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and without making known to the sail-vessel in some unmistakable manner that she intends keeping out of its way.
I am of opinion that this question admits of but one answer; which is, that under the conditions described a steamer has no right to run so near. Eight to twelve seconds is too short a time to leave to a sail-vessel for deciding whether or not to resort to rule 24. Of course, the case that has been stated contains as one of its essential features the assumption that the two vessels were approaching each other end on, or within one point on the port bow, and in that alignment the steamer had come within 50 or 75 yards, equivalent to 8 to 12 seconds, of the schooner. It utterly discards the contention of the respondent, that the schooner was out more than 105 yards west of mid-channel, or even 50 to 75 yards distant at right angles from the line of mid-channel pursued by the steamer. If they were approaching end on, the schooner was on that same line of mid-channel. If they were approaching, each within one point on the other's port bow, I calculate that the schooner was not further than about 15 to 20 yards from the line which the steamer was traversing, certainly not more, shortly before reaching within 50 to 75 yards of proximity.
The case stated assumes that the schooner's master had reason to be alarmed at the approach of the steamer. The first cause of this alarm was his having seen the steamer's green light soon after she passed Craney island. Respondent treats this unimportant averment as very material, and produced experts to prove that this was impossible. It is to be observed that in order that the side-light of a long, narrow, trimly-built steamer, with deck high up above water, and lights well out from the sides, may be seen half a mile off, it is not necessary for her to show her whole broadside to a ship. The schooner was half a mile distant when the steamer passed Craney island, and could have seen the Chatham's high and bold green light if the Chatham's starboard side was shown at but a very slight angle. Not only do all the seamen of the schooner testify positively that they did see the green light just after the steamer passed Craney island, but the latter's lookout testified that on passing the island a steamer has to bear a little westward; and expert Mayo avers and reiterates the same statement. I find no testimony in the case showing how many or how few points such a steamer as the Chatham must veer from a direct line to afford a brief glimpse of a side-light to a vessel half a mile ahead of her; but one of the witnesses says, what my own reflection inclines me to believe, that it requires but three or four points. On a question like this expert testimony is of little avail to contradict the positive testimony of beveral witnesses. The emphatic asseveration of the schooner's four seamen is that the steamer, when abreast of Craney island, showed her red light; that she soon after showed her green light for a brief space; and that after that she showed both lights, and continued to show both, seeming to approach the schooner end on, until she was within 50 to 75 yards of her; that the schooner's lookout, believing a collision to be inevitable, ran for safety to the aft part of the vessel; that, as he did so, the master
of the schooner, himself believing a collision inevitable, starboarded his helm to relieve the concussion; that thereupon the steaner 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 Carroll, 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. The Reading, 43 Fed. Rep. 398.
I will decree for the libelant.
GILKEY et al. v. THE BETA, Etc.
(District Court, S. D. New York. October 31, 1890.)
1. COLLISION-DAMAGES-RATING FOR INSURANCE-ALLOTMENT NOTES.
Although the expense of the new rating of a vessel repaired after collision, as an expense necessary to put the vessel into her previous insurable condition, may be recovered under the rule of restitutio in integrum, it is rightly oxcluded when the 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. 2. Same-SUBSEQUENT CAPSIZING_PROXIMATE CAUSE.
After collision at sea the schooner B, H., filling but not sinking, was during one day towed in from sea to Fortress Monroe, and there left in charge of her captain, who afterwards employed a tug to tow her to Norfolk, a trip of an hour or two only, during 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 facie to be due to mismanagement, and not to the collision, as the proximate cause, and that the additional damage and expense caused by such capsizing could not be allowed in the assessment of the collision damages.
Exceptions to the Commissioner's Report.
BROWN, J. 1. When, in consequence of collision and repair, a 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, which is an expense necessary to put the vessel into her previ
ously insurable 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 incident attached to the vessel, and valuable to the owner. I see no reason why his pecuniary loss in this respect, when consequent on the collision, should not ordinarily stand on 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 in a different manner from her original construction, and was therefore "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. The advance 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 with the upsetting of the vessel, and the liberal allowances for personal effects.
4. Considerable damage, as the commissioner states, was no doubt caused by the capsizing of the schooner while being towed from Fortress Monroe to Norfolk. The collision happened at sea, off 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 trip of an hour or two only, and on the way she capsized. The captain was asked to explain why she capsized and answered that he could not do so. No further evidence was given on the subject. 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 listance 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 ascertaining the cause of capsizing, and the libelant's captain says he cannot give any explanation, 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 seqms to me, under such circumstances, in the absence of explanation, is tht she upset through the lack of proper management in towing, and, if so, the damage caused by upsetting is not a proximate result of the col ision, but chargeable to the subsequent fault. It is doubtless extremely unsatisfactory to adjust such an item of damage upon evidence and presumption of such a kind, and in the absence of fuller, appropriate testi
mony; 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 may or 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 capsizing 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, and damage to sails, and other articles, from the upsetting alone. Upon examining 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 aggregate the sum of $14,701.48, for which sum, with interest from March 26, 1889, amounting in all to $16,110.36, a decree may be entered, with costs.
THE EXPRESS, 1
THE N. B. STARBUCK.
NEW YORK & CUBA Mail S. S. Co. v. THE EXPRESS, THE N. B.
STARBUCK, and THE CHARM. NEW ENGLAND TERMINAL Co. v. THE NIAGARA, THE N. B. STARBUCK,
and THE CHARM.
(District Court, S. D. New York. November 28, 1890.; COLLISION -STEAM Vessels CROSSING-East River NAVIGATION-WRONG SIDE-NOT
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 Corlear'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. gave 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 tug give a sheer towards New York, the E. reversed, but nevertheless struck the N. on her starboard bow. The collision was on the Brooklyn side of mid-river. From the time she sighted the N. the E. had been continually swinging to port. The N., without steam, was in tow of the tugs S. and C., the S. ahead on a bawser, and the C. along-side the N. They had come from Ninth street, New York, bound down the East river, and might have kept on the New 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, and 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 collision, (1) 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 liaul 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. Cross-suit for damages by collision between the steamboats Express and Niagara.
Carter i Ledyard, for the Niagara.
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 collision in the East river, a little before noon on December 2, 1889, just above Co lear'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
1 Reported by Edward G. Benedict, of the New York bar.