waived her off. He is corroborated by Walters, the man at the wheel of the Wood, and by all the presumptions that arise from the conduct of the Wood. The witnesses on other boats, and on the shore, do not pretend to have heard what the master said, although many of them have been certain what he . "lReported by Joseph P. Hornor, Esq.· of the New Orleans bar.
Admiralty Appeal.