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

THE SUTEOF CALn'ORNI.A;,

173

pany, owners of the steam-ship State California, for damages for a collision. The owners of the barkentine Portland appeal from a decree of the circuit court affirming a decree dismissing their libel, and awarding damages on the libel of the owners of the State of California. Reversed. Mr. E. W. McGTaw, for the Portland. Mr. George B. Merrill, for the State of California. Before DEADY, HANFORD, and HAWLEY, District Judges. DEADY, District Judge, delivered the opinion of the court. About 4 o'clock on the morning of April 7, 1886, a collision occurred between the steam-ship State of California and the barkentine Portland, a short distance outside the bellds of the San Francisco bay. iThe night was dark and clear, and the lights on Point Bonita, Point Reyes,and Fort Point 'Were pla.inly visible. . 'Both vessels were bourtdin,and each was aware of ber position. The wind;.wasnorth-oosterly.; .The course of the bal'kentine was about N. by W" and she was close-hauled on her starboard tack. The cOurse of' the steamer was E. by N: From this it will be seen· that the vessels were approacbing each other at nearly a right angle. The steanier, While attempting to cross the bows of the barkentine, collided with her abaft her beam, on the starboard side. The barkehtine was <lut dowI1 from the bowsprit, below the water. In a few minutes after she was struck the vessel was water-logged, but, being loaded with ber,she kept afloat, and wllstowed in. The steamer had a hole stove in her side 8 or 10 feet in diameter, but by shifting the passengers and cargo, which consisted largely of wbeat and' flour, to port, she managed to get to her dock without injury theretO. On July 26, 1886, A. M. Simpson and others, the owners. of the barkentine, libeled the steamer on account of said collision;and:oll September 13, 1886, the owner of the steamer, the Pacific Coast SteamShip Company, libeled the barkentine for the same cause. On December 3,1889, the libel in case of the steamer was dismissed, and the daimant had a decree for costs, and in the case of the barkentine the libelant had a decree forthe damage suffered by the collision,andreferring the case to a commissioner to find the amount thereof. On March 31, 1891, the commissioner reported the damage to the steamer :lit $8,880.30, and on July 23, 1891, the libelant had a decree for said darilages, and for demurrage $3,076.05, with interest thereon,amounff. ing in all to the sum of $15,165.65, with costs. 0nDecember 11, 1889, the libelant appealed from the decree of the district eourt (46 Fed. Rep; 877) dismissing the libel in the dase of the t3teamer, and on July 20, 1891, the circuit court affirmed said decree, and dismissed the libel. The material findings of the cireuit court are "td'theeffect that the lights on the steamer were in good condition, and 'Welie seen by the men on the barkentine half an hour before the collision; that the red ligh+ of the latter was not displayed, orwlts burning

of

dimlYitl:lat the:ea.il,of the :portland !W8SSeen by the master and lookout of the 5 minutes befo,l'e the collision, while she was about a mile and ",' half distant, 'and "the absence of the red Hght led the master of thel'lteamer to believe that the two vessels were sailing ,on nearly the same course, and therefore he did not reverse his engine, or slacken speed;" that the steamer was rUllning,at the rate of13 knots an hour, was 315 feet in length, and could have been stopped in 5 times her length; that if, op firstsightingthEj the engines of the California had been reversed, the collision would not have occurred, but she neither revfflleclher engines, slaokened her speed, nor changed her course; tqat'he Portland had a torch em board, but did not exhibit it, llor was it that of the Portland were such as were requir#d, ,by the United Statutes; and that, about 5 minthe Portland was, by order of the mate, luffed into the wind, "thereby arresting her headway, and tbrowing her more J,nto the ,traQltofthe steamElrj" and concluded that the collision resulted from the neglect, ,of the Portland to show a proper "and sufficient red light." ,: Upon theaefindings thefl,teamer must be held in seriollll fault, in not rev:ersing herengi,nes or slackening when the lookout reported "a' slililon. ,the Stllrboard ,bo",." The nlaater had no right to suppose that the vessel was on the same cO.ursewith the steamer, and theretore there was no danger of collision. Seeing no light at ail, he had no right 1'.9 indulge, in any supposition. It was his duty to stop at once, or slacken his speed, so as to simply hold ,hlsway until the course of the barkentinewa!ilRscertained. " " "T/1,e Herm,a1J,n, 4 Blatchf.441j Co. v. Caltlerwood,19 How. 245; LouiBiana v. Fisher, 21,How. 5; The Illinois. I) Blatchf. 258; P'ingOn v. Blethen, 11 Fed. Rep. 607; The Ancon, 8 Sawy. 334,17 Fed. Rep. . ·.. The.International Reg91ationa. are.aJsodecisive of the question. tiCles 17 and 18 are as follqWa:

.

