Neally v. The Michigan , 63 F. 280 ( 1894 )

HUGHES, District Judge

(after stating the facts). The rules of navigation bearing upon the case under consideration are as follows:

“In fogs, whether by day or night: A steamship under way shall make with her steam whistle, at intervals of not more than two minutes, a prolonged blast. A sailing ship under way shall make with her fog horn, at intervals of not more than two minutes, when on the starboard tack, one blast; when on the port tack, two blasts in succession. Every ship shall in a fog go at a moderate speed. In general, if two ships, one of which is a sailing ship and the other a steamship, are proceeding in such directions as to involve risk of collision, the steamship shall keep out of' the way of the sailing ship. Every steamship), when approaching another skip so as to involve risk of collision, shall slacken her speed, or stop and reverse, if necessary. Every ship, whether a sailing ship or a steamship, overtaking any other, shall keep out of the way of the overtaken ship. Where, by the above rules, one of two ships is to keep out of the way, the other shall keep her course.”

From tbe preceding statement of the material portions of The evidence given in this case, and from the foregoing rules of navigation, it is clear that the principal question to be Solved by this court is whether the men in charge of the schooner Holland at the time she was run into and sunk by the steamer Michigan exercised a due diligence in blowing the schooner’s fog horn before the collision happened. Although there was no fog when the collision did occur, and it was not actually incumbent upon the schooner to blow her horn just at that time,' yet the question will be considered on the hypothesis that the schooner was herself, at the time of collision, enveloped in á fog bank.. If she was, then it was certainly her duty to sound her fog horn diligently, at intervals of not more than two minutes, one blast at a time, during the period that the fog was upon her. The testimony of all members of her crew who could have any knowledge on the subject is full, positive, consistent, and emphatic in the affirmative of that question. The court is bound to credit the testimony of unimpeached witnessess as respectable and intelligent as those of the schooner appear to be. The case of the Michigan depends on breaking this testimony down. This has been attempted by two means: First, the seamen who were on board the steamer all depose that they did not hear the fog horn of the schooner except just before the moment of collision; and they all aver at the same time that the steamer’s fog whistle was constantly blown, and was so exceptionally loud in tone that it could be heard for a distance of several miles. Some of them say that this whistle was so loud and shrill as to “drown all other” noises while it was sounding. We have little doubt that within the range of the sound of such a whistle those on board the steamer failed to hear any sounds from the schooner. The fog horn of the schooner, which was diligently blown, must have been drowned by the steamer’s own overpowering whistle. It may be said generally, however, of negative evidence of this sort, that very little weight is ever given to it when contradicted by positive proof from credible witnesses in position to know the facts. Kot to hear a sound, not to see an object, does not disprove its existence.

We come, therefore, to the other means by which the appellee assails the testimony given by the schooner’s crew. As said before. all her witnesses, six in number, testify positively that her fog horn was diligently blown for as much as 20 minutes before the collision. A preliminary examination of three of these witnesses —Kiel, the lookout; Hultman, the deck officer; and Pommer, the helmsman—had been taken in the city of Boston six weeks after the collision. In these depositions Hultman and Pommer testi fled substantially as they did six months afterwards in court in Baltimore. But on the part of the appellee it is maintained that the first testimony of Kiel, taken in Boston, not only contradicts that given by himself afterwards in court, but discredits that given by other witnesses of the schooner on the point on which Kiel is alleged to contradict himself; that is to say, on the blowing of the schooner’s fog horn. This would be laying down very hard lines for the libelants in the case at bar. All their witnesses, if credited, prove a proper diligence in respect to the fog hom. Their character and credibility are not impeached. They must be esteemed to be as worthy of credit as any other witnesses examined in the cause. They seemed to be exceptionally intelligent. But yet it is contended by counsel for appellee that their testimony must be discredited because one of their number, whose testimony in court accorded with their own, had given different testimony in a previous examination. The mere statement of such a contention shows it to be of questionable soundness. But, be this as it may, it is denied on the part of the appellants that there is any material discrepancy between Kiel’s testimony given in Boston and that which he afterwards gave in court. The' deposition of this witness taken in Boston was in substance as follows, his own language being given as far as practicable. He had said that the weather had become hazy about 3 o’clock:

“I began blowing just wben a little baze set in, and tbe baze just lasted for about two minutes, and everything cleared away again; it was clear weather.”

He added that he did not keep on blowing the fog horn after that. After he saw the light of the steamer, he continues:

“I immediately started to blow tbe fog-horn, which I had still on the forecastle head, and made a noise,—an alarm. Gave him a warning that he was going foul of us that way. It seems he didn’t pay any attention to it.”

Kiel went on to say that he had no conversation at Norfolk with any one in which he said that, because the weather was clear for half an hour before the collision, he did not sound his fog horn. He ■said further:

“It wasn’t quite foggy. I shouldn’t think it was necessary to blow the fog horn, but we saw several vessels laying round us, and to anchor. I saw one three-masted schooner ahead of us, and, in case the fog should keep on, I had it handy. It was given up. to me to have it handy. Int. You sounded one blast, then, on the fog horn? • A. Yes, sir; I sounded one blast. Int. Thgn it cleared off? A. Then it cleared off. Int. You didn’t sound it again? A. Ko, sir. Int. The next time you sounded it you saw that the Michigan was coming down on you? A. Yes, sir. Int. And then the collision occurred a very few minutes after that? A. Yes, sir.”

In his testimony given afterwards in court at Baltimore he says, on being asked what he meant by “one blast,” as above:

“When the second mate gave me the fog horn, I tried it to see if it was in good order, and it was clear then, and I let it stand for about live minutes, and the haze came on,, and I commenced blowing one blast. * * * When you are on the starboard tack, you are supposed to blow one blast at intervals, and so I did. Q. How many times do you think it was from the time you commenced blowing the second time until the collision; how long do you think it was? A. About twenty-five minutes. Q. How many times do you think you blew that horn in that interval? A. About twenty times.”

