The Eleanora. vessel shall be approaching.' In order to make this provision operative, it is necessary that the sailing vessel should be aware of the approach of the steam vessel towards her, or, that, if ignorant of such approach, such ignorance should not arise from negligence or inattention on the part of the sailing vessel. In the present case, I do not find, on the evidence, that there was any negligence or want of attention on the part of the schooner, in watching for sounds from the steamer. The schooner was provided with a torch, but it was not on deck. I am not satisfied, on the evidence, that there was a sufficient interval of time between the hearing of the steamer's whistle by the schooner, and the hearing of the schooner's fog horn by the steamer, for the torch to have been lighted and exhibited in such manner as to have done any good, or to have indicated the presence or position of the schooner to the steamer sooner or better than the fog horn did, even if the torch had been on deck. Here, again, the difficulty goes back to the speed with which the steamer was approaching the course of the schooner. But, there is an obstacle to the entire exoneration of the schooner from fault. The board of supervising inspectors of steam vessels, in January, 1875, established certain regulations, which were approved by the Secretary of the Treasury. They are contained in a printed pamphlet of 45 pages, entitled: General Rules and Regulations prescribed by the Board of Supervising Inspectors of Steam Vessels, and approved by the Secretary of the Treasury, 1875.' Among these regulations, on page 41, are 'Rules prescribing certain fog signals to be observed by steamers, sailing vessels and other craft.' One of those regulations is as follows: Sailing vessels, and every craft propelled by sails, upon the ocean, lakes and rivers, shall, when on their starboard tack, sound one blast of their fog horn; when on their port tack, they shall sound two blasts of their fog horn; when with the wind free, or running large, they shall sound three blasts of their fog horn; when lying to or at anchor they shall sound a general alarm.' This regulation was in force at the time of this collision. The statute re The Eleanora. specting fog signals (Rule 15 of section 4,233 of the Revised Statutes) does not cover the point of an indication of the starboard tack by one blast of a fog horn, and of the port tack by two blasts. The power of the board of supervising inspectors of steam vessels to establish the regulation in question is claimed to be derived from section 4,405 of the Revised Statutes, which provides, that the board shall establish all necessary regulations required to carry out in the most effective manner the provisions of this Title, and such regulations, when approved by the Secretary of the Treasury, shall have the force of law.' This provision was a re-enactment of a like provision found in section 23 of the Act of February 28th, 1871, (16 U. S. Stat. at Large, 449.) I find it impossible to hold that the regulation respecting the indication of the tack is a necessary, or even an appropriate, regulation to carry out any provision that is found in the Title in question, Title 52. It is urged that the clause referred to gives to the Board power to make any regulation which tends to prevent the loss of life on board steam vessels. The provisions of Title 52 are, indeed, many of them, provisions to prevent such loss of life. But they are specific provisions in regard to various matters. None of them relate to fog signals, or to the navigation of a steamer or a sailing vessel in a fog, or to the manoeuvring of a steamer with reference to a sailing vessel. Therefore, I cannot hold that the regulation respecting the indication of the schooner's tack had the force of statutory law, as respected either the schooner or the steamer. But, the evidence is clear, that, as the language of the sea, the steamer had the right to understand one blast of a fog horn as indicating a sailing vessel on her starboard tack; and, in view of the evidence on the part of the steamer, and the absence of testimony on the part of the schooner, to the effect that one blast of a fog horn was not understood by those on the schooner to indicate the starboard tack, it must be held that the schooner knew that a single blast would indicate to the steamer that the blast came from a sailing vessel on her starboard tack. The schooner had, very shortly be The Eleanora. fore, been on her starboard tack. On that tack, the one blast was proper. When she came on her port tack she continued her one blast. The steamer heard that one blast a little on her port bow, not over half a point. With the headway she had, she ported her helm. This threw her head to starboard, and, on the evidence, she changed, by compass, before the collision, a point and a quarter, or from east one-quarter north to east by south. Her view was, that the fog horn was on a sailing vessel which was on the starboard tack, and had already got on the port bow of the steamer, and was moving away from the course of the steamer. Therefore, porting would ensure the passage of the steamer under the stern of such vessel. But, the schooner was on the port tack, and was moving towards the line of the steamer's course. As it was, although the steamer, by porting, changed a point and a quarter, she struck the schooner at a point only 15 feet from the schooner's stern. If the schooner had, by two blasts of her fog horn, indicated that