THE F. S. IIALL.
0/ .Appeall. Fourth CircuUo OCtober 11, 18&2.)
On an I10ppeal in admlralty from a pro forma dlloree of the oirouit court affirming , a deoree of the distriotoourt.the circuit court of appeals will not dismiss the cauS8 merely because it was not docketed in the circuit oourt at the next term thereof ,held in the distriot, w!jen all other requiremen t8 relating to appeals to the circuit court were complied with. sohoonerR., on 'her. way to Norfolk! going under sail up Elizabeth river at night, was about balf a mile below Craney Isll1ond'light, where the ohannel is i 1,200 to 1,500 feet wide, when she sighted the ooean steamer C., ooming down about Opp(l81te the light. 'The schooner was then about the western edge of the channel, and the steamer·about Il1id-channel,the general oourse.of each vessel being about a polnt of[ the port bO.W cif the other. :But the sohooner was yawi ng with the and sometimes showEld light and sometimes the other. The steamershowea only her red light, un.tii the vessels were within 50 or 75 yards of each other, when both liKhts appeared. The lookout and master of the sohooner, both experienced seamen, beoame. alarmed,put her wheel hard astarboard, ran two or three times her length, and collide,d with the steamer, whioh meantime hEld put her helm hard . aport, and baoked her engines. HeW, that the sohooner's change of course was an error committed in extremts, and that tne steamer waBsolely liable for failing to observe the rule requirillg steamers to keep out of the way of sailing vessels. 44 Fed. Rep; 884, affirmed. ' '
.. SAKE-RULBS 0'" NAVIGATION. AND SAIti-ERROB m:mxTR'BHI9.
CUlT CoUBT' 0'" ApPEALS.
DISTRICT TO CIROunCOUR'l'-DOOltETmG CAUSE-Om· .
The rUle t1;lat a steamer J;D,ust keep outof the way of a saillng vessel req,uires, not merely that she shall pass without strikhig, but that she shall give a WIde berth, , and, lt she oomes 80 near as to cause seamen of ordinary skill and courage to believe colli,sion inevlta1:lle,she is, liable, even though the sailing veasel commits a fault under the stress of fear. 44 Fed. Rep. 884, affirmed.
, .' Appeal from the Circuit Court of the United States for the Eastern Iiistrict of Virginia. . InJ\.dm.iralty. LIbel byJ. W. Hall, owner of the schooner F. S. Ridl, against the steamer Chatham, John S. Marsh, master, for collilIion.... Decree for libefunt in the. district court, which was affirmed pro !orrrui, on appeal to the,circuit court. The muster of the Chatham apnl'lals. Motion to dismiss appeal denied, and decree affirmed on the
WilliamW. Old, for appellant. Robert M. Hughes, for appellee.
District Uponthe call ofthis case the libelant (apmoved to dismiss the appeal. His grounds are these: The cause was heard at Norfolk, and tmal decree entered December 4, 1890j notice of appeal, 10th December, 1890j appeal bond, 10th December,
" . SIMONTON,
1890j record certified 9th January, 1891. The session of the circuit court next held in the district was at Alexandria, 4th January, 1891. The cause was not docketed at that term, but at the term at Norfolk, beginning first Monday in May, 1891. Section 631. Rev. St. U. S., declares: "From all final decrees of a district court in admiralty * * * an appeal shall be allowed to the circuit court next . to be held in such district. * * *" This is imperative. U. S. v. Specie, 1 Woods, 14j Insurance Co. v. Younger, 2 Curt. 322. The appellant observed the rules of the district court in his notice of appeal and in giving the appeal bond. 2 Hughes, 596. The record was not exactly in time, but this point appellee has waived. The ground of dismissal is that the cause was not docketed at the term at Alexandria. By a rule of the circuit court, promulgated 20th May. 1885, the appellant must 'file a copy of the record of the cause from the district court in the circuit court before the next ensuing term of thecircuit court which shall be held where the cause is pending. While admitting that the practice conforms to this rule, the appellee insists that the rule is inoperative, because it contravenes the section of the Revised Statutes. It is umiecessary to go into this question,as it has ceasedto be of any practical importance. Under any circumstances, we would be unwilling to dismiss this appeal on grounds like this, as it really is an appeal from the district court to this court, the whole action of the circuit court therein being pro jarma. But we think that the case can be retained. The appeal was duly entered, and security given, and proper steps taken to prepare the record; so the appellee was not surprised, or in any way injured. "The failure to prepare and deliver to the circuit court the appeal and record in twenty days cannot prevent the circuit court from entertaining the cause if, from any reason,· this is' not done. The appeal, when once made, continues during the whole of the next term of the circuit court, unless sooner dis'missed by that court for want of prosecution or otherwise, in accordHnce with its own practice." The S. S. 08borne, 105 U. S. 450. No motion to dismiss was made. The cause being, in contemplation of law, in the circuit court, remained in that court, and was subject to its order. The motion to dismiss the appeal is refused. We consider the case on its merits. The libel is filed for a collision in the Elizabeth river between the schooner John W. Hall and the steamer Chatham. The schooner is 101 feet long, and 1[;2 tons burden. The Chatham, a seagoing steamship, is 285 feet long and 40 feet beam, drawing 15 feet. On the night of 4th October, 1889, the schooner was on her way to Norfolk, under sail, up Elizabeth river, steering south by east, about a half mile below Craney Island lighthouse. The general direction of the river is north and south. The channel is l,2000r ,1,500 feet wide. On each side of the channel there is sufficient depth of water for several hundred feet for a vessel the draught of the schooner. When the schooner was about the distance stated from Craney Island light, she saw the steamship Chatham comihg down the river about mid-channel, at a speed of nine knots. She had shown her green light when a little
FEDERAL REPORTER,: vol.
