GILKEY '/I. THE BETA.
389
of the schooner, himself believing a collision inevitable, starboarded bis helm to relieve the concussion; that thereupon the steamer blew one whistle, backed her engine with all steam, and ported her helm; and that from these two maneuvers of the respective helms the collision resulted, starboard bow of schooner striking port bow of steamer. That the respective bows of the two vessels came together in this manner is conceded; and if the testimony of the schooner's seamen, as recited. be true, then the master was justified in trying as best he could to avoid or relieve the collision. I think the testimony is true, and I think the fault was in the steamer's running into too "dangerous proximity" to the schooner, and thereby failing to keep out of her way in the sense which the law of navigation requires. See The CarroU, 8 Wall. 302, as to the law of "dangerous proximity." See, also, for numerous authorities on the point presented in this case, The Schmidt v. 'l'he Reading, 43 Fed. Rep. 3\:18. I will decree for the libelant.
Grr,KEY et al.
fl. THE BETA,
Etc.
(DlBtriet Court, S. D. New York. October 81, 1890.)
L
CoLLISION-DAMAGES-RATING FOR INSURANCE-ALLOTMENT NOTES.
Although the expense of the new rating of a vessel repaired after collision, 88 al) expense necessary to put the vessel into ber previous insurahle condition, may b'e recovered under the rule of restitutio in integrum, it is rightly excluded when tbe vessel is repaired in a different manner from her original construction; nor are allotment notes recoverable as advances to the crew when freight and demurrage are allowed for. After collision at sea the schooner B. H" filling but not sinking, was during one day towed in from sea to FortresR Monroe, and there left in cbar;;:e of her captain, who afterwards employed a tug to tow her to Norfolk, a trip of an hour or two only, dur?ng which she capsized, no cause of capsizing being made known, and the master testifying that he could not explain it. Held that, considering the much longer previous towage at sea under more difficult circumstances, the subsequent capsizIng of the schooner, without any change In her condition, and without explanation, was to be inferred prIma fame to be due to mismanagement, and not to the collision, as tbe proximate cause, llnd that the additional damage and expense caused by such capsizing could not be allowed in the assessment of the collision damages.
8.
SAME-SUBSEQUENT CAPSIZING-PROXIMATE CAUSE.
Exceptions to the Commissioner's Report. Owen, Gray «Sturgis, for libelants. 'Wing, Shoudy «Putnam, for claimant. BROWN, J. 1. When, in consequence of collision and repair, 8, new rating and certificate have to be procured in place of the former rating and certificate in order to obtain insurance on the vessel, considering that marine insurance is not merely universal, but practically necessary for the support of maritime commerce, I think the expense of such a new rating, whicb is an expense necessary to put the vessel into her previ-
·390
FEDERAL REPORli'ER,
voL 44·
. .ouslyinsutahle condition. comes within'the rule of restitutio in'integrum, and should therefore be allowed as part of the damages. The Belgenland, .36 ,Fed. Rep. ;504, 507. The rating is an incidentaUached to the vessel, and valuable to the owner. I see no reason why his pecuniary loss in this respeot, when consequent on the collision, should not ordinarily stand OD the same footing as any other direct pecuniary loss therefrom. It was, disallowed by the referee in this case, as his report shows, because the vessel had been repaired ina diherent mauner from her original construction, and was. there/ore" in some respects new." For rerating, as respects her new and different construction, the claimants could not be charged, and as the item was not divisible, it was here properly excluded.. 2. Thead,',;ance on allotment notes to the crew was rightly excluded, because the allowances for freight and demurrage covered such charges in another form. 3. The numerous items in regard to the damage to the vessel, cargo, and effects, and the charges and expense attending the raising and repair, as well as the value of the vessel herself, have been carefully considered by the commissioner, and to most of them I do not find in the evidence sufficient warrant for any material change in his findings, except as connected witp the upsetting of the vessel, al1d the liberal allowances for personal effects. . 4. Considerable damage, as the commissioner states, was no doubt caused by the6apsizing of the schooner while being to\ved from Fortress Monroe to Norfolk. The collision happened at sea,ofl' Cape Hatteras, ,two or three days previous. On the day after the collision she was towed in from sea, to Fortress, Monroe by the Beta, where she was left in charge of her master.. On the following day a tug was employed by him to tow her to Norfolk, a hip ofdhour or two only, and onthe way she capsized. The captain was asked to explain why she capsized and answered that he could not do so. No further eviden('e was given on the subjeot. The schooner, through damage by the collision, (The Beta, 40 Fed. Rep. 899,) at once partly filled with water, but, as her cargo consisted of empty hogsheads and tierces. she did not sink, and was towed in that condition to Fortress Monroe. She had floated for two days, and had been towed this long distance at sea, and yet, on the, short trip from Fortress Monroe to Norfolk, without any change in her condition suggested, and under far less difficulties of towing, capsized. The claimants were not present or represented. They have no means of ascertaiuing the cause of capsizing, and the libelant's captain says he cannot glve any explahation, which is equivalent to saying that he knew of no change in her condition, and no reason why she should be upset. The fair inference, as it seems to me, under such circumstances, in the absence of explanation, is tliat she upset through the lack of proper manugement in towing, aud, if so,the damage caused by upsetting is nota proximate result of the collision, but" chargeable to the subsequent fault.· It is doubtless extremely satisfactory to adjust suoh an item of damage upon evidence and pres.ump,tion of such a kind. an4 in the absence offuller,appropriate testi-
GILKEY V. THE BETA.
