.:: Tij;E HAVILAH.
875
without any separating mediunl, and'bya process which the defendant was free to adopt, and, since the decree, has adopted. It might be suggested that the Schillinger method forms a tightjoi11.t, and keeps out the while the other joint does not. Again, it mightbe suggested that the Schillinger method permits the blocks to move more freely, and that the separation is more perfect, and that less injury is liable to be done to the adjoining blocks by settlement, upheaval, or fracture of any of the blocks. These are possible advantages of the Schillinger method of forming a joint which may have induced the defendant to adopt that method ,in lieu of others that were open to him. I have carefully examined all the testimony, however, and I have failed to find anything to warrant me in saying that they are positive advantages by which the defendant rEl!llized a profit; much less have I been able to find any testimony to enable me to make a definite estin;late of the amount of such profit. The result is, in view of the foregoing considerations, that the exceptions to the report must be overruled, and the report confirmed. It is so ordered.
THE HAVILAH. PRATT 'V. THE HAVILAH.
(Dl8trict (Jourt, 8. D. New York. February 9,1888.) CoLLISION - BRIG AND SCHOONER - SAILING FREE AND. CLOSE-HAULED ll'LICTJ1ilGEVIDENCE-LIGHTB-OREDIBILITY OF WITNESSES.
OON-
About dawn the schooner Helen Augusta was sailing fUll and by,.on a course about E. by N., with the wind about N. N. E. Tbe breeze was moderate, the. weather clear, and the schooner was making some four or five knots. She was run into and sunk by the brig Havilah, sailing free, on a course W. tN. OnContlicting evidence, Mld, that the schooner's green ligbt was at all times shown to the brig; that ,she made no material change of course that misled th'e brig, except a luff in extremilJ, not constituting a faUlt; and that, a8 the brig was 'sailing free. and tbe schooner close-hauled, it was the duty of the brig to keep out of the way; ·that the brig was negligent in not seasonably observing the lights of the schooner, in not keeping constant watch upon them. and not taking timely measures to avoid the schooner.
In Admiralty.' Libel for collision. Noah T.ebbits and Henry Arden, for libelant. Henry D. lJoteh1cWJ and R. D. Benedict, for claimants. BROWN', J. At about da,wnin the morning of December 9, 1887, the libelant'!? t'WQ-masted sehooner Augusta came in collision with the brig Havilah in Long Island sound, probably some five miles or thereaboutsto the ..south-west of Faulkner's Island light. The brig's stem struck thesc1;looner a little forward of amid-ships, on the starboard side, '
876'
FEDERAL REPORTER.
and injured her so that she sank, in about two minutes, under the bows of the brig. The officers and crew were all saved except the wheelsman, who was seen a moment after the collision, but has not since been heard of. The breeze during the night had been moderate, and" about N. N. E. j" the water was smooth; the weather clear, and good for seeing lights, and both vessels had their regulation lights burning. The schooner, of about 250 tons register, and loaded with coal, was bound for Saybrook, and had. up to the time of the collision, or at least within a few minutes of the collision, been sailing "full and by." She would sail within five points of the wind, or a little less, so that her course was supposed to be "about east by north," and it is soalleged.inthe libel. On deck were the first mate, the wheelsman, (who was lost,) and, fora short time before the collision, the steward, who had no duties on deck, except to assist when wanted. The only lookontwas the mate, who, as he testifies, acted as lookout, walking back and forth on deck. The mate and the steward testify that the red light of the Havilah was seen about threefuurths of It mile distant, and about two points off the schooher's starboard bow, and that the light continued upon about that bearing,an'd not more approaching the stem, until the collisionj that shortly before the collision the mate hailed the brig to keep off, but no one, was seen, and no change was apparent in the brig's coursej and that the schooner kept her course without change, her sails full and close-hauled, upon the port tack, until the collision. This is, to some extent, confirmed by the master, who was summoned from below, and came on deck a few moments before the collision. The schooner was making about four or five knots per hour. The brig was about 130 feet long, of 507 tons register, and bound to New York. She had the wind free, and, until shortly before the collision, according to her testimony, was sailing on a course W. i N. Her master, after passing Faulkner's Island light, went below. There remained'on deck the second mate, who had charge, the wheelsman, and the lookout forward. The mate and the lookout testify that they made the red light of the schooner about two and one-half or three points on their port bow, at some considerable distance; that the light continued in about the same direction, or broadened. off a little; t4at, to orders to report to the captain all lights of the secondmate went aft to report the red light; that he did Bo,and returned at once, and that, as he was coming out' of the companion way. the. green light of the schooner was reported by the lookout, with the order "hardup," which the second mate immediately repeated to the helmsman, which order was obeyedj and that the collision occurred very shortly afterwards, the brig falling off, as 'it is claimed, at least one and Onehalf points to the southward, under her starboard wheel. The master, hearing the order "hard-up," immediately came on deck, went to the wheel to assist the wheelsman, anci remained there until the collision, which occurred very shortly after the wheel was put "hard-up." The bowsprit of the brig ran through the after part of the foresail, between the schooner's fore and mainmast. The brig's starboard braces were then hauled back, so as to back the ship away; but, before this could
THE HAVILAH.