her. !jed. ijshrtj and continued tndo so until within :50,101' :'7:5 ·ys,rds of the schooner.n!" Each vessel .had, th e bther: a,point__it may be,. a.little less-
gbQvetheJighthouse;<butj'after gatting almost abrtJast 'of it, !\he showed
off her port, bOWJ' i WHen the steamship! got within 50 or 75' Yl\rds ofthe sch06nerj the lookout on the schooner became alarmed, -swears he saw hoth of:herlights,'abhndon'edhis' post, and ran aft to the wheel. There hefou:nd·the,mastev;undffio the impulse of similarfeai', ihtheact of putting., thew'heel hard .astarboard. . The head of the schooner wa,a quickly turned from her fomier oourae,<south by east, with the wind free to east. She ran about two or three of her lengths,. and. came intocollision with thesteainship. The latter, as soon as she saw the sheer of the schooner, put her helm hard aport; and .backed her engines. This threw her head toiheeast also', and· the vessels came into collision, the port bow of the 'steamer with the starboard bow of the schooner, the lut..: terhaving been struck about the bluff oithe bow. The district court held the steamship wholly in fault.· This was affirmed pro forma by the circuit court . : ·Thetestitnony in this case ds exceedingly confusing and contradictory· The;' conclusion musibe not from the theories of, or even from strietregard to the testimony, of the witnesses, but from the controlling facts of the case, and from the logio of events. The witnesses for the libelant, with &singleexC6ption, put.theschooner at the. time of the oolHsionwell to the westward of the channel. All concur that the steam-. ship was, as her draught wQi:tld require her to be, in the channel, say midchannell The schc;>qner. put' her wheel hard astarboard jt1St before collision; cr,ossed almost at right, angles, went a distance two ortbree:timesber length, and at the instant ,of collision, which occurred in a very short irilterval, she was, as they say; several hundred feet to the! eastward' of the cha11nel,-210 yards. Evidently this is all a mistake. ':['hemost prO'bable theoryiis'thatthe schooner Was proceeding to Norfolk either just outside of6r within the westEitn edge of the channel. ']11'1e'stenIner was coming down the channel near mid.chaimel. The gen..etaIdourse of the, two vessels was about·.a, point off the port bow of each other. But as the master and people on the steamship say that the lilbht>cinersometimes showed ,one and sometimes another of her 'lights, $h'e rhust ryawingunder the action of the, tide and wind, and tberelative course of the two vessels at times was much Jess than a point. . Oity.ofTruro,35 Fed. Rep. 318. When they got within 50 or 75 yl!l:rds,b( each other the -lookout on the schooner became alarmed. He satyl!thatuptothattimehe,had only seen the red light, but then he saw both'the red and green. F'.eaHulof imminent collision, he ran back to saw the master, wbQ says that he witnessed the same thing, in the act' of starboarding bis w1ieeL, If this be true; the people on::the schooner had ,reaaonforalanm Naturally they felt that they Were 'in erd1'emis; and; railtedaccordinglyl' As the schooner showed to the steamer someti'nresbothiherlights and then one light and then another, milking' her' course in . some measure uncertain to her, this tended to
m'ake the course of the steamship uncertain to the schooner, the tlyo vessels were oolya point off.' When' thesteaniship, therefore; allow-ed herself tocowe so near the schoonl;lr,she committed a grave fault. Her. master might reasonably haveexpecteq. that the crew of the schooner would be alarmed. He did not fear a collision himself, because he bad control of his own vessel. But how could he answer for them? If the channel were so narrow as to forbid him to .get away from the schooner, or if there had beenany other vessel obstructing the river, it would have made a great difference. The schooner was either to the west of the channel, or on the edge of the channel. In either ca!le the steamer had the whole width of the channel to pass her. Even if we put the schooner in mid-channel, the steamer would have had space from 600 to 750 feet on each side of her. Yet the steamer selected a course which, if no accident had happened, and each vessel had steadily kept her course, would have carried her within 11 feet of the schooner. There was no necessity for this proxiInity, which caused alarm on the schooner, and led to her abrupt change of direction, The Carroll, 8 Wall. 305. The rule of navigation is 'The steamer must keep out of way of a sailing vessel. The Falcon, Wall. 76. This does not mean, must pass her without