FEDERAL

:yol. 48.

ullu$l ordinarYltraof$portation of chalk cargoes. In the discharge of Qrdinary cargoes, Vessels of her si,zeuse at least two hatches, and der the charter the was entitled to do so despite the evidence of a contrary practice having reference to smaller vessE!ls and smaller cargoea. We do not think, however, that the Glenfinlas lost that right, at her first wharf., by not breasting out, in view of the evidence that she was attendeduby lighters which, could easily have taken caig;o from two hatches at the same haa they come together. The rl;l.te of discharge from during .the fl1ir weather, both at the and at TaiI1tor's doclt, was ,200 tons or a little over per day. It must be ferred o,t least 400 tons from two hatches, which woUld ,give eight lay..days, and a day may be allowed for removal to th,e: secon:d wharf. The lay-day!! began Tuesday, July 9th, and expited (including t1;le Jor removal) on Thursday, July 18th. She was 15 days Illore, for which she should be allowed the de. mumge Iltthe. rate by the The cause is remanded for further proqeellings, in, with views herein expressed. ' Costs of the district court and of this court to the libelant. .

THER. R.·· KIRKLAND.

MALTBY". TliE

R.R.

KIRKLAND

(DfBtrl.ctOou'l't, E. D. Virginia. January 7, 1880.)

1.

On a nIght of moderate darkness, and in the open sea, a tug struok a scbooner on ber starboaJ'(1! eide forward"probably at an acute angle.. The tug's lookout and who saw the schoonllr froIll a minute and a half to two minutes before the 001lision, and at 8 distanoe of over 500 yards. testified that she showed no lightshand they sUPPOllad sbe was, going tbe same witb tp.emselves; but tbe elm was notpOl'tedor the engineer until an instant before the oontact. The sohooner'S erew 'tlestifled'tbat her lights were up. Held that. under the rules requiring Ilteam-vessels to keep out of the way of sailing vessels, and to stop and reverse if necessary wben' approaobing anotber vessel, and requiring an overtaJnng. vessel to keep out of the way of the vessel preoeding bel', the tug was in faUlt, irrespective of the question of the lights.
SAME-EvIDENOE-ADMISSIOJ!l'S OIl'. LOOKOflT.

piD . SAIL-n'uTY 0;

Toil.

2.

Unsworn admissions made by the lookout of a vessel the day after a collision a1"& inadmissible as eVidence to obarge the vessel with fault.
,

8.' SAME....DflTT OIl' Lo'OKOUT.,

W}len thelook.out of a steamer resorts to tbe pilot-house,he subjeots bimself to. the suspicion that he is tllere largely for hie own oomfort.

In Admiralty. Libel by O. E.Mllltby against the steam-tug R. R. Kirkland for damages for a collision. Decree for libelant. Sharp Hughes, for libelant. ElliB Thom, for respondent.

«

HUGHES, J .·. The schooner J. J. Housman set sail from Norfolk on the morning of the 8th September, 1879, at or about half-past 1

THE R. R. KIRKLAND.

761

on a fishing expedition to the Chesapeake bay. Her crew was a captain, a mate, a man before the mast, and a cook; and she also had on board three fishermen, a book-keeper, and one passenger. One of the fishermen, Roy Thomas, acted as lookout in the forward part of the . vessel throughout the trip. This night was moonlight, but not bright; the "mOon had entered her last quarter atlOh. 33m; P. M. on that night. There were frequent fleeting clouds. The vessel proceeded through' Hampton Roads into the Bay, and at about 4 A. M.wasmoving in 8, l)orthetly course, heading a little to the westward of York Spit light, making eight miles 80 hour, with a fresh breeze from about south.west,. whim she came incollillioll with the steam-tug R. R. Kirkland; whioh struck her on her starboard side, forward of amidships, probablYiat an acu'teangle of about 30 deg., by whicb her bull was broken into, and she was sunk at the place of collision. The testimony of her lookout, Thomas, is positive, and particular that her ligbts were both up and burning brightly. The testimony of her' master, Garrison, corroborates Thomas in so far as it asserts that· the red light, which was the only one visible from her wn where he was standing, wasupalld burning. el The testimony of several persons on ,board of her is that they saw the lights put up in good order and in proper position as the \Tessel was leaving Norfolk harbor at half past 1 A. M. On the other hand, the testimony of the pilot, the engineer, and the fireman on the tug is equally positive that when they came in sight of the schooner, one and one-half to two minutes before the collision, they saw no light, especially on that side of the vessel not hidden from them by her sails. Just before the collision the tug was moving nearly due south at the speed of nine knots an bour, and shortly before the moment of collision the pilot, Dougherty, had ported his helm. Themaster ofJthe. tug. had, about 25 minutes before, laid down in the rear parili of the pilot-bouse to sleep. He was aroused when the vessels were nearly in gave foUl' bells to the engineer just at the time ,of the col" lision;The mate,Daniels, who was the tug's lookout, bad been iothe pilot-bouse during tbecaptain's nap, llnd would seem. from the pilot's testimony, to have seen. tbe schooner before tbe pilot saw her, ane and one-balf to two minutes before tbe collision, and had given no signal to the engineer. Tbe evidence- of the men on the schooner is tbattbe night was light, but not bright; that of tbe men on .the tug is that. it was datk. but not very dark. I am to consider and, decide the case on tbe statement I have tbus drawn up from the testimony. variant as to the character of .tbenigbt, and directly contradictory as to tbe question whether the red and green lights of the schooner were properly placed and burning. I will add that the lights of the tug were as they should have been under the rules of Dln'igation. I will premise that I bave rejected the evidence ofSharrett as to wbat be saw as ail expert when he went on board the Housman in the barber at Norfolk on tbe nigbt before his testimony was taken,(28tb November, 1879,) on tbe point wbether the lamps ('.ould be Been from tbe belm- wben up in theil' proper I Will, .not, say

