THE
BOLIVIA.
189
at the foot of Twenty-Fifth street, says that she went about off TwentyFourth street, and that the collision took place off Twenty-Sixth or Twenty-Seventh street. Any estimate of his as to distances away from him, in the same direction, is as fallible as such estimates usually are; but it seems hardly possible he could be mistaken in the statement that one of the places he indicates is above, and the other below. his own point of observation. It seems a fair conclusion from the evidence that the sloop had sailed on her new tack, at least lIS far as from Twenty.. Fourth to Twenty-Sixthlltreet, which gave the tug ample time to conform het own navigation tothe change of the sloop's course, if she had seen the latter come about, as she should have done. The decree of the court below is affirmed, with interest and the' costs of the appeal to be paid by the appellant, and the cause remanded for further proceedings td be there taken in purl!uance of this opinion. "I.',
<
f
·
. THE
ADAUSet al. ". THE BOLIVIA. (Olrcuit' Court Qf Appeal8, Second C1Ircuft. December 14, 1891.) . 1. COLLISION-FoG BIGNALS BY BAILING VESSEIr-}{EOIIANICAL FOG-HoRN. By a co111sion, during a tog, between a steam-ship and a schooner, the ceived injuries from which she sank. The schooner bad no J;Dechllni6al fog.horn,. and, tho'ughtbe horn which sbe had was sounded, it was not heard by ,thOSe ,in chllrge of the ste&m-ship. IieW, that the failure of the schooner to hllve andQse an efficient fog-horn, to be sounded bv mechaniCl\1 means, as required by statuW, was at least a contributing cause of the collision. d ,, 2. SUIlE-REDUCING RATB OP SPEED OP STEAM-SUIP. A steam-sh;p,failing to reduce her speed, when going through a fog in One oftbe main lines of ocelln trllvel between New York and Europe, to such a rate as will admit of her being brought to a stand-still within the distance at which, in the condition of the fog, she can discover another vessel, is of a fault rendering her responsible for dllmages in. case of a collision which might hllve been avoided if hel' speed blld been less. . ' 8. BAME-}{CTUAL'FAULT-DIVI8ION OP DAMAGES. . Where the loss of a schooner by collision with a steams);Jip in a fog is. caused bl an improper rate of speed on the part of the Bnd the want of a proper fog. horn on the part of the schooner, the d&mages must De divided. 48 Fed. Rep. 173, reversed.
Appeal from the Circuit Court of the United States for the Eastern District of New York. In Admiralty. Libel by Robert B. Adams and another against the steam-ship Bolivia for the loss of a schooner by collision with the steamship. The libel was dismissed. Libelants appeal. Reversed.· Edwa:rd L. Owen, for appellants. HarriJngton Putnam, for appellee. Before WALLACE and LACOMBE, Circuit Judges.
170
FEDERAL REPORTE:B.,VOI.
49.
