952

FEDERAL .BEPOltTER,

voL 53.

case, I tlrlnk that this interest also should be allowed. The libelants were constantly urgent to bring the case to a and the claimants stretluously sought delay, in consequence of the absence of material witnesses, till at last the court gave a dnal allowance of time to procure the attendance or the depositions of those witnesses, and the case was heard without them.
Intf'rest. on ·······..····...·.·.·...······················ ······· $4,368 28 From November 1888, to JUlie 24, 1891, Is 416 16
;Amountlng to································· '· ··········· ·· ft.786 44

-For which, with costs, let a. decree be now entered.

THE Jh.BBONL

THE NELLIIll Jll.RUMBALL.

(Circult Court, D. Mal.ne. December 12, 1892.'

L

COLLI$ION-LIGHTB AND LOOKOUTS.

, In a coUlslon ease, where there Is a dispute about llghtsant! their bearIngs, the lack of a proper lookout or the absence of his test14iony hall a veryg,reat weight agaiJist the vessel deficient In this reSpect. A .lilChooner and a tarl,ientlne approaching each other at Dight nearly hea(J. ot;!, or on close parallel CO\irses, came into collision, thll.latter strikIng the fc>rmer. on the port bow. 'The schooner was salling. closehauled on tlle IltarbC>8,rd tack, wWle the llarkentine wasgolng free on the port tack.. , Theco.urt found, on. conflicting testimony, that the barkentine was to leeward of the schooner; that the schooner was allowed to fall oJr so as to contribute to the disaster; and that no sufllcleut explanation for so doing was glven;and also that the barkentine, havlng plenty of sea room, and with knowledge of the schooner's approach, failed to keep away, as she might have done. Held, that both vessel" were in .fault,. and the damages should be divided. Where there Is great contllct In the evidence as to the value of a vesse}, damaged by collision, 'he tlndlngof the district court as to her value will not be reversed by the circUIt court on appeal. The Parthian, 48 Fed.. Rep. 564, followed.
. .

S; BAlm_BETWEEN SAILING VESSELS.

8.

SAME-EVIDENCE_ApPEAL.

"

SAME-D,lMAGES LIMITED TO VALUE OF' VESSEL

Damllge$ for Ipjuries to a vessel by colllsion should' not exceed her value. aDrl her net pending freight, (to be computed by tl!.e role given in the opinionS 'where this wlll fully indemnify her ownerS; The class of cases wherl:' nlore is allowed should be strictly limited.

G; SAME-INTEREST AS DAMAGES.

Where not more than the value .of the vessel and her net pendlng freight Is allowed as damages for coUlsion, interest should' be added to make complete restitution.

Appeals ·from the District Court of the United States for the District of Maine. In Admiralty. Libel by Thomas J. Stewart and others, owners of the schooner Rabboni,against O. P. Rumball and others, owners ot the barkentine Nellie E. Rumball, to recover damages for a collision. Gross lihel by the latter against the former forAhe same collision. The district CQurt found, that the barkentine was alone in fault, and

THE RABBONI.

953

decreed accordingly. 53 Fed. Rep. 948. Her owners appeal. De· cree modified. EugeneP. Carver, for the Rabbont .Edward S.Dodge, for the Rumball. PUTNAM. Circuit Judge. On these appeals the owners of the Nellie E. RUIIlball, the barkentine, have produced important testimony wbich the learned judge who heard the cases below did not have the benefit of. On the other hand, the owners of the Rabboni, the schooner, ha,ve not yet produced their lookout. In the light of the new evidence, all the proofs as they appeared to the district court 800m to reqnire re-examination. The day after the collision, Capt. Tapley, the master of the Rabboni, noted his protest, in which he stated the wind was N. W. by W., and his course was W. S. W.; and Capt. Johnson, the master of the Rumball, the same day stated in his protest that the wind was W. N. W., and his course N. E. by E. 1-2 E. In one part of his evidence Capt. Tapley makes his course southwest or southwesterly, and expressly states that it was by compass; and the libel in behalf of this vessel alleges that she was closehauled on the starboard tack, and heading southwest by compass. Therefore, on the statement of this master, he was able when he made his protest to give the general course of his own vessel and the direction of the wind with approximate accuracy. He attempts to persuade the court that the notary .did not correctly take down his oral statement. But inasmuch as he testifies unqualifiedly that his vessel was closehauled, and that she could lie as snug as five points, and gave in his protest the wind five points off from her course as stated therein, the notary, if he misunderstood him, must have done so with reference to both facts, which is extremely improbable. Moreover, Capt. Tapley's protest is in harmony on this point with the facts in other respects. I think it may be accepted that Capt. he could make the Handkerchief lightship well enough Tapley without another tack, and that thelast tack he made was somewhat southerly-he says about a half a mile-from the Shovelful lightship, where there was sufficient water for a vessel of his schooner's draught; and, even without the clear admissions to that effect in his testimony and elsewhere, it is to be presumed his vessel would on this tack bear away directly for the Handkerchief. I am therefore sat.isfied that the Rabboni headed on her last tack somewhat more west· erly than the chart course between the lightships, and that she bore generally somewhat across the course of the Rumball, although in very nearly the opposite direction. I have no reason to doubt that Capt. Johnson's protest gave the general course of his vessel correctly. The logs of the two lightships are rather general, but they are con· sistent with Capt. Tapley's holding a course fully as much to the westward as his protest states. It does not appear important to investigate the claims as to the alleged improper position and deficient illuminating power of the Rabboni's as it is clear that those claims, if sustained, would not help to solve the difficulties of these cases. The witnesses for the