striking; The steamer must keep away. In'the langtlngeof Mr. Justice GRIER, it IS her duty to keep clear and give a wide berth to the sailing vessel. Haney v. Packet Co., 23 How. 287,1 . .. These rules of navigation are obligatory upon vessels when approaching each other from the time the necessity for precllution begins. They other, so long as continue to be applicable as the vessels approach the means and, opportunity to avoid the danger rerbain. They' 'dd not apply to So vessel required to keep her course after the approach is so near that the collision is inevitable. The Wenona, 19 Wall. 41. It is not necessary that the collision be in fact and in the strict use of lansuch as' toitlduce a guage inevitable.· But it is enough if the danger seaman of ordinary skill and courage to conceive it to be inevitable. Under the circumstances of this case, we think that the departure of the schooner from the rule which required her to keep her course was an error, not 8 fault. The CarroU, supra. Her Ula>:ter was an experienced seamanj 16 years master of a vessel engaged in the coasting trade, and comparatively a youngman. The ]ookout was a youngman, with 12 years'experience in navigation on these waters. It would seem as if all the conditions required byTANEY,C. J., in Haney v. Packet Co., 23 How. 287, are met in this case:
. 1 No'J'll. Tbe language ot Dr. LushingtoJ1. In .The Oolonia. 8 Notes ot Cas. 13, Is not Inappropriate here bearing in mind that a steamer is under obligation to do what a sailing vessel going tree shOUld do. St. John v. pa,we. 10 How. 582. "The whole evidence sho",s. tllat it was the duty ot The Oolonia. With the wind tree. to have made certain ot avoiding the Susan. She did not do so, but kept her course until she was 8Osbort a distance as a cable and a half length, in the hope that the vessels might pass each other. Now. It can never be allowed to a vessel to enter Into nicecalcula.t1ons ,ot this kind which may be attended with· some risk whilst . It has to adopt. long before the coll1sion. measures would render.lt impossible." 'The OolOfliiG. 8 Notes of Call. 18, note quoted by Marsden In Law of Col. lIslons .at Sea. 806. . ;
'.'In .order to excuse an erroneous movement on the part of the saUfng vessel·. tbeproximity of the steamboat, and. her course and speed. must be such mariner of ordinary firmness and competent knowledge and skill would to alter his coul1le to enable the vessel to pass in safety. BiI,t. in order to justify this, the dange'rons proximity must be. produced altogebbet by the steamboat," .', .Thedecree of the circuit courti,saffirmed, with iIitere!lt, the costs of to be l?aid by the ' .'.
(1X8trict Court. B.D: New;F"ork.
, ' , .
July 29. 1892.)
Cor..trSJoJ:":'FbG-':"SPEED. . .' . " , ., III a: ;tog 80 densetbat a vesselcannot be distinguished more than dve or six hundistant, 10 knots, or upward is not "moderate speed; n and. a steamer mov-
ing IIot iuch rate off the Grand Banks, and which ran down and sank a flshing vessel'Gtan:chor, was held solelytn fault lor the collision on account of her speed, the evidence showing that the flshing vessel was complying with the regulations as to fog horn and bell, although these were not heard by the steamer, probably becausep! the noise of her 'own navigation at such speed in a rough sea and strong wind.
In A41l1il'alty. LiheUor oollision. Decree for libelant. Ooudei't Bros., for libelant. Shiprnan;Larocque &: Ohoate, for claimants.
BROWN, District Judge. On the 14th of July, 1888, at a few minutes past·:9 o'clock. in the morning, the steamship Fulda, length 420 feet, proeeeding On a voyage from Bremmerhaven to New York, came in cQllision, during a dense fog, with the libelant's two-masted schooner,Jenne Edouard, at anchor onJhe Grand Banks. in latitude 44 deg. 45 min..nprth, and longitude 54 deg. 50 min. west. The. wind was strol)g}J,'pmthe southwest, and thj9re was a considerable sea, with 8i heavy, ground swell, so that fishing was suspended. The schooner WAS, first seen by the lookout and by the officers on the bridgeat about the same time, estimated about 500 feet distant, :and·nearly straight ahead, being a little on the starboard bow. The wheel was at once ortll;jred and the steamerswung only about of a.. voint to' port. Her steDl , however, struck and carried away the boweprit and.As she went past, her .anchor caught the schooner some. considerable distance, knocking a hole in her bOw and carrying away her foremast and maintopmast. . E'avjng;got clear in the fog., the, steamer around for an hour or more, and not finding the schooner or hearing from her