391
many; but the general burden of proof is upon the libelant to establish not only damage, but that the damage claimed arose proximately from the collision; and this must be shown either by proof or by reasonable presumption from the circumstances. In 'ordinary cases, doubtless, the sinking of a vessel while on her way from the place of collision to the place of repair will be presumed to be the result of the collision itself, where no subsequent want of care affirmatively appears. But this presumption is a presumption of fact, which mayor may not be reasonably drawn from all the circumstances of the case. The Reba, 22 Fed. Rep. 546. In the present instance such an inference, as I have said, does not seem to me to be justified. It is not a case of sinking, such as might naturally have happened if the vessel got water-logged. Nor was it a arising in the course of sinking. Had that been the case, the captain could easily have explained it. The captain was in the situation of an expert on the spot, and acquainted with all the circumstances of the collision, and its effects on the vessel up to the time she capsized. His inability to explain it excludes every supposable cause arising from the collision, and leaves only that of mismanagement remaining. The damage arising from capsizing cannot be separated from the previous damage with exactness; but sufficiently, perhaps, for substantial justice. The gross sum allowed for raising and towing, $1,386.37, is not all owing to the upsetting. Had she not capsized, she must have been pumped out, and the water damage to the cargo and effects would have been about the same; but there is additional damage from mud, to sails, and other articles, from the upsetting alone. Upon and the evidence, I find there should be deducted $2,200, for this cause, on account of the schooner and her furniture and sails, $250 on account of cargo, $250 on account of the captain's personal effects, and $153.19 for one-fourth of the amounts allowed to the crew, respectively. 5. Demurrage. No reasonable objection can be made to the rate of demurrage allowed by the commissioner. The time allowed is liberal in any event, and disallowing the damages from upsetting the time must be reduced by at least 21 days, amounting to $672. With the foregoing deductions the damages will aggrel!Rte the sum of $14,701.48, for which sum, with interest from March 26,1889, amounting in all to 110.36, a decree may be entered, with costs.
FEDERAL REPORTER,
vol. 44.
THE EXPRESS.· THE NIAGARA. THE
N. B.
i::lTARBUCK.
THE CHARM. NEW YORK
&
CUBA MAIL S. S. CO. v. THE EXPRESS, THE STARBUCK, and THE CHARM.
NEW
ENGLAND TERMINAL CO.
v.
and
THE NIAGARA, THE THE CHARM.
STARBUCK,
{D£st·I'Wt Oourt, S. D. Nuw York. November 28, 18ll0.) COLLISION-STEAM VESSELS CROSSING-EAST RIVER NAVIGATION-WRONG SIDE-NoT SIGNALING- SWINGING COURSE.
\
The steam-boat E. was on a trial trip up the East river, running at the rate of less than eight knots, and in the middle of the river. While rounding Oorlea1"s Hook, and before she had headed straight up river for the reach above, the steam-boat N., in tow of two tugs, was seen some way ahead in about mid-river, heading somewhat towards Brooklyn. The E. two whistles to indicate that she would pass the N. on the New York side, and, getting no answer, stopped and repeated her signal, when, seeing the leading tng give a sheer towards New Yorkl the E. reverse<!t but nevertheless struck the N. on her starboard bow. The collisIOn was, on the J::Irooklyn side of mid-river. From the time she sighteJ the N. the E. had been continually swinginll" to port. The N., without steam, was in tow of the tugs S. and C., the S. ahead on a bawser, end the C. along-side the N. They had come from Ninth street, Ncw York, bound down the East river, and might have kept on the N6lw York side of the stream. The first signal of the E. was not understood by the S., though heard by many on shore. There was no satisfactory evidence of any timely signals from the tugs, arid they gave no signal of three whistles under inspector's rule 3, in order to come to a common understanding. Held, that the tugs were in, fault for the co11ision, (I) for unnecessarily going to the easterly side of the channel with the N. still headed towards the Brooklyn shore; (2) for not properly signaling, or answering the signals of the E.; (3) and for attempting to haul the N., after she was nearly across the line of the E., towards the New York shore at the time of her last signal, through probable inattention to the previous signals, and to the position and heading of the E. at the time. As to the fault of the N., question reserved.
In Admiralty. Croas-suit for damages by collision between the steambOllts Express and Niagara. Carter « Ledyard, for the Niagara. Wing, Shoudy &- Putnam, for the Express. Robert D. Benedict, for the Starbuck and the Charm. BROWN, J. The above cross-libels were filed by the owners of the steamers Niagara and Express, each about 298 feet long, to recover the damages sustained by them, respectively, through a colli,sian in the East a little before noon on December 2, 1889, just above Corlear's Hook. The steam-tugs Starbuck and Charm were made parties defendant in the original cause under the twenty-ninth rule, upon the petition of the owners of the Express. Upon the filing of the petition, the own-
lReported by Edward G. Benedict, of the New York bar.