'954

FEDERAL REPORTER,. vol.

53.

Raibboil1testify that tIle green light of the other vessel bore constantly, till just before the collision, over their starboaird bow, and the witnesses for the Rumball testify that the red light of the Rab· boni bore over their port bow. The cases turn mainly on this discrepancy. There is no proof that the Rumball did not seasonably see the and on the (l8,Be as made by the Rumball, and on the courBeil·of the vessels 'aB found by me, she could n<;>thave been misled by thebl each other" though she migllt have been on the case asma.(ie by the :8ablxmi. If the two were constantly green 'to.green, their. courses could not thereafterwards intersect, . and perhaP!i!lnever, had .intersected, and theRUDiball. must have been to the windward; and, if not green to the Rabboni might or might not have crossed the intersection of the courses, if they did intersect, but the aumbailmust have been the On the latter hypothesis, inasmUch as the schooner was closehauled, and as a fresh nQrthwesterly wwdon this coast would haI;d1y draw steadily from the same point of tlle. compass, a slight fault or inattention at her ;have her to have fallen off under the bow of the RUlll.ball ;in such way as, in connection. with the. admitted change of. the wheel of the latter when the collision was imminent, would ha,vebrQught the vessels together quite.in the direction in which, they in fact collided. On the other hypothesis,-that is, with lights green togreen,-although of course it would not have been im· for the Rumball to swing so as to run .upon the starboard bow of the. schooner in the direction of the collision, yet, with the ltabboni holding her this could have occurred only through a change of that, of the Rumball of quite eight points, improbable of itself, and quite incredible in the face of the full and careful manning of her deck, clearly ShOWll by her witnesses. Capt. Tapley was very likely trying to meet the force of this proposition, by shifting his statement of his vessel's course from W. S.W. toS. W. This, if true, would have dimudshed the improbability, but not removed it. For this reason,..and. also because of the probable courses of the two vessehi as alreadye;wlained, ,and, further, ,because of the. present preponderance of proofs in behalf of the Rumball, I conclude that she .' 'ras .at the leeward prior to the collision. . 'l'he 17 . Rep. 606, relied on by the Rabboni, does not ,apply, because what is there stated to be improbable did in fact occur in the cases at bar; and, the question is not the improbability of the occurrence, but only the balance of improbab.ilities as between the two vessels. Neither· am I aided by the rule relied on· in behalf .of the Rabboni,touching the special weight to be given to testimony of persons aboard a particWIll' vessel as to her own movements,as. this . rule is neutralized in the cases at bar. I am satisfied there were no .other lights in the vicinity w,hi<:lh cduldhave been mistaken for those . of either vessel concerned in this litigation. Oapt. Tapley's discrepancies in stating the course of his vessel and direction of the wind, especially in view of his positiveness in referring them to compass observations made by himself, have considerable weight in determining the balance of evidence in such close cases as these at bar, although the learned judge who saw and heard him

