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this, under the circumstances, would have been an equivalent for what must necessarily be lost by the change. The difficulty was in overcoming the obstruction of the ice. By keep ing together, the power of all the tugs could be combined, and a longer continuous channel kept open. But, however this may be, there is nothing before me to show that keeping together was a fault.
On the whole, I am of the opinion that a case has not been made out against the tugs, and that the decree below, dismissing the libel, was right.
A steamer must, in a fog, run at only such a speed as is consistent with the at
most caution; and she must, if possible, be kept under such control that she can be stopped after another vessel with which she is in danger of collision
may be seen or otherwise discovered. A schooner sailing in the night, in a fog, in a common thoroughfare of ap
proaching steam vessels, and heading on a course crossing their regular tracks, and hearing fog signals from them from various directions, was held in fault for not exhibiting a lighted torch, a collision having occurred between
her and one of such steamers. Nothing short of an absolute certainty that the torch could do no good, to be
established by proof, will justify an omission to obey the rule. The schooner was held in fault because, while on her port tack, she sounded
one blast only at a time of her fog horn, instead of two blasts at a time. The rule of the supervising inspectors of steam vessels on that subject, though
it does not have the force of law as regards a sailing vessel, had become bind
ing on the schooner, as a usage of the sea. The schooner was held in fault for sailing short handed in a fog, having only
two men on deck, one attending to going about, and acting as a look-out, and
the other steering and blowing the fog horn. A schooner and her cargo were lost by a collision with a steamer. The steam
er being sued separately for the two losses, both vessels were held in fault. The damages for the loss of the schooner were apportioned between the two vessels. A decree was given to the owners of the cargo for the full amount of their loss; and a credit was allowed to the steamer, on the decree in favor
of the schooner against her, for a sum equal to one-half of the decree in favor
of the owners of the cargo. 88, in the suit by the schooner, both parties had appealed to this Court, the
costs in this Court in that suit were equally divided between them.
(Before Waite, Ch. J., Southern District of New York, August 28th, 1879.)
THESE were two libels in rem, filed in the District Court, in Admiralty, against the steamship Eleanora, one by the owners of the schooner Transit, and the other by the owners of her cargo, to recover for the loss of the schooner and her cargo by a collision between the schooner and the steamship. The District Court held that both vessels were in fault, and apportioned equally between the schooner and the steamship the damages for the loss of the schooner. It gave to the owners of the cargo a decree against the steamer for the full amount of the damages sustained by the loss of the cargo. In the suit by the owners of the schooner, both parties appealed to this Court. In the suit by the owners of the cargo the claimants appealed to this Court. The decision of the District Court, (BLATCHFORD, J.,) was as follows: "These libels are filed, the first of them by the owners of the schooner Transit, and the second of them by the owners of her cargo, to recover for the damages caused by the loss of the schooner and her cargo of coal, which took place on the night of the 30th of August, 1875, shortly before midnight, in consequence of a collision between the schooner and the steamship Eleanora, in Long Island Sound, off Faulkner's Island, during a dense fog, the schooner and her cargo being sunk and totally lost, and the master of the schooner being drowned. The steamer was bound from New York to Portland, Maine. The schooner was bound to the eastward. The wind was east, and very light, and the tide was running flood or to the westward. The schooner was on her port tack, beating, and heading about south southeast, or six points off the wind. The course of the steamer had been a little north of east. The stem of the steamer struck the starboard side of the schooner a few feet forward of the stern of the schooner, and substantially cut
off the part of the schooner that was aft of the line of the blow. The libels allege that those on the steamer were either negligent in not discovering the schooner in time to avoid the collision, or, seeing the schooner and her lights, or, hearing her signals on her fog horn, were negligent in continuing to run the steamer at the rate of ten or twelve knots an hour, and in not causing the steamer to be stopped before colliding, or causing her course to be changed. The answers allege, that a fog came on at 20 minutes past eleven o'clock; that the steamer was running at a moderate rate of speed, and had competent lookouts, properly stationed and keeping a vigilant lookout, and her whistle was sounded at regular and proper intervals; that, while thus proceeding cautiously, the lookout reported, and there was, at the same time, heard, one blast of a fog horn, about one half a point over the port bow of the steamer; that thereupon, immediately, her wheel was put hard-a-port, and thereafter kept so, and she was stopped and backed; that, immediately thereafter, the sails of the schooner came into view, crossing the bow of the steamer from