Ar-

"Art. 17. If two ships. olla 'of wbich is a sailing ship and the other a !irtl prucel"ding in lluch direction as tp involve a risk of collision. shall keep Oll,t of way of the sailing,ship·· Art. 18. Every when apprullchinganuther ship S(),IlS to involve risk of collision. shall slacken her speed. outup and reverse. ifnecessClry." . 23 St. p. 441.

; "'J,'4e barkentine was some

tp involved· .'

tWQ pointsofJ' the'st4rQoard bow of the well.belRsshe was, sailing on: 8;<X;IurSe convergent steamer, in ,which case the ,risk of collision was certainly

by the appellant that, on the, facts foand, there should a division of.tlle4amages on grot111Pof th'e manifest fault steaDier. . here that :we dqnot <1onsiderthaact of February 187p,(Supp.Rev. $t.135,) ,which m",keEJ the findingoffactaofthe circuit court conclusivE;1,l}Jon the SJlpreme cour,t,applicable to an appeal from a, circuit ,C()9I:t ·.

THE BTATE OF CALIFORNI.C

175

·The act> organiztng this' court (section 6) gIves it "a'ppellilte jurisdiction to review by appeal" all cases in adIhiralty,-to review them by appeal, unqualifiedly, in which the case is tried de navo,on the evidence, and not upd11mere question bflllW. , The question is only material in thecuse of a decree given in a circuit court·. on a.ppeal from It-district COl'lrt, 'prior to March 3, 1891, the date of the act organizing this court; as sincethat timeno appeal is allowed from the district to thei'circuit courts: -Section 4. So the provision in section '11 of the act coneerrting "methods and systems of review"i$ prospective, and doesn()t' apply to appeals in admiralty from decrees pronounced under the old law. ," ,. '. .W86' found in the -circuit court tha.t the barkebtine did not displat a,'torch.light, as provided hi section 4234 of the Revised Statutes, which requireS such light to be ljfuoWl'l -by a sail-vessel on the a pproach()f a on whatever·quarter.ittnight be approaching.' :BUtJhis sectibnis'superseded,as'tovessels onthehigh seas and of the United States, by article n of thi3'InternationalRegulatioDS,which ,; . ,,' , ' .', -, ;'J teads: ., - II A 8h,Ip whicb ISbeil)fbWertakeri bY'anothersball frombi:lr sterp'to BllcMast-merltioned sHip jt',wbtt:e:fj'ght, oNfllare-up 'light." The AZgt8;VJ.' 88
'1'he ]Ja;ce'lsWtr'. 38 Fed. Rep. 555.,."

'

"

The bRtkentlnewas' ifi the ooasfwatEits of the United States, ilnd*as not being overtaken by the steamer. ,(,' The case of the barkentine comes here direct from the district court, on the evidepcli'l" wqi(}h-lDakes acaileID()re ,favoJ:.able: for her than the findings in the circuit court l For instance, the circuit c0111't ioundthat, 5 minutes before the coliisioh,lhe barkentine waelhfl'ed up into the wind, whereby her bendWay waS stopped, and she moreiintothe track· of the steamer. '.The mate, .Peterson, teliltifies that;: aOOut'1)' minutes before· the cOlliSion, he gave the order to- putthe close to the wind., . His possible he is: about the time, and that th(J' order was givenJess than 5 minutes before tbe collision. It- was given when the steam.-ship was about 300, yards distant ,from the barkentine, and appar-entIyulbQuHo strikehel'amid.ships; but the longel'before theoollision ihebetteMorthe caseoftbe barkentine. The putting her more ag,ainst the wind had a tendency:to stop her did reduce her speed to 2 or 3 miles an hour. At the moment of the collision her sails were aback or fluttering. This slackening of speed gave the steamer more time to cross her bows, and reduce the force of the impact, when they came together; and so far from the luffing throwing the barkentine more into the track of the steamer, the contrary is true. Her bow swung to the starboard,-to the right,-and if she had swung half round in the same direction she would have been parallel to the steamer, and no collision would have occurred. It was the general duty of the barkentine to hold her course; but when the mate saw the steamer was crossing her bow, and likely to collide with the barkentine, it was his right and duty