955
testf..fy commented favorably on his general appeara.nce. Peterson, the other Witness in behalf of the Rabboni, is apparently honest throughout.·· His· positiveness in maintaining that the wheel of the Rabboni had not been changed, aJthough it is not to be accepted, does not bear against him"as it is not uncommon for honest witnesses to give conclusions instead of actual observations. At the critical moment he was away from the wheel, having :first "walked down to the lee side," and then "come up to the weather bow,-weather side."· Peterson testifies that he saw the Rumball's green light a half point on the weather bow of the Rabboni. Capt. Tapley makes it a, point and a half to two points and a half. It is possible that, when the Rnmball was first sighted, Peterson might have seen the green light, inasmuch as the vessels were nearly head on, and the schooner was crossing the course of the barkentine. From his position "aft on the starboard quarter," he might easily have miscalculated the bearing of the light more than the ''half a point" which he testifies to, and it is possible that at times the Rabboni yawed enouKh to bring the Rumball temporarily on the weather bow. There seems no impossibility in reconciling Peterson's testimony with the real facts in the case; but, if there was, it is clearly overborne by the great weight of the evidence for the Rumball. It is either the misfortune or the fault of the RabOOni that her lookout is not produced as a witness. It is questionable whether he reported the Rumball at all, but it is certain that he did not report the change in her lights which the Rabboni claims occurred. It is strange that neither the testimony of Capt. Tapley nor that of Peterson takes any account whatever of him at the time of collision. This lookout had been on duty forward nearly four hOUrs, and was only 21 years of age; and it is not a violent presumption that he was drowsy during all these occurrences, if not asleep. It may be that he failed to report change in the Rumball's lights because there was no change. He was discharged by the Rabboni soon after the collision, when he had no right to such discharge. While it is undoubtedly true that the want of a lookout, or of his evidence, cannot affect the conclusions of the court when it is clear the collision did not arise from his neglect, yet, when this fact is not clear, or when, as in the cases at bar, there is a dispute about lights and their bearings, the lack of a proper lookout, or of his testimony, has very great weight against the vessel deficient in this respect. It is needless to refer to authorities touching this well-known elementary proposition. Two witnesses have been produced by the Rumball on this appeal who did not testify in the district court,-one, the man at the wheel, and the other, the lookout. Their evidence was taken under circumstances which largely overcome the presumptions against the testi· mony of several of a crew given en masse while they remain a crew. They had been discharged long before. One was living in Sweden and the other at Chicago; and the testimony of the former was taken on interrogatories and a commission, and of the latter orally, and each under such circumstances that there was no apparent opportunity of collusion between them. Their evidence appears fair. That of the man at the wheel is not 80 distinct on certain points as that of the

and there are discrepancies;. but each refutes positively the clahn of the Rabboni as to the relative positions of the vessels. The cases are very difficult; but on the whole I hold that the RUJilball was to the leeward, and It the schooner had firmly kept her course' the collision would prtibably haye been avoided. There is no ,claim that she made any change in the extremity of danger. Indeed, it is strenuously denied that she eased off even in that emergency., And therefore, as she does not explain or excuse her falling off,but denie19 it, she m.ust be held in fault. It appears that this thoroughfare is sometimes crowded. But this night no other vessels were in range. There were ample water and sea room, and weather suited for easy and safe navigation. It is im· probable that the schooner fell off very considerably. The man at the Rumball's wheel states that she steered "rather hard;" the wind was fresh and puffy. :A.ndOapt. Johnson admits that the might have been making<some lee way, perhaps the equivalent of a. point; that the tide might have taken her on the weather bow, and set her off a little; and that this perhaps was what made him think she was coming down on, him. Under these circumstances he chose to run under her lee on courses which, if calculated correctly and held by both yessels, would have given, in his opinion, a clear way of four or' five 'lengths. But this opinion embracedseV"eral elements liable to u.ncertainties;' and I am'not satisfied that he m.ade the margin which: he could have made, easily and properly, for errors in his calculations; or 'for the contingencies which might disturb them. He apparehUyfelt this when,inhis evidence, he replied that he "don't calclliate to run a vessel ashore for the ,sake of giving a man a four or five miles berth." His statement that the Rabboni's light kept a,t wbstantiltlly the"same point on his port bow, "if anything, settling down 6nhim someWhat," proves that he was advised that the vessels were nearly hea:d on, or were drifting tQgether. IndeM, he testified that, when he first saw her hull, she. was just about on aD" opposite course, and only about half or three 'quarters of a point on his weather bow. He also testified that after this she seemed or began to "drop doWn" on him; that he then told the man at his' wheel "to keep off' a litUe, so as to give her a little more room;" that he "walked aft and saw the man heave the wheel up;" and that "he put it,pretty well up, because I told him to keep her off." But his order was only to "keep her off a litUe." Why, then, was the wheel put "pretty well up?" He continued: "I walked aft and saw the man heave the wheel up, and when I turned round again she had swUng right off across my bow;" and in reply to the court he emphasized this. This agrees with his protest, which states that when the schooner "changed her course, and was heading to cross our bow," the vessels were "within a few lengths of each other;" and all this confirms the theory that Capt. Johnson was out of reason in the statement of his opinion that, had the schooner kept her course, there would have been a, clear way of four or five lengths. However, I am not now referring to his testimony as bearing on this particular point, but to compare it with his protest of October 23.

THE BABBONI.