762.'

REPORTER ·. vol.

48.

of

tDe bhdracter of hearsay, cannot be subjected to proper restrictions, and

circumstaQces I would reject "uch testimony, but,it,

Qughtgenel'ally to be disClil:rded. Though I consented at the hearing of the' a:rgument to treat as;e'1jdence the mere fact that Daniels, the lookout, who,was 1l0t.$WOrn as a witness in the case, made statements the day after the collision prejudical 'to the respondent, declaring at time that it would have little wejght with the court, I have changed that opinion, and think all testimony as to admissions after the collision sh()uld be stricken. out,. and disregarded. I have given them no consideration whatsoever ill other evidence. In regard to the question of the proper place for a 190kout on a tug-boat of the size'and build of the Kirkland. I hold here,as] did in Thej{allisto Case, 2 Hughes, 142, tbathe ought to beat such moment just wbere he can best make proper observations as a lookput .at .that moment, whether it be in or out of the I am inclined to think, from the evidence in this case, that the pilot-house is as good a place for observationa8 any in a steam-tug;: and shall not rule that Daniels. lookout here, was at fault frotrl the mere fact of being there in .this instance. But in general, when the lookout of a steamer resorts to the pilot-house, he SUbjects bimself to the suspicion that he, is there largely .1or bis own comfort, and I do not thin.k, tpe courts will or ought to encourage the proposition that the pilot-,b;()use, even of a tug, is the right place for a lookout. 1 come now to consider. tbeJlllse on that scant part of the. tel'ltimony which is undeniable, and which I have eIlilbodied in the the case which T have made ,above. 'fhe case turns upon the following laws of navigation. Before 1864, these were not laws imperative and binding upon navigators and courts, but were of prudence, recommended by the experience of navigators, and enforced in cases of breach more or less gross by thecpurts. They are/now statutory laws of navigation enacted by and. by tbe legislatures of all commercial 'Colm,tries, which commanded to observe, and which courts have no. option but to enfor.ce,unless in cases coming clearly rule 24, which allows a depllitture from them only where it 1& necessary to avoid immediate dange;r., ,These rules of law governing the case at bar are;as follows: d1Bule'20. If two ,vessels. one of whicl1 lIS a sail· vessel and the other a steam-vessel. are proceeding in such directions as to involve rillk of collision. thesteam-vesael slJalJkeep the \yay 9f the sail-veesel. "Rule 21. :Every steam-v,essel, when approaching allother.vessel. so as to trlVt>lve risk of collision. shall slacken bel' speed. or. if necessary, stop and )leve",e, II etc;· . . ' i ] '!'Hille 22. EV'ety vessel'ovedaking any other vessel shall keep out of the ''Naylor the last-mentioned vellsel. . ,., 23. Where by 20 and 22, one .of the two vessels sball keep, out way. the other lteep, her course. II etc. " .a'he fact whether theiSoboQoe:r'ssailing lights were up or not, being unascertainable. fromt'hedjre<;t evidence reli'pecting the lights, the AAse turns upon other poin,ts affected by the rules of law just quoted.