877
take effect, the schooner sank, and her mainspring stay, catching upon the brig's jib-boom, broke it a couple of feet outside of the cap. As the brig was sailing free and the schooner close-hauled, it w&.s the legal duty of the brig to keep away from the schooner, and the brig must, therefore, be held responsible for not doing so, when, as in this case, there are no extraneous circumstances to excuse her, unless it appears that the collision was brought t\bout by some fault of the schooner. The fault of the schooner alleged by the respondents is that she did not keep her course. To make this a valid defense the change of course must be something more than a change made in extremis, when collision is inevitable, and that situation is brought about wholly by the other vessel. In such cases aehange of course, for the purpose of attempting to escape a collision immediately impending, though the maneuver may be a mistaken one, is not a fault. Steam-Ship Co. v. RumbaU, 21 How. 384; Bentley v. Coyne, 4 Wall. 509; The Fairbanks, 9 Wall. 420; The City oj Paris, 1 Ben. 174; The Jupiter, Id. 536, 537. The respondents contend that such a change in her course to the north,. ward is proved-Hrst, by the change in the light exhibited by the schooner from red to green shortly before the collision; and, second, by the angle of collision, which, instead of being but one and one-half points, the difference in their courses, was, as they contend, from four to seven points, proving, as is claimed, in connection with the brig's alleged keeping off two points, a luff by the schooner of from four to seven points to the northward; and they oontend that there would have been no collision except for that change. The libelant's witnesses testify that there was no change in the schooner's course, and that the position of the vessels and the course of the schooner were such that the schooner's red light was at no time exhibited to the brig. If the light first seen by the lookout of the brig, and reported as red, was in reality the schooner's red light, the contradictions between the libelant's witnesses and the respondents' cannot, so far as I see, be reconciled; one or the other must be If, as the respondents' witnesses say, the schooner's red light was visible during several minutes, and bore, up to within a minute of collision, from two and one-half to three points, as they allege, off the brig's port bow, during all that time the brig's red light must have been seen on the 13chooner's port bow only. It could not have been 'seen on her starboard bow until brought there by her own luffing within half a minute of the .collision. But the first mate and the steward of the schooner both say that they saw the brig's red light for several minutes, during the interval, about two points off the schooner's starboard bow; that the first mate, by the use of glasses, while the brig was a very considerable distance off, saw that she was a square-rigged vessel; and that they stood at the com panion-way watching her on their starboard bow with her royals set, and that they had no doubt that she would keep away to the southward, and,until she came near, had no apprehension of collision. If it was the schooner's red light that the lookout and the second mate of the brig saw, the numerous details in the testimony of the :!jrst mate and steward of the schooner on this suhject must be a fabrication., Again, a
change by the schooner' offrOIn f<lu!:' to seven points to the northward is not a change possible to be attributed to any carelessness or inattention olthe wheelsman. A change of two points, a minute .before the collis}OIil, would have set her sails which would 4ave been immediately observed and corrected ·.. The mate and steward testify that repeated oDders were given to the wheelsmanto keep her full and by. If there witS any change of from four to se.ven points, it must have been a change m$.de d,eliberately and upon the. mate's order. A change of three points might have been made at the laEjt moment by the wheelsman under the terror of immediate No order to cpange the course before that could have been given by the mate, except for the purpose of tacking. There was no occasion for tacking at that time, and the place was improper. He says he did not order any change, and it is incredible, if the brig'!! red light had been seen 9n the schooner's port bow, that she should have tacked deliberatelya'Cross the brig's course when the brig was very near. To I'lUpport the respondents' contention,in order to avoid that violent improbability, it would be necessary to find that the brig's redlight was not seen at aU on the. schooner until after she had changed her course by tacking, and had .there1:ly brought it on her starboard bow, within a half minute ofthe collision; f,l,Ild that the mate deliberately tacked without looking to see what wasolose to him to windwardjand that all the material parts of his narrative and the steward's are fabrications. A careful examination of the testimony of the mate and steward of the schooner, as well as their appearance and deportment aswitnesss, impress me with. a conviction of their truthfulness .and capacity. There are numerous details in their testimony from which I find it difficult to believe fabrication, recklessness, or incompetency. To account for the contradictions, that is, I tl:).ink, the least probable alternative. Theirstory is in itself entirely consistent. natural, and probable, although some doubt and difficulty remain as to the angle of collision. As respects the light exhibited by the schooner to the brig, it is opposed by two witnesses only from the brig, and as regards their. testimony, the following circumstances ;must be observed: (1) If the red light seen was the red light of this schooner, and if it. was seel) during an interval of from two to four minutes before the green light Wl!