The Algiers , 21 F. 343 ( 1884 )

Butler, J.

The libelant failed to display a torch. In this she disregarded the law, and was plainly in fault. She answers, however, that this fault did not contribute to the disaster, and has called a large number of witnesses who support the assertion. This testimony is deemed of little, if any, value. In view of the circumstances shown, the positive declaration that the display of this light would not have tended to avoid the collision, seems like a reckless venture. The direct tendency of its absence was to produce the disaster. The law has determined the presence of such a light to be essential to safety, under circumstances such as existed when this collision occurred. That the flaming torch is more likely to attract attention than the ordinary side-light, is very manifest. This greater likelihood of arresting attention led to its adoption. How, then, can it be said that this light would not have been seen, and the collision avoided, if it had been displayed? Granting that the respondent’s lookout was careless, how can it be affirmed that the glare and flash of the torch would not have attracted the attention of even this careless lookout ? So much less frequently displayed than the ordinary light, and bearing the character of a danger signal, its presence could hardly have been overlooked. There are, of course, circumstances in which the failure to display it may be held unimportant; as where the side-lights were actually and plainly seen from the approaching steamer, and the situation and course of the vessel fully understood, in ample time to avoid collision. Here it is not suggested that these lights were seen. It is clear they were not. Whether they should have been, is a different question, and unimportant in this connection. The libelant was plainly in fault. She saw the steamer in abundant time to warn her, and yet did not. That the situation demanded it, seems too plain for discussion. The exhibition of the globe light, at the moment of collision, was of no value.

Was the respondent also in fault ? The only fault imputed is in having an insufficient lookout. It must be conceded that the libel-ant’s side-lights were burning. Her witnesses fully establish this fact. I am asked to infer from it that the steamer’s lookout was imperfect. If the case rested here, the inference would seem just, and might bo adopted. But the respondent’s testimony is equally full and positive that the steamer’s lookout was vigilant, and that the lights were not seen. Before this direct evidence the inference must give way. It must do so, unless, indeed, the respondent’s witnesses are perjured. A suggestion of perjury, however, would be unwarranted. As reasonably might it be said that the libelant’s lights were not burning because the respondent’s witnesses did not see them. The lights were burning, and the respondent’s lookout was vigilant and sufficient. No other conclusion is admissible. The latter fact is as satisfactorily proved as the former.

Why the lights were not seen need not be determined. The case, in this respect, is strikingly similar to that of The Narragansett, 3 Fed. Rep. 253, and 11 Fed. Rep. 291; and what is there said on this subject is equally applicable here. A solution of the problem may, however, be found in the suggestion that the position of the vessels was not that ascribed to them by the libelant. A slight change would so place them that neither side-light could be seen from the steamer, and thus reconcile all the testimony. That such was their position, seems very probable, if not' entirely clear, from the facts that the side-light was not seen, and that a white light, corresponding with the libelant’s binnacle light, (which was carried unusually high,) was seen. There is little testimony less satisfactory than that respecting the position of vessels preceding a collision. The reliance placed on the supposed direction of the blow received by the respondent, is not justified by anything in the case. She sank immediately after receiving it, barely affording time for the crew to escape. The officers’ hasty glance at the wound was sufficient to see its fatal character, but not to form a judgment respecting the question under consideration, and it is quite certain this was not in mind.

The libel must be dismissed, with costs.