,W.. Judge. This is a,libelbythe owners of,the schooner Eva I.S,mith:to recover for the loss ofthe vessel, her cargq andfreight, and the persm:uu ,effects of her omcers and, crew, in a collision with the, steamship Bolivia. : The libelwlU! dismissed by the4istriqt court., The colljsiQn took place about off Fire island, June ,1889, about 11 ;,40 A. M., The, schoonel',atthe ,time of the collision;.lW1sbound from: Bichmond, Me.,t<tPhj1adelphia, laden with a cargo, of 41e. The Bolivia:w8S proceeding from Mediterranean ports to New York.;Sbe built,for carrying passengers ,and freight,B.I)d, was,about,4QPJeet long., The weather was'very foggy. The wind Was light, and from,tbesouth-wellt.The schooner.wall close hauled and 2 or 3 knots on the starboar9 tack, an bQUiI'T:iJ'he,steam-ship was on a W. byN.. !Jlld under a speed of about 7 or 8 an hour. Thefog;set in al:!outhlAAf an hour before the collision. The steam-ship had been making about 11 knots an hour before the fog set in, and then her speed was reduced to that which she was maintaining at the time.of the collision. ' The lookouts were doubled, the passengers forward were sent aft, and the engineers were doubled on the watcll below. and ordered to stand by the engines. When going at a speed of 11 knots she would, run: aboQt,<tlengths of herself before stopping, when the order to stop and reverse was executed as promptly 8S possiblej and going she would run about 3 lengths. The schooner did not have any mechanical fog-hom. After the fog set in, her blowp at proper i,ntervals, forwar,d·. ,Her men heard the fog signals of the steamer several times before the steamer was visible, and on each.oooasion the schooner's h'Orn,was immediately sounded in the of schoo1;1er was not an effi. mentone. IHthad beEm, under the conditions ofthe wind,it would. in by Bome of those. in, of the steamer. AS' it was, norie of'them heard it·. · They discovered. ,the schooner as soon as she was visible in the condition of the fog, and· she was then 300 or ,4:00 schl?o,nersaw the"lltel:tmer she was twice, that distance away, probably 'because the fog was denser on the deck of the steamer thitli'it was lower down on the schooner's deck. As soon as the schooner was discovered by ihe steam-shi p she ported, to go under the and her enginesj but,although she nearly schooner's st,e unable to avoid her, and struck her on the port side, main rigging, cutting her down to the water's edge, and the schooner shortly thereafter sunk. The schooner was plainly in fault for not complying with the statute, ,whioh, since 1885, has required ,vessels to be provided with an efficient fog-hom, to be sounded by mechanical means. Act March 3, ',1885, (23, St.-p. 438, 0."854, .art.12.y ,By presumption of law, as she wasatthetime.of the collision in violation of a statutory rule. intended to preveIit,collision,hel,'.!faultwas.lI.t lenst a contributory cause of the disaster. Under the circumstances of,thepresentcase, it. seems more than probable that, if she had been had properly used such a fog-horn as the"gtatute prescribes, ,the 'steam-ship would ,have
rn ,
THE :BOLIVIA.
171
heen notified of her;proximity, and could have reduced her speed to the lowest rate consistent with her ability to control herself efficiently in a. moment of peril. The steam-ship must also he held in fault hecause she was not going at a moderate speed in the fog, under the special circumstances and conditions, of the (',sse. Act March 3, 1885, (23 St. p. 438, c. 354, art. 13.) She has given no evidence to show what speed she was required to maintain in order to keep steerage-way, and none to show that at a lower rate of speed than at 7 or 8 knots she would not have been under efficient control, and able to govern her own movements promptly and effectually. Under the existing state of the fog, and exercising the hest vigilance, she could not discover another vessel more than 300 or 400 feet away, yet maintained such a speed that, after reversing, her headway through the water could not he stopped within three times that distance. The locality was one frequented by numerous vessels in the coasting trade, and lay in one of the paths of the ocean traffic between Europe 'and the principal commercial port of this country. The steamship had but just passed a, sister steam-ship of her own line, hound in an opposite direction; and the schooner had seen' or heard several vessels during the previous half hour of the fog. Under such circumstances, it is not enough that the steam-ship moderated her speed; she should have reduced it to that moderate speed which was safe and prudent, in view ()fall the circumstances and conditions of the case. The rule is firmly established in this country t and also in that the speed of a steam-ship is not moderate, at least in localities where there is a likelihood Of meeting other vessels, if it is such that she cannot reverse within thA distance at which, her engines and he brought to a in the condition of the fog, she can discover another vessel. The Colorado, 91 U.S. 692; The Na,coochee, 137 U. S. 330, 11 Sup. Ct. Rep. 122; The Europa, 2 Eng. Law & Eq. 557; The Batavier, 9 Moore, P. C. 286. We cannot agree with the opinion of the learned district judge that the fault oUhe steam-ship was not contributory to the collision. The burden is upon. her to show that it was not, and from the nature of the case this cannot be done. If she had been going slower, she would not have reached the place of the collision when the schooner was there. If. going at the speed she was, and seeing the schooner as she did, she was able to almost clear the schooner, it is obvious that going at a less speed, under equally efficient control, sh,e would probably have been able to avoid the schooner wholly. The facts are very similar to those in The Penll/lYlvania, 19 Wall. 125, where the collision occurred in a fog about 200 miles from Sandy Hook, between a bark, going very slowly and ringing a bell as a fog signal, and a steamer, going at the rate of 7 knots. The court divided the damages, holding both vessels in fault; the steamer, because not maintaining moderate speed, and the bark for not using a fog-hom. The court in that case applied the rule that it is to be presumed against a vessel which, at the time of a collision, is in violation of. 8 statutory rule intended to prevent collisions, that her fault was at least a oontributory cause of the disaster, and that the burden rests upon
lt72
J'EDERAIt REPORTER,
vol. 49.