port to starboard ; that the schooner exhibited no flash nor other lights at any time, nor was any signal given from her except the one blast of her fog horn, just immediately before the collision; that she had no competent officers, nor crew, nor lookout, nor wheelsman, at or previous to the collision; that, notwithstanding every effort, from the moment of receiving any signal from the schooner, to avoid her, was made by those in charge of the steamer, the vessels came into collision; hat the collision occurred about 20 minutes to 12 o'clock, midnight, and was inevitable as to the steamer; that the collision was solely owing to negligence and want of skill and care on the part of the schooner, in that she had no competent crew, and had no proper lights set and burning, and exhibited no flash light, and had no competent or proper lookout, and gave no sufficient or timely or proper signals by lights or fog horns, and did not indicate her port tack by two blasts of her fog horn, so that vessels approaching her might be warned in time and thus avoid her, and had no competent helinsman,
and, for some time before, and at the time of the collision, had no one at all at her helm; that the only signal, to wit, the one blast of the fog horn, which the steamer received, was acted upon promptly; and that, had such signal been timely and proper, and had those navigating the schooner not been guilty of the other negligent acts above-mentioned, the collision could have been avoided. The fog was very dense. The steamer, when the fog came on, reduced her speed to the rate of between 5 and 6 miles an hour, her ordinary rate being 10, and blew her fog whistle at proper intervals. There were in her pilot-house her master, and first mate, and one seaman, and there was a seaman on watch just outside of the pilot-house, and one on the lookout forward, on the forecastle deck, close to the stem. All were listening attentively for sounds of fog horns and looking attentively for lights. The schooner, as I find, on the evidence, had her colored lights set and burning, but they were not seen at any time from the steamer, nor could they, or the lights of the steamer, have been seen in such a fog at any useful distance. The schooner had on her deck a seaman, who was at the wheel, and her mate. Her master came on deck very shortly before the collision. The persons on the deck of the schooner were listening and looking. They had a fog horn on deck, and it was being blown by them at proper intervals. Yet, it is plain, from the evidence, that neither vessel became conscious of the presence of the other, until just before the collision. I cannot resist the conclusion, that the collision was due, in part, at least, to the improper speed of the steamer. The violence of the blow, and the fact that, notwithstanding the steamer stopped and reversed at full speed, as soon as she became aware of the proximity of the schooner, by hearing her fog horn, the impetus carried her, despite the obstacle, a considerable distance ahead and beyond the place of collision, before she came to a stand-still, indicates that her speed was too great. The schooner gave blasts on her fog horn at proper intervals, unconscious of the approach of the steamer. The schooner was bound to the eastward, with her booms off to starboard. The blasts of her fog horn were deliv
ered, as was natural, towards the eastward, and the position of the sails of the schooner would tend to intercept the sound from being heard by a vessel approaching the starboard side of the schooner, nearly at right angles. The moment the whistle of the steamer was heard on board of the schooner, the fog horn of the schooner was blown over the starboard side of the schooner, and towards the direction from which the blast of the whistle came. The steamer was running at the rate, at 54 miles an hour, of 484 feet in a minute. The wind was blowing the sound of the whistle directly away from the schooner. It will not do to say that the fact that the schooner did not hear the steamer's whistle sooner, or the fact that the steamer did not hear the schooner's fog horn sooner, it appearing that those on both vessels were watchful and attentive, proves that the steamer gave no' blasts of her whistle before the first one that the schooner heard, or that the schooner gave no bast of her fog horn before the first one that the steainer heard, in the face of the clear evidence that both whistle and fog horn were blown, and blown at proper intervals, in view of the existing state of things before the blasts which were respectively heard. If the steamer had been going at less speed, or had gone ahead a short distance and then stopped still and listened, and thus made her speed, or her passage from point to point through the intervening space, and not merely her running rate while in forward motion, that “moderate speed” which the statute requires, it is quite apparent, that, blowing her whistle continually, at proper intervals, the blast would have been heard by the schooner, and answered by the fog horn over the starboard side of the schooner, in sufficient season for the steamer to have stopped and backed, and be brought to a stand-still, before reaching the schooner. Therefore, the steamer was in fault as to her speed. It is contended that the schooner was in fault in not showing a lighted torch. It is provided, by section 4,234 of the Revised Statutes, that every sail vessel shall, on the approach of any steam vessel during the night time, show a lighted torch upon that point or quarter to which such steam