vot 49. (lalamity. .Articles 23, 24, 23 St. p. 442. Notwithstanding, the steamer forged ahead on her course, at the rate of 13 knots an hour, when a slight deviation to port would have sent her clear.ofthe barkentine, and prevented the collision. As to the lights on the barkentine, the weight of the testimony is to the effect that they were in place and burning; but the testimony is not satisfactory as to.,.theircondition or quality. The libelants were practicallychallenge4, on the h13aring, to bring the red light into court for inspection. They failed. so, and reasonable inference is that.it would have been found insufficient. · The case is. oneof mutual fault, and the damages must be divided, by requiring half the difference of the respective losses, if any,to be by the. ,olle sustaiping the lesser loss to the qther. The Oregon, 14 Sawy. 466, 4:2, Fed. Rep. 45 Fed. Rep. 62. 'fhedecisioq of this' court is that, in the case of the stea-qler State of (..$..: Simpson ll:nd .others,)ibe).ants) the decree ofthe circuit court is reversed, and the cause is remanded to that court for further with this opjnion; and in the case of the barkentine(the,hcifiQ' Coast Steam-Ship Company, libelants) the decree of the district court is reversed, and the CauSe is remanded to that court, the libel, and enter a decree iI;J. favor of the claimants for costs.
,

to dowbatever seemed most likely to avert or diminish the impending

J ,

JrlGTIONFOR A MODIFICATION of THE DECREE.

25,

DEADY, District Judge: The order for a decree is modified as follows: The decree 'ofthis court will be that the decrees in: the cases of TM POrtland and The'State of Odlifornia are both reversed, and that they both be remanded to the district court, and there consolidated and tried as one calle" UpOn the question of the amount of damage sustained by the Portland and State of California, respectively, by reason of the collision; and that. ifeither is shown to have sustained more damage than the other, the lesser sum, with the costs of libelant in such case, shall be deducted from the greater sum, with costs, and the party. sustaining the greater loss shall have a decree for the one-half of the remainder.

INTERSTATE COMMERCE COMMISSION RYCROFT
V.

V.

LEHIGH VAL.

B. 00.

177

GREEN.

February 8, 1899.)

(O£rcutt Oourt, S. D. N61/J York.

RBMd'VAL PFCAUSES-ExTENSION OF

,In view of the Code rules and practice of the courts of New York, an extension of till)e to answer by order of court extends the time for removal.

Tnm

TO ANSWER.

At Law. Motion to remand. Henry ThmnpsDn, for the motion. W. Wickersham, opposed. Circuit Judge. It is the law andpractice of thi!l circuit of time to answer by order of cQurt, whether made on that an stipulation or not, extends the time for removal. This was settled practice here before the decisions in other circuits, which are referred to on the and, in view of what an "extension of time to is under ,ilie rules and practice of the courts ,of this state, seems conformableal,ike ,to the 1etOOl: and the spirit of the rem,ova! act
,

(

INTERSTATE CoMMERCE COMMISSION

v.

LEmGR

VAI. R. Co.'

(Oircutt court, E. D. PennB1/1IIJanw.. January 15,1892.)

1.

The ful:ding of facts in a report by tbe interstate commerce commission has no greater weight where the. commission itself proceeds by petition under section 16; 24; St. at Large, p. 884, to enforce obedience to its orders, than where an individualaggrieved' so proceeds, and is not conclusive evidence of such facts. Kentucky, etc., Bridge Co. v. LfJutsvUle, eto" R. Co., 37 Fed. Rep; 567, follow(ld.

CoMMERCE COMMnlStON-FINDING OF FACTS.

B. SJ.ME-DISOJlEDIENOE OF ORDERS-INJUN;CTION. A preliminary injunction to restrain a carrier from disobeying aD. order of the interstate COmmerce commission will not be granted in proceedings under sootion 16, 24 St. at Large, p. 884, as amended, when the answer denies the on which the order was b a s e d . ' ,

In Equity. Motion for preliminary injunction. Petition by the interstate Commerce commission to restrain the Lehigh Valley Railroad Company from exacting an alleged excessive rate for transporting coal from the mines to Elizabethport. Upon complaint by Coxe Bros., miners and shippers of anthraCite coal, the interstate commerce commissioti had made an order, after hearing both parties, establishingrates for the carriage of coal from 'the mines 'to Elizabethport, lower than the rates previously charged. and declaring the latter excessive. The Lehigh Valley Company continued to charge its old rates, and this petition was filed to enforce obedience to the order. Motion denied, without prejudice to complainant to file replication, a.nd
Reported by Mark Wilks Collet, Esq.; of tbe b4r.

v.49F.no.3-12