her ofsbowing riot merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. We regret to have to apply the strict rule of the authorities in respect to moderate speed in a fog' against the steam-ship in favor of a vessel that neglected to provide herself with any adequate means to enable the steam-ship to disco\Ter and avoid her, or for her own protection, or that of other vessels, in a fog; but we must conform to the law as it has been enacted and construed. The case is one for a division of the loss. 'Fhe decree below is reversed, and the cause remanded, with instructions to; ascertain the damages, and render a decree for the libelants, dividing the damages, and for half the costs of the district court and the costs bf this ·court. L·: ,
l'
S'orATE OF CALIFoRNIA, CA. M. SIMPSON et al., Libelatits.) (PACIFIC .:," '(Oircuit Court
COAST S. S. CO., Libelants.) Circuf.t. January 19, 1892.)
0/ Appeals, Ninth
1.
&
. the saIlle place. No lights were observed on the. barkentine, and the l;Ilaster of the ,. steamer, supposing that the 'courses of the two vessels were nearly parallel, nei'. 'therr$Versed his engine nor slackened his speed, but steamed on his course at the ratA;! of 18 knots an hour. The night was but clear, and the courses of the vessels'Were, in fact. nearly at a right angle. .The barkentine was on the starboard tack,. sailing close-hauled upon the wind, and continued her course until thestea.mer was within 800 .yards of her, and apparently about to strike her amidships, when she was luffed into the wind, thus slackening her speed, and turning : her. bowtQ'starboard and', away from the steamer. The latter, without hel' QOu,rse or abating her speed, undertook to steam across the bows of the barkentine, when they collided, the bow of the barkentine coming in contact with the steamer :jlist ,abaft her beam, and both were seriously injured. The lights were burning.on the barkentine, but the proof was not satisfactory that they were sufficient; add such as required by law. Held, that the steamer was in fault, on sighting the Sail, in not reversing her engines, or slackening her speed, until the course of thl! bark;elltine could be certainly ascertained, and then it was her duty to keep out of the way ; and therefore the damage occasioned by the collision ought to be divided. 2. FLARE-P'P, WHEN 8HOWN BY SAIL-VESSEL, , . Sectfbn 4234 of the Revised Statutes, requiring a sail-vesselto show a torch on . the' quarter on· which a steam-vessel is approaching her, is superseded by article 11 of the "International Regulations, " so far as the high seas and the coast waters are conce,rned.
Oil the morning of 1886, the.steam-ship State of California was bound for !, San Francisco, pointsAprila7, starboard bow, and 'near heads, sigbte.d the barkentine and, when short aistance outside the l: PortllLUd, two' off her two miles distant, bound for
Cc;>LLlSION....DuTY OIl'.STEAM1llROY MEETING SAIL-VESSEL.
r
FiNDINGS 011' FAC'!' BY THill CIRCUIT COURT.
Tpe law the suproUlecourt, on an appeal in admiralty, to a .review of the 1il).dings of ,the CIrcuit court, On liuestions of law merely, does not apply to this court.
($yllabusby the Court.)
.Appeal from the District Court of the United States for the Northern District of:California. : In Admiralty. Cross-libels between A. M. Simpson and others, owners of the. barkentine Portland, and.' the Pacific Coast Steam-Ship