Consolidation Coal Co. v. American Mail S. S. Co. , 142 F. 64 ( 1905 )

PER CURIAM.

In these cases we passed down an opinion and a judgment on July 6, 1904; affirming the decree of the District Court which was to the effect that both vessels were in fault, and which ordered a consequent division of damages. That opinion states the facts sufficiently. The Charles F. Mayer has now filed a petition for rehearing. The most material proposition of the petition is that we “misunderstood the position, or locality of the collision.” The captain of the Charles F. Mayer testified that it was about “a mile to the westward of Boston Lightship,” and Capt. Butman that it was about “a mile and a half to the eastward of Thieves Ledge Buoy.” As stated in our opinion, we intended to dispose of the case on facts admitted by the Charles F. Mayer or shown by official publications, or commonly known. As there was no dispute in regard to the testimony of the captains in this particular, we adopted the natural result of the two statements, and located the collision east of Thieves Ledge Buoy and west of Boston Lightship, using the terms “east” and “west” in the way they are ordinarily used, and therefore, of course, not intending to insist that the points of the compass were either “due east” or “due west.” We therefore 'did not hesitate to assume that the point of collision was as thus stated.

This, however, related particularly to the location of the point of collision with reference to an east and west line. It did not assume to relate, and did not relate, to its location with reference to a north and south line. As, however, there was no contention that the Schley had taken a course northerly of the course admitted by the captain of the Charles F. Mayer to be the usual course of vessels of the class of the Schley, running out of Boston on her voyage in thick weather, we assumed such to be the fact. The master of the Mayer admitted that a steamer “bound for Cape Cod” “or to the West Indies” “in a fog,”, “coming out from Boston,” “would usually go near, or head towards, Boston Lightship, if she could hear its whistle.” Also, on being asked whether the Schley was heading towards the Boston Lightship, he answered: “I didn’t have any idea how she was heading, only that she was heading about that way.” Therefore we concluded that the locality of the collision stated by the masters of the two steamers established that the course of the Schley must also have been as described by the master of the Mayer; in other words, that it was, at least to some degree, southerly of the line from Thieves Ledge Buoy to the Boston Lightship.

It is true that, in describing the courses of the Mayer, we accepted them as stated by her captain, although these were not the courses described in hér libél. We expressed these courses as worked out by ourselves; but this, of course, was subject to the general observation which we have already made, that we were taking the facts as admitted by the Mayer. Therefore, we made no investigation of the entire record on this topic, nor any attempt to reconcile the courses as given by the master of the Mayer with the locality of the collision, which we have already said we assumed was not disputed by the parties. The petition for rehearing raises for the first time a serious question as to the locality of the collision, and this to the extent that, if the testimony of the master of the Mayer as to the courses which he ran, and the length of time he ran them, is to be taken in connection with the observations now made in the petition for rehearing, the question would arise whether, after all, the Schley must not have been running on a course which would have brought, her northerly of the Boston Lightship, or on some other course than that which we assumed as we have already stated. The locality of the collision in this respect is certainly a matter of grave importance, if not, as maintained by the Charles F. Mayer, a fundamental one. Therefore, we especially desire briefs, as stated in the order passed down herewith. We must observe, however, that briefs will be of no avail unless prepared with careful attention to details, and a clear exposition of the facts with reference to the record as required by our rule. As soon as practicable after the expiration of the period for filing briefs contained in the order accompanying this memorandum, the court will desire an oral reargument.

We will observe that one of his early courses, as stated in the testimony of the master of the Charles F. Mayer, was east southeast, ^.t the bar we were told this course was south southeast, and so it stands in our opinion. Whether this is a matter of consequence we at present have no occasion to observe; but we deem it proper to call the attention of counsel to the apparent discrepancy.

Ordered: A rehearing is granted on all the questions on 'both appeals; and each party may file an additional brief on or before the 22d day of October current.