A candid examination of Kiel’s testimony shows that it is in substantial accord with that of the other -witnesses who testified in behalf of the schooner. We think it is obvious from the testimony of the schooner’s crew that they believed for some time after the cause of action in this case arose that the real question which would be tried would be as to whether the schooner’s lights were up and were burning brightly at the time of the collision. They seem to have had no thought that the case would turn upon the question of her fog horn being blown. Entertaining this idea, it could hardly have entered their heads to meet and concert together what their evidence in regard to the fog horn should be. It is certain that they had not conspired together on this subject when the testimony of three of them was taken in Boston in July, shortly after the collistón. Yet two of the witnesses, Hultman and Pommer, testified there that the fog horn! was blown all the time from when the steamer was first seen, which was about 20 or 25 minutes before the collision, up to the moment of the accident.. The idea that the real question at issue was in regard to the lights of his vessel evidently possessed Kiel when lie was under examination at Boston. Feeling that the matter of the fog horn was a merely incidental question, he seemed to testify thoughtlessly and confusedly on that subject, and to be lacking in precision of statement. He was liable, therefore, to be easily misled by the leading questions put to Mm by the astute counsel of the appellee on the subject of the fog horn. This impression of the schooner’s crew that the case would be tried upon the condition of her lights grew out of the fact—which seems to be established by the evidence—that there was no real fog where the schooner was before and at the time of collision, hut only a haze. The testimony of the steamer’s own witnesses establishes that fact. The testimony of Supmer, master, and of Oesselmann, deck officer, of the Dresden, is clear and positive on that point. Oesselmann proves that the schooner was in a hazy space between two heavy fog hanks, and that the Michigan had passed through one of these fog- banks into a comparatively clear space when she encountered the Holland. We think the consistent and persistent testimony of all the crew of the schooner who were examined, to the effect that there was no fog where the schooner was, but only a haze, was true, and that this thoroughly established fact is of special significance and importance in this case. Every witness examined on the part of the schooner testifies that her fog horn was persistently blown throughout the period required by law, in the maimer required by law. She must, therefore, be regarded by the court as without fault in that particular. Her lights were all in place, and burning brightly. She kept her course on the approach of the steamer. We think, therefore, that she was without fault in the affair.

The case of the Michigan was different. Although 20 minutes before the collision she was seen by two or more of the crew of the schooner, yet her own lookout did not see the schooner. She then plunged into a fog bank at a speed of five to six miles an hour. On emerging from it she was close upon the schooner, making that speed. Five to six miles an hour is too great a spead to move with in a fog over waters always as full of vessels «of every kind as the waters at the entrance of the Virginia capes into Chesapeake bay, Hampton Roads, and James and Elizabeth rivers. The cause of this accident was the fact that the reversal of the Michigan’s engines failed to check the headway of the steamer, and to prevent her from plunging into the side of the schooner. Five 1o six miles an hour is a questionable speed in a fog everywhere. The event hero demonstrates that it was a reprehensible speed in the waters off Cape Henry, and it was gross fault on the part of iliis steamer. This speed was the cause of this collision.

The steamer was also guilty of a very grave incidental fault, but for which the accident would not have occurred. A very large portion of the carrying trade of our eastern seaboard is done by the modern three and four masted schooners. They have great capacity for freight in the hull, and lie low upon the water. Their decks are not more than 5 to 8 feet above the surface. Vessels of this class traverse all the waters of our Atlantic seaboard, night and da3’. The Michigan was a vessel of different build. Her main deck was 20 feet above the water level. Her captain’s bridge was 35 to 40 feet above the water. Her lookout bridge was 8 feet above deck, and nearly 30 feet above the water. This latter bridge was set nearly 40 feet to the rear of the high-pointed stem of the vessel. It was impossible for a man standing 40 feet back of the stem, on this lookout bridge, to keep a proper lookout, especially in hazy weather, at night, for the large class of vessels lying low on the water, which navigate the approaches to the Virginia capes. It was a flagrant fault in the Michigan that on the occasion of this collision she had no lookout in her bow, close up to her stem, in position to look over the point of the vessel on each side, and lo discover in good, time vessels that might be ahead of her in her course. The lookout of the Michigan seems from his own evidence to have been of no service on the occasion. He says that he reported no light from 3 o’clock to the time of the collision. He saw no red light on the schooner. Even at the collision he saw no light. It seems that the lookout of the steamer could see nothing, and the rest of the crew could hear nothing, which could have been of use in avoiding the accident. Masters of ships are not at liberty to adhere to machine rules in matters as important as the duties of lookouts. On the broad ocean, under clear skies, it ma3r be sufficient for a lookout to be 30 to 40 feet back of the stem of a ship, and 30 feet in the air from the water; but in fogs, and in emergent crises, when it is necessary to be alert, and to meet every unusual exigency, it is the duty of a lookout to be at the place'on the ship where he can best see what is in her path, and to be in the best position to discover and report all that is to be seen and all that should be reported. On the occasion under consideration the lookout was not where he could see the vessel ahead of him, and, mainly on that account, was inefficient, useless, and neglectful. The Michigan was in fault in not having had a competent lookout in her bow, close to her stem, diligent in duty, alert to see what was before him, and prompt in reporting in time the position of the Holland.

We are of the opinion that the court below erred in the particulars set forth in the appellants’ assignment of errors; that its decree must be reversed; that the Michigan was in fault as to her speed and her lookout; and that a decree should go against her for the damages sustained by the owner of the schooner from the collision. ■