she was on the port tack, it is apparent that the steamer, hearing the sound only half a point on her port bow, would not have ported, and that, if she had kept her course, or, much more, if she had starboarded to the same extent to which she ported, she would have passed under the stern of the schooner without striking her, or the blow would have been a sliding and glancing one, inflicting less injury on the schooner and her cargo. I must, therefore, hold the schooner in fault. I do not find that any of the other faults alleged against the schooner are established. It follows, that, as regards the suit brought by the owners of the schooner, the damages for the loss of the schooner must be apportioned between the schooner and the steamer. The decision in The Atlas, (3 Otto, 316,) requires, that, in the suit by the owners of the cargo, there should be a decree against the steamer for the full amount of the damages sustained by the loss of the cargo. In each case there must be a reference to ascertain the damages." This Court found the following facts: "A little before midnight of the 30th of August, 1875, the schooner Transit, The Eleanora. owned by the libellants in the first suit, laden with two hundred and thirty-two tons of coal, owned by the libellants in the second suit, was sunk by a collision with the steamship Eleanora, in Long Island Sound, between one and two miles to the eastward, and six and seven miles to the southward, of Faulkner's Island. The schooner and cargo were a total loss, and the captain of the schooner was drowned. The wind was light from the eastward, and the tide flood, running to the westward about two miles an hour. The schooner was eighty feet keel, and twenty-eight feet beam. Her registered tonnage was one hundred and fifty tons or thereabouts, and her carrying capacity about two hundred and thirty. She was beating eastward, on a voyage from Newburgh, N. Y., to New Bedford, Mass., and making very little headway. Her crew consisted of her captain, mate, one able seaman, one ordinary seaman and a cook. At the time of the collision she was on her port tack, having come about from the starboard tack only a little while before. The steamship was one hundred and eighty-six feet long, and thirty feet beam. Her registered tonnage was a little less than one thousand tons. She was propelled by a screw, and her usual speed was not far from ten miles an hour. She was on one of her regular trips between New York and Portland, Maine, bound east, having left her dock in New York a little after four o'clock in the afternoon of the same day. About eleven o'clock at night, a very thick fog came on, which lay low upon the water, and it was impossible to see a vessel at any considerable distance. Ordinary signal lights were of but little use. The mate's watch, consisting of the able seaman and himself only, commenced on the schooner at eight o'clock. The mate was at the wheel and the seaman on the lookout until the fog came on, or a little after. The mate then called the seaman to the wheel and went himself into the cabin, for the fog horn. On coming out he went forward near the foremast and blew the fog horn at short intervals, acting at the same time as lookout. He then came aft and gave the horn to the man at the wheel, with directions to blow it. The Eleanora. Then he went below again and called the captain. Coming on deck soon after, he went forward and let go the jib sheets and superintended the navigation of the vessel, as she came about on her port tack. The man at the wheel steered the vessel, gave the necessary attention to the sails aft, as she came about, and did all that was done toward blowing the fog horn after he was assigned that duty by the mate. Soon after the vessel got on her port tack, the captain came on deck and looked under the sails to the starboard. Down to that time, after the vessel had come about, the blasts of the fog horn had all been given on the port side, and the sound to the starboard was obstructed by the sails. The captain at once directed that the horn be blown on the starboard side. This order was obeyed, a single blast only being given. Almost immediately afterwards the steamer appeared through the fog and struck the schooner on her starboard quarter, about fifteen feet from the stern. The steamer passed by without stopping, and, in so doing, broke off the entire stern of the schooner. Soon afterwards the schooner filled and sank. After the schooner got about on her port tack, the mate went aft to the mainmast on the port side, and remained there until the collision. The lights of the steamer were not seen until just before the steamer herself came in view, and that was only a few moments before the vessels came together. The course of the schooner was directly across the track of the steamers bound east from New York, and leaving their docks that afternoon from four to six o'clock. Their courses and position at the different hours in the night were well understood by those accustomed to navigate the Sound, and they were regularly due in that place about the time the fog came on. Fog whistles were heard on the schooner a considerable time before the collision, and they indicated the close proximity of several of the steamers. The mate heard whistles when the schooner was going about, and afterwards. Some of the steamers he had seen before the fog came on. After he got on the port tack he heard whistles near by, but gave no special attention to the sounding of the horn. VOL. XVII.-7 |