THE LUDVIG HOLBERG.
117
ness. It should also be stricke,nout. Mills v. Duryeg, 7 Cranch, 481. Inasmuch as it is not disputed that the Kansas court had jurisdiction, and that the defendants had notice of the proceedings therein, the def!lnse set up in the third paragraph of the answer is plainly an equitable one. Christmasv.Rtt88ell,5Wall. 290; AUisonv. Chapman,19 Fed. Rep. 488. Equitable defenses cannot, however, be set up in actions at law in the federal courts. Bennett v. Butterworth, 11 How;, 669; MonteJo v. Owen, 14 Blatchf. 324; ParsOnBv. Denis, 7 Fed. Rep. 317; Doe v. Roe, 31 Fed. Rep. 97. This paragraph must therefore be.stricken out.
LUDVIG HOLBERG. 'STAFFORD V.THE LunVIG HOLBlllRG.
Tint F.O. MATTHIESSEN & WIECHERSS: R. Co. v.TIIljl LUDVIG HOI..BERG. (OtrCtUt Cowrt, 8. D. Nf/W Yotk.June 5, 1800.) OF EVIl>ElfCE. ," .' .' '
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" 'The' decision of the distrlct court as to questions of fact will not be disturbed on appeal where the evidence is conflicting, and some of the witnesses were examined before district judge.
, In Adfuiralty.
On appeal fro.D1' district court. ' FINDINGS OF FACT.
OLThelibelallt Stafford was the owner of the bark Quickstep before lit'tpe time of on the 24th day ofMay,1887. The libelant ,the F. O. Miithiessen & Sugar Refining Company is a corporatioll" 'll,£,i,d ,,:8S the owner of a cargo of.sugar laden on board said bark. (2) Qn the afternoon of the,24th day of May, 1887, the bark Quickwas being towed from sea into the port step, ladElP with a cargo of ,of New' YorIt by the tug-boat Leonard Richards" on a hawser 80 fathoms proceeding up about in the middle of the main ship chanlong. nel, and' when a little to the southward and eastward of buoy No. 11, at .about 4:26p. M., she waS run into by the steam-ship .Ludvig Holberg; the latter v!lssel ;stljking ,the bark on hllr port quarter, about the mizzen topmast back,stay, cutting into her after compani<;>ndoor a distance of about nine feet, her open so that the cargp· rolled out. Immediately after the qql1isiAn said .bark began to sink, and, while sinking, wall towed by the tug on to the west bank, where she grounded in 25 feet of water, abo\ltaquarter of a mile below buoy No. II,snd, beCame ;3 total was a1110st. " . .. (3) 'thl;l bark waS 1 feet long, 37 feet beam, 2,3 Jeetdepth of hold, , ;3Iid was laden with 1,024 tons ofsugar, and drew 20feet of wa,ter. (4) The Ludvig1J'01berg,which hails from Bergen, Norway, was an iroll'screw steam-ship of 687 tons 20,0 lopg. Tll,eclaimants' :8.l1 d
:tl8. CnTistophel' 'Kahrs, 6thers weFe'her 'she' [ballast,' forward, 'bound for Barr,ftcoa. for fruit. dtmVing 13 She was manned lind bav'a 'competent' Wtu;ttlr'a;nd'officers, and:a:full complement or men. At and priodo the time of <\QUision hermas'tetand pilot were on the bridge. She steers by hl1.nd;' and 'tb.erewasather wheel One ordinary seam!iD steering the vessel?tl.s;E1ir.ootedby the pilbt.. The first officer sl1dsecond officer 'were on lookolit, ori;the port ll.bd'starboard sides, respectively, of whichisfasteDed ofthem, by the windlass, was the carpenter, also on lookout. (0) The steam-ship, startel3,Jrom pierloE. R., some time between 3:00 and 3:10 P. M. She ran slow out of the East river, but soon increased to full speed, and continued to run at that rate until, fog having tOl'dead slow. Her motion set in, she reduced to half speed, through the water, was, wp,ileat fuJI spe«;ld, sbout 9to 9f knots; while at half speed abouti61to 7 kMts;while' at-dead slow'about 3f knots an S,he hll.d b,eElD the ,8: qnly F piObably not more tb.'an 'fourot'five, be(orethe colhsion. ' The pitch of her screw was 1ri.Jeet 2 from 69 to 71 revolutions per minute; at half speed from 40 to 45 to 50 revolutions per minute, and at slow speed from 20tQ 26 to 26revolution:sper min.;' <:.:/ .:.',1·.··':, .,,':" ' "".' ",
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(6) She was off,Bedloe's island between 3:27 and 3:32, and it was nearly 4 o'clock when ,The. from that point to the place of colltsiori is a little over knots; She carried the ebb tioe with her a little below the forts. until the collision, there was a After a brief, period ofsla.ck 'water, ftbbdtide.,Its,set wasll.potit.S. in about one' an h?ur; apd.'a v. but haIr akno, an hoar.' . Thewmd was sout;h'erly breeze.' .' " , (7)' At time and otcollision) th{!rewas 'so much fog'asto vessels from to ea.cb'biher for more thim a, short diil'tance\ (estilnated Holberg at between 200 ai'ld'800'feet,) and such 'as'tifirequirethe $onnding.of tinder the 'the Ludvig Holbetg:.This fog had prevailild betweentheJNa.trows and 'buoy No. 11 15 minutes beforij the 'collision. . ,.' . ' . , ', ''(8):;The Ludvig Holpefg fiul'intti this:'fog aBout the tin'le she passed tha forts, and at did herS-peed until ... Then'sh'ereher speed dttcetf to half speed only t iLhd did abGut1baoy No. 13.. "'" thetimesbe poiilt'ldittlebelowbUoy No. 13; she slowed down to about fourknot$over the gtoub<L .' .From point 01ab6tit 4,500' feet;'she did not increase .llellspeed, prUceediilgdowD thecl:/anhe],' keeRlng upon the star- ' Jas }'lear, tneCbanhel 'buoysaB could stHely go,. and sound-, ing'fog';$ignals'from .': ,'.. ," .