763
The defense of respondent isi ihat, when the scboonerwas seen, the crew of the tug saw no lights, and concluded that the schooner wasrnoving in the same direction as themseh-es; that is to say, that the tug was «overtaking" the schooner. The tug'eduty, therefore, was\under rule 22, to keep out of the way of the schooner; to do everything necessary to that end; and the question arises, did the tug do everything or do anything40 insure her keeping out oNhe way of the schooner? The'testi. mOAyls:tbat,she did not port her helm until juet before, or strike her four bell$' until· just at the time of, the' collisionj although, as the testimony rososhows, she saw the schooner one and a balf to twoll)inutes before the 'Collision. At a minute and a half before, the vessels, one of thennnoving' eight miles and the other nine miles pel' hour, were 547 yards'llpartjyet during the interval, according to the accountigiven by Dougherty, the tug's pilot, the following is what oeourred: "Mr. Daniels [the lookout and mate] was sitting on the starboardflide of the wheel-house. I put my hand' on the window to look out for Back River light. Daniels asked me if I saw the light plain. I said,' Yes.' Daniels asked me if I saw that vesst-I. I told him that I saw something like a vessel, - 8 100m of 8 vessel. He then asked me if I saw a light, and I tolu bim. · No.' ,He then said. · I can't st'e any light;' and he had night glasses in his hands.... He asked me if I thought which way Shll was gomg; and he said she must be going to the southward, the same as we are, because I BE-e no lights. $0 ht' stated to me to keep off inshore. to go inside of him, and give the right of way. I done so. and before we had time to get oneruove [of the Wheel] the vessel was coming right across our bows. Mr. Daniels then called Captain I.,owell from the louiige where he was lying or sitting.-I don't know which,-and Captain Lowell pulled the bell to back the boat immediately. AS,soon as the bells wel'e struck we were into the vessel." This same witness (the pilot, Dougherty) says" in another place, that the helm was ported about one minute-not exceeding two minutesbefore the bells were struck. It is evident from this statement that Daniels had seen "that vessel" before Dougherty did, and called his attention to it; and that some conversation-apparently leisurely conversation -had occurred between them before the helm was portedj and, further, that they were so slow in porting the helm that the schooner "was right up across our bows before they had time to get one move of the wheel in porting." Now, it seems to me, from the foregoing, that, on the supposition that the tug was "overtaKing" the schooner, the men in charge of the tug, Daniels and Dougherty, did not do what they were bound to do in order to keep out of the schooner's way. The law requires that its commands shall be effectively obeyed. It does not tolerate a listless or tardy, imbecile obedience. And it is a cardinal canon of the admiralty law that the rules' of navigation which it prescribes must be efl'ectively, promptly, energetically, and faithfully executed. There ought not to have been a collision in this case. The two vessels were in an open sea. Even if the vessel had not her sailing lights up, (which is the question in dispute,) the tug was bound to keep out of the way, if she saw the

FEDERAL RJl:PQRTER,

vol. 48.

sufficient time to,do ·so,.; Jl'he absence of sailing lights could only have'misled the tug as to the direction in which the schooner was moving;apd., ,on the hypOthesis that the lookout and pilot of the tug were thus D;listaken, the tug's shows that she failed to do what was necessary effectually to keep out of the way. I take the case as it actually was,-that of a steamer and sail-vessel such dirootions as to involve risk or collision. In that proceeding case the law J,"equires ,the sail-vessel to keep her course, (rule 23,) and the steamer to keep out of the way ,Qf the sail-vessel, (rule 20.) It il!! not.denied---it is provec:l,..-that· the schooner complied with rule 23. She did keep her course. The steam,er, on the other hand, did not keep contrary, ran into and sank the schoonerj out of the way, but, and that in open sea, after the schooner had been seen for from one and a half to two minutes,,..-seen when at a distance of from 500 to 900 ; The testimony of the pilot is that he could turn. his boat 8:wund in the sPilce of 100yardsj thatln this case he could have cleared the schooner in apout a hundred yards; indeed, that he could have,cleared the·schooner ill three points of the compass,-that is to say, in 3-32 of a complete circuit of 100 yards diameter. If, then, they saw the schooner one and a half to two minutes, or from 500 to 900 yards pff, and yet tan into her, how can I be expected to hold otherwise than that the tug was in fault. and must be held for the damages resulting from this collision? I will so decree.

THE THINGVAu'A.

,I'll. re

'.

,,' of

THINGVALLA..

" -

-

Second Otrcmit.

,

"

-

-

December 14, 1891,)

,

i. ..'

2.

On an issue ajl to whether a before a colllsion, showed a white light at her mast-head, the positive testimony of witnesses that the light was proper1y burnin!l" there immediately before and after the collision is Dot outweighed by testimony of witnesses on the other vessel that they did not see the light, nor by the '.' , ,suggestion that *e light was so hung as to renderit liable to be obscured by the , foretop-mast stay-sail. , , ·
, i',

"

"

,

"

On tbe qU'estroti as to the proper placing of the mast·head light of a steam-ship, ·her,f1.rst offi(ler, ",ben "How far off Qanyour lights be seen at nightl" answered, "You can see about 8 miles off,-the head-light; that mast i820 feet high." Held, that the part of the answer relating to the height of ' the mast was not responsive, and, being the only evidence relied on for tbe pUqlose, was insufficient to show that thEl light was not placed at a height above the deck of 46 feet, the width of the'beam. ' The ste):UD.-ship 'l'lIingvalla. when in mid-ocean, discovered the white light and both side lights of an approaching steam-ship. the Geiser, so situated as to indicate to the naVigator of the Thingvalla ·that the· two vessels would meet end on,
,

OF

MAST-HuD LIGHT-EviDENOE.

" ,

II.

SAIIlE-STEAM-8mpS' MEETING.

0"