-srecognized, and if. it bore from two and one-half. to three points on ;the port bow, as. ber witnesses say it. bore, the collision could not possibly haveoccurredj for the schooner, from that bearing,could not have re!1ched the brig by any possible course that would have kept her red light exposed until shortly before the collision, as, the br;g'switnesses testify it ,was.' To have enabled the schooner to reachthtl.place of collision, sh()wing, her red light until within a minute or half minute of the collision, she could not have borne over one point off the brig's port bow, and scarcely so much, even, as a point. Wpile some el;rors tbe estimate of Rhould not be held incompatible ,with the credibility of the witnesses, the. difference. between one point and "2t ,OJ:. 3,points" in the bearing of a light of which the witnesses are b,?undto Wte careful notice, is too great to be aseri.bed to error in
in
819
observation by competent seamen. So great a mistake must necessarily detract from the reliance to be put upon their general testimony. Both the second mate and the lbokout of the brig do state repeatedly that the red light which they saw bore two and one-half to three points on the port bow, increasing somewhat, as they thought, to about three points. The captain says it was reported three points off the port bow. If this was seen, as the respondents claim, some three minutes before collision, the necessary conclusion from this discrepancy, and the impossibility of the schooner's reaching the place of collision, would be that the red light seen was not the schooner's, but some other red light. There are other circumstances which tend to diminish confidence in the account of these two witnesses for the brig: (2) The lookout's testimony is peculiar: "Question. Did you see the light of this schooner? Answer. I seen a .red light. Q. And where away was that light? A. It was about twopuintsand a half,perhaps three points, on the port bow. Q: How far away do you think she was? A. How far away? I couldn't tell exactly: the distance: it was too dark. I only seethe light; .perhaps three quarters ;of a mile, or something Uke that.. Q. Did you make anyrt'port? .4.. Yes. sir. Q. What? A. Ireportedto the. second mate, ·Red light on the port bow.' Q. Where was the s6cund mate when you reported to him? A. He was walking amid-ships. Q. When you repoit.ed to the second mate, what did he do? A. He. came right forward, and came right on the forecastle head. Q. Where you were? A. Yes, sir. Q. When he was on the forecastle head what did he doPA. He told me what light it was.-.hedidu't know exactly what light it was. He said .something about a light, and said, ·I am going to report to the captain. Captain told me to report him the lights. ' Q. Did )'OU point (lUt to him this red light that you saw? .4.. Yes; I did. Q. After lle went to report to the captain, towards us, and did you see any change in that light? A. I seen it at once suddeidy'it was gone. lwas walking across, you know.Q. Walking across deck:? A. Yes: when lIooked at it again I couldu't see it: it got {Iut of my sight; I didn't see it any more. I kept looking at it for a while, and at oncel see a green light. ,Q. Where was green light? A. She Wll8 on the port bow. Q. How much on the port bow? A. I don't know exactly: it was a little further than the red light; some over three points. Q. When you saw that what did you do? A. I reported it. Q. What did you say? A. · Green light on the port bow.' Q. Did you say anything else? A. 1 didn't say anything else. I was 'waiting for an answer, and didn't get any· .Q. Thenwhat?A. Then I sling Ollt again. Afterwards I sung out to the man at the wheel,' Keep off,' abo.ut the same time.Q., What happened after .that, after Y9usung out to the man at the wheel to keep off? A. I doli 't know what happened.. I kept looking aithevessel,-at the schooner. Q. What did you see of her? A. I didn't see anything right away, oillya green light, and some kind of dark spot':'· I couldn't make it out. After she came a little further I could see it· was a schooner." On You kept your eyes fixed on the lights, did you? Answer. For .a moment, .and·then I went,acr08s one or two times. and Ilooked up again, and
.couldn't see it."
. '
(3) He subsequently states that at no time' did he. see both the lights ,of the schooner;' and yet, if th:esehooner, by a change to the northward,
880
FEDlmAL REPORTER.