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" 'THl!: ,.LUDVIG
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" (10) While she was,thus.proceedingshe heard one blast rightahea.d, then another a little mor-e the' starboard bow. Both these were blown tug, which was not at that time visible throup;h the· fog tothose on by board the Holberg. '" (il) Almost immediately thereafter the tug came in sight; only a few hundred' feet off, and a >little on the steamer's starboard bow, and gave i:. 'a signall'of'two (12) Neither the bark nor the hawser were then visible, and no signal$ indicated to the Ludvig Holberg that the tug had a tow nearly 500 feet behind her. . ' .. , (13) Upon receiving the whistle of two signals from the tug" the steamer starboardedj and passed the tug starboard to starboard clearing . her: about 30 feet. (14) Then for the' first time; the L1l<l vig Holberg became aware of the ;presenoeof the Quickstep, which was not folloWing directly after the tug, :butto,starboa'rd· of her,and whose pilot at that time, by putting her Wlbeel narda-port, threw her head somewhat more to'starboard. ; -'i' (15) IT'hereupon the in' o:rder; to go between the tug 'and theballk,l:i,tthe satlle hailing>the tug to' cast!(lffthe hawser. , had, been cast off. ,promptly the steamer would :jlr()bablyJhave the tug aodthe' bark. ' (17) The hawser was not cast off, and, the' steanier; running against it with her starboard bow, parted it, and at the same time her bow was swung to port, resulting in collision with the bark's port quarter. (18) The steamer stopped and reversed 'as soon as she saw that the tug had a vessel in tow, but not before, and was nearly stopped at the time of collision. "'. ..... ." . ' . " .'" (19) Had the steamer been aware when sbe starboarded to pass the tug that the latter .. tow on a hawser of 80 fathoms she could, and' in ali 'probability would, have avoided the collisipPIT"l ;'tI " "),, ;;'
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LAW.
(1) Said collision was not due to any fault or negligence of those in of the Budvig Holberg. " (2) The libels herein should be dismissed, as already decreed by the court, with costs;w the claimants; in'Ooth courts. J)wen, Gray.&7, SturgeS, for the Quickstep. . Sidney Ohubb, for the owners of her cargo. ,W'ing, Shoudy &7 Putnam, for the Ludvig H,olberg. T
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LAcoMBE, J.' As to the presence or absence offog, and 8S to the speed ()ftpe Holberg,-:-the determinati,ve questions of fact in this '(Jnse,-'th'ere .is great conflict of testimony. . The witnesses from. the HolBerg testifymost run' from the Narrows to below 11 so dense a. fog prevailed that vessels could be seen a short distance, and that the 'sounded and ThoillHTOIil the barkanll tug asp6sitivelyassert redne,ed )the rc6ntrary. 'Ofthewitnesses other thaathoile from these three vessels
:120
FEDER;A;l. REPORTER,
vol. 43.
,some support the libelant's case, others that of claimants. Finally, in the testimony of nearly every witness .there is much inconsistency, and .it is impossible to frame such a theory of what occurred as will harmonize with all the proof. Some of the witnesses who testified on this branch of the· case were exa.mined before the district judge. His decision, therefore, is affirmed. In so .doing the evidence of those on the Holberg Ihust be in part accepted and in part discredited; either the fog prevailed for a time much less than they say it did, or she ran at full 'speed for some time after itsbut in. It is, however, natural to expect that a witness wbo is testifying to the density of the fog, or the duration ,of a, period of reduced speed,. when the fog or reduction of speed is sup:.posed by bim to belphis side ofitheicase, will exaggerate his estimate in both particulars. That bis narrative thereby becomes inconsistent is ':ll.Qt ;by itself sufficient torequii'e its; entire rejection, especially where it ,is in part corroborated by'other :proof. In this case, the disinterested '.witness wbo concededly was near;,est to the collision, botb in time and place testified tbat he overtook and, passed the Holberg going slow in a and that there was dense fog :dense fog, with her in the Narrows llt about 4 Po; 1Il.,il!t:testified to by tbeJight-house keeper ;atFort Tompkins, (whose by,bis log-book,) and by the soldier at the same fort. ,,; :'l1he decree oLthe district court is :affirmed, and the libels dismissed. i .,
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THE LUDVIG HOJ,BERG. STAFF01U) ,,: :; - ;
LUDVIG HOLBERG. . I
THE
F. O.
MATTHIESSEN
&
WmcHERS HoLBERG. '",
S. R. Co.
V. THE LUDVIG
(Oircuit Court, B. D. New York. June 20,1800.) It is not necessary to conclusion of law or flnding of fact that the circumstance tbat some of the were examined before the district judge influenc,ed the circuit court in deciding to affirm the judgment of the distriot court rendered upon conflicting eVid,en,ce.; : ' ., ' '
In Admiralty. Appeal froni' court. On motion to amend the For former opinion"giving the findings, see ante, 117.
,,: 'in That
OF PROPOSED
TO FINDINGS
BY THE COURT.
the and .made more Jlpq ;certain by stating hQw fa;r sputhward and hpw far to the east;l,ra,rd Qfbuoy 11 the collj,EjlOl) occurreq, or that saiq finding be madE> specific than it n9W js by the use of the expression "a little." 'That the,fourth findingjbe amended by stating that "th.., pitch of