Dickenson v. The Gore , 7 F. Cas. 673 ( 1855 )

WILKINS, District Judge.

The suit was brought-to recover the damages occasioned to the libelant the owner of the scow Petrel, which was slightly injured by coming in collision with the steamer Gore, in the Detroit river, on the 3d of October last. The scow was coming up the river at night, before and with a fair wind, at the rate of two miles an hour, and according to the testimony of her captain, close to the Canada shore, and nearly opposite the village of Sandwich. The night was starlight. The steamer having two vessels in tow, was first discovered about half a mile off descending the river. The collision took place close in by the American shore, almost directly opposite Fort Wayne. The proofs were taken in open court, and the manner as well as the statements of the witnesses, under the immediate personal observation of the court. This was of some consequence, as the testimony in relation to the leading facts is wholly irreconcilable; and when such is the case, the demeanor of the witness will frequently give the preponderance to one side or the other. The two witnesses brought to sustain the claim of the libelant, are the master and the mate. Their statements do not altogether agree. While the clear, consecutive and circumstantial narrative of Captain Sloan, is fully sustained by Botswood, the wheelsman,' and Leonard, the mate of the White Squall, one of the vessels had in tow. They unitedly contradict Boyle, the master of the scow, as to the course of the scow, and the place of collision. They unitedly testify to the course of the steamtug being direct for the fort, keeping close to the American shore. Whereas, Boyle and his mate differed somewhat as to this, and also as to the course of the scow; the latter testifying, that the scow kept near the centre of the river, on the Canada side of the channel. -Tohn Campbell, the wheelsman, was not brought forward as a witness.

Now, where it has been clearly established', that the respondent’s vessel was not in fault in any respect, where her course was proper, and not such as to endanger an ascending vessel, that was on the look-out and careful; where she had a proper watch, and proper lights, gave the alarm signal in time, ported in time, kept ported, reversed her engine, and backed, and did all in her power to avoid the scow; all of which facts appear-in this case, and are inconsistent with requisite care on the other side; the court cannot attribute the collision to unavoidable accident, but must presume from the testimony, that the fault was in the scow, either that of inexcusable ignorance or recklessness in the master; and I think the latter. The rule as cited in The Leopard [Case No. 8.264], from the Shannon, that the vessel which has it most in her power to vary her course and keep out of the way, must do so. is not in-fracted under the circumstances, by the satisfactory proof of the steamer’s course and the conduct of her master. It is certainly not to be presumed when a collision takes place between a steamer and a sail vessel, that the former must be in fault, regardless of the course taken, merely because as a steamer she has ever 'the control over her own motions. It is the old rule applied to steam navigation, treating steamers as sailing with a fair wind, and therefore bound to give way to a vessel close hauled. And here she did give way. She hugged the American shore as closely as possible, keeping as far off as she could, rang the signal bell, to give the scow, which was ascending with a fair wind, notice of danger, and let off steam. Yet, notwithstanding all her precautions, with a recklessness unexplained by the libelant, the scow shot directly across from Sandwich, and collided with the bark in tow. I can do no otherwise than decree a dismissal of the libel, with costs. Decree entered accordingly.