3hut in her red light, both must have been visible together for a time before the green alone was exhibited. (4) .The time when the greenlig,Qt is said to have beJ3n first recognized is important, and can be very approximately determined from the testimony as to the incidents occurring between that and the collision. Getting no answer to the·first report of the green light, the lookout shortly reported it again, and almost immediately shouted "hard-up." The second mate, coming just then out of the companion way, heard the order, and repeated it.. The captain hear4 the second mate give that order. He jumped up immediately, and withollt stopping to look at the schooner, or to see her lights, went to the ,help of the wheelsman, and found the wheel "within a few spokes" of hard-up. The wheelsman says thts was a very short time before the collIsion. When the order "hard-up" was given, the wheelsman saw the schooner's red light under the foresail, "abQut two or three of her distant," i. e., from 200 to 300 feetj . and, as the ve!!sels were approaching each other at the rate of 1,100 feet per minute, this testimony would indicate tbat the green light was seen onlyfrom a quarter to a half minute before collision. The second mate, after repeating· the order "hard-up," hurried forward, and when he got to the forecastle, the brig's jib-boom was just getting between tbe schooner's masts. The first mate heard .the second mate's steps on his going to "hard-up" very soon afterj report to the captain, and he heard the then he jumped out of his berth, came up on deck, and saw "the schooner's jibs coming jib-boom;" he "looked astern and saw the captain at the wheel,ariiithen made a leap forward as fast as he could go,and got a littlefuore than amid-ships when they struck." Upon all this testimony I cannot find that there was more than half a minute between the report of the green light and the collision. The respondent's testimony leaves great doubt, also, whether the red light reported to the captain was seen any considerable time before the collision, whatever that light was. When the lookout first reported it, the second mate was amid-ships, and came up on the forecastle. The lookout estimates that they talked about the light for apout two minutes before the second .mate went.to report it to the captain. This is very improbable, if the light was readily distinguishable: probable enough, if the light was so faint as to be doubtful. He subsequently gives two tilinutes, however,ss his estimate of the time between seeing the green light and the collision.. Bllt as, upon all the testimony, there is IlO reaSon to believe that the latter. interval exceeded half a minute, the former interval was quite as likely similarly exaggerated; and possibly not longer than the latter intervalj and if the light was a clear red light, it is hardly probable that the second mate would remain with him even half a minute, instead of reporting it at once to the master, as ordered. The reasOnable inference is tbat the red light was not seen more than a minute anda,haH, at niost, before the collision, or about a quarter of a mile distant. This would convict the lookout of gross inattention, and his inatwould also be necessarily inferred from his not seeing both the schooner's .lights when she changed her course, if the red light was in
881
fact the light of the schooner, and the green had been brought into view solely by such a change. Another circumstance that diminishes confidence in the lookout's testimony is his intimation that when the schooner's green light was first seen he could not see her hull or sails; he could only "a green light and some kind of a dark spot. I couldn't make it out. After she came a little further, I could see it was a schooner." It was a bright, starlight night; it was already dawn; and, upon the other testimony in the case, it is very clear that at the time when, as now claimed, the green within 500 to 70.0 light was first visible, the. vessels were so near, i. feet, that the hull and sails must have been in plain view. It is impossible, upon testimony of this character, to hold the libelant's narrative a fabrication in its main particulars. See Ohamberlain.. v. Ward, 21 How. 54$, The Angle of Collision. Had both vessels collided any change by either of their former courses, the angle of the blow would have been bJltoneand one-half points, if the schooner was in fact sailing .N. by E. I do. not regard, however, the latter fact as certain, because she was not sailing by compass, but by the wind. The angle of collision, as shown ip ,the drawings from the models placed by various witnesses to illustrate. the collision, varies from four to six and one-half points. The of the schooner places the vessels at an angle of four and threepoints, the mate at four and two-thirds, the steward at four poinis. But the master, who came on deck but a few seconds before the collision, states that the brig's red light was then about two points, only on his starboard bow. All the other estimatea of the bearing are the same. Moreover, as the brig was going nearly twice as fast as the schooner, and was from two to three times the schooner's tonnage, strik· ingherforward of amid-ships, would necessarily, almost immediately send the schooner's bows to the northward, and increase the apparent angle of collision. It is not at all improbable, in my judgment, and it is probably true, that within the last few seconds before the collison the wheelsman luffed somewhat in the hope of avoiding the brig, which was close upon them. The wind is stated as "about N. N. E." I do not find thaUhe precise course of the schooner, by compass, was noted. The fact that the sails of the brig, about 4 o'clook, were trimmed aft more than they had previously been, affords some indication that the wind was hauling to the northward; and, if so, the course of the schooner would graciually veer also to the northward. And it is 110ticeable that the steward, who could have had no idea of the bearing of his answer, gave his judgment of the schooner's course, simply from general knowledge of the sound, as N. E. or N. E. by E., though he did not preiend to swear to this; and, if the schooner was in fact sailing a point more to the northward than she had previously been, the bearing of the brig's light would be two points off her starboard bow, as her witnesses estimate it was. Opposed to this is the mate's statement that Faulkner Island light bore E. N. E., one point on his port bow, about ten minutes the collision. I cannot place much reliance upon the brig's v.33F.no.15-5G
e.,