957

1888. This says that when he saw the Rabboni's light, one mile," he "kept oft' about half a point;" that "as she neared," "to give her as wide a berth as possible," he "ordered the helm hard aport;" that, when this order was given, her "red light was still in full view;" that, "immediately after," he saw she was ''heading to cross our bow;" and that "the vessels were then within a few lengths of each other." It is, indeed, difficult to reconcile his testimony with his protest. As the latter was made so soon after the collision, it must stand as against his evidence; and it impresses the court strongly that the order ''hard aport" was given because Capt. Johnson found unexpectedly that he was close aboard the schooner. m this connection I find much support in the conclusions of The Laura V. Rose, 28 Fed. Rep. 104, and of The City of St. Augustine, 52 Fed. Rep. 237. I regard this as one of that class of collisions which ordinarily would not happen, if either ves· sel used the great care incumbent on those navigating the crowded coasts of New England, in behalf not only of property, but of human life. While it is not necessary to say that there is any strict analogy between the rules of negligence gov· erning inland carriage and those governing water-borne commerce, yet human life is worth the same on the ocean as within the body of the county; and the underlying principles of the duty incumbent on all whose errors may imperil it, and of public policy, are the same everywhere, so far as they require the utmost vigilance and the ex· precautions in behalf of safety. There are times of peril, and Indeed times when there is no immediate peril, when we must accept !is conelusive the exercise by a master of a vessel of his best judgment &l!I on the spot, though the result may show it erroneous and fatal,and also. when close hazards must be run. But this instance no such character.. Under the circumstances of these cases, the master had fUll chance to form correct determinations, or to make Ilmple margin for errors; and he fell far short of the positive duty resting on him, as sailing free, to keep clear of the schooner, and to show that he did this. Therefore I must condemn each vessel to pay half of the damages, and of the costs in each court. As to the value of the Rabboni, the state of the proofs brings these cases with great aptness within The Parthian, 48 Fed. Rep. 564. I accept as to this the finding of the learned judge of the district court, fixing it at. $3,600, and for the same reason his determination as to the proper cost of repairs. I think it safer to limit strictly the class of cases in which more is allowed than the value of the vessel and her net pending freight, if lost. The Venus, 17 Fed. Rep. 925, 927; The Glaucus, 1 Low, 366, 372; The Cambridge, 2 Low, 21, 26. The owners of the Rabboni will be fully indemnified by these allowanceE, especially as they retain the salvage. When not more than the value of the vessel and pending freight is given, interest should justly be added, to make complete restitution. Therefore, in computing the damages, the commissioner will take, as those suffered by the Rabboni, the value of the vessel, $3,600, and the net pending freight, with interest, both to be computed by the rule given in Marsden on Ce-lli·

FEDERAL'REPORTElt,V"ol. 53,

{3(}t'Ed. pp; 1111 112.) I give himno estir mttting' the' damages suffered by' the Bumball,except to'make cor· allowance of interest. " ,' '" ,Decroo of the ,district court modified ibOth vessels atfanlt; each to pay,'tmehalf<lf all damages, and of the costs in each court; and William. } t :Bradley' is :appointed commissioner to' asseSs the damages on the principles of this opinion. '

, MIGNANO et

ai.

v.

et aL

CALIFANO et aLv. SAME. (Oirou1t Oourt of Appeals, Second Circuit. February 7,1893.)
SHIPPING 'BUSINESS.' PARTY - REpORT TO OUSTOMHOUSE " RIGHT TO INWAIU> ,

A claUSe ot'acharter party providing that the vessel Is to be "reported at the customhouse" by the cl:J.arterers' agents or their appointees, Is not equivalent: tQ consignment to them, and does not give them the right to do the inWaN. bllSlness of the ship. 49 Fed. Rep. 376, atftrmed.

Appeals the District Court of the United States for the South· ern District of New York. , In AdmffaltY. .' Libels in personam by Andrea MigJ,iano and an· other against Robert MacAndrews and another, composing the firm. of, Robt. Mac,Andrews & CO'1 and by., Gaspare CaJifano and another against the, to recover a of charter hire of two' vessels, were rendered for,libelants. 49 Fed. Rep. 376. Subsequently, on application by libelants" money depo$ited on tender Wail paid to them. 51 Fed. Rep. 300. Respondents appeal from decrees. Affirmed. Mr. Adams, for appellants. Harrington, Putnam, for appellees. Before LACOMBE and SHIPMAN, Circuit Judges. LACOMBE, ,Circuit Judge. These are appeals by respondents from decrees of the district court for the southern district of New York, entered FebruarY 4, 1892, in favor of the for the full amount of their respective claims. Two ItaJian vessels-the Teresina Mignano and the Francesco B.-were chartered by respondents under their firm name of Robt. MacAndrews & Co. to bring each a cargo of licorice from Smyrna to :New York. The form of charter party was one prepared by respondents, and in USe by them about 15 or 16 years. It contained the folloWing clause: '
''The vessells to be reported at the customhouse, New York, by Messrs. MaeAndrews and Forbes, 55 Water stre(!t, charterers' agents, or by whom they may appoint, or pay £20, and which sum 1s hereby agreed upon, not as a pen atty, but as liquidated damages."

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