The Fred. Schlesinger , 71 F. 747 ( 1896 )

COXE, District Judge.

It must be admitted that a vessel lying under 18 feet of water at the bottom of a frequented channel is not in a particularly favorable position to maintain a collision suit. Such a wreck directly in the track of passing vessels is a most dangerous menace to navigation. Regard for her own safety, as well as for the safety of others, should compel those responsible for her to make her presence known by plain and unmistakable signals. The only means taken to mark the wreck of the Rung Brothers was a smail white flag about the size of a pocket handkerchief at the end of a bamboo pole. It was a signal such as fishermen use to mark the location of their nets. There were also some pieces of wood and two,buckets partly submerged anchored to the wreck and'floating in its immediate vicinity. The flag was, however, the only signal 'that could be seen for any considerable distance. This was wholly inadequate as a warning signal. It did not necessarily indicate danger or announce the presence of a wreck. If it had any Significance at all'it meant that a fisherman’s net was spread at that point. ■ A red flag is a signal of danger, a white flag of safety.. It ■was. clearly the duty of the owners of the Rung Brothers, if they wished to avoid the charge of .negligence, to have a tug or soime other staunch sea boat stand by the wreck until she could be properly buoyed or moved out of the channel. No authority has been died or found by the court holding that such signals as the Bung Brothers displayed are sufficient to mark a wreck. The burden is strongly upon (he libelants to show that they were free from negligence in this regard. They have not borne the burden.

But assuming that passing vessels were chargeable with notice of the location of the wreck, the burden is still on the libelants to satisfy the court, first, that the Schlesinger struck the wreck, and, second, that the blow caused the injury which was discovered on the following day. The libelants’ case, upon both propositions, is based largely upon inference and conjecture. Those on the tug and on the steamer were unquestionably in the besr position to know the course pursued, and they unite in saying that they saw the white flag and passed from 70 to 100 feet to the left of it. The libelants’ witnesses were none of them in a position where they could discern with necessary precision the course of the propeller. Certainly they could not tell the course as accurately as those on the propeller heiself. Indeed, the main argument of which collision is predicated is founded on the fact that portions of the wreck came to the surface soon after the Schlesinger passed. It is contended that the presumption is strong that this resulted from a blow given by the Schlesinger. Undoubtedly this would be so in the absence of testimony to the contrary, but it is insufficient to overcome the positive and preponderating testimony on the part of the claimant that the Schlesinger could not have struck the wreck. Indeed, it seems evident tha t if the propeller had passed between the buoys, as the libel-ants contend, the yacht, instead of being twisted, would have been reduced to kindling wood. The propeller was dragging on the bottom all the way out and was proceeding at the rate of three or four miles an hour. Had she struck the long, narrow, and lightly built yacht a square or even a glancing blow, it is certain that instead of being injured the yacht would have been destroyed. Again, assuming the fact of collision, there is nothing but the most inconclusive inference to show the character a,nd extent of the blow. The Bung Brothers was raised the second day after she foundered. During the interval she had been dragged for several hundred feet along the bottom of the lake; she had been hoisted by steam power with chains around her bow and stern; three tugs had been working directly over her, one of them in a choppy sea, and several other vessels beside the Schlesinger must have passed through the Beading Channel. The injury to the wreck might have resulted from t hese causes or any of them. Upon what theory would the court be justified in attributing it wholly to the Schlesinger?

The libel must be dismissed, first, for the reason that if there were a collision it was due to the negligence of the libelants in failing to indicate by sufficient signals the location of the wreck. Second, the burden is upon the libelants to establish the fact of collision by a preponderance of testimony. Not only have they failed in this, but the weight of evidence is to the effect that the Schlesinger passed at least 70 feet to the southward of the wreck. And, third, assuming the Schlesinger struck the wreck there is nothing but inference to show that she caused the damage described. The libel is dismissed.