Lacombe, Circuit Judge.
The conclusion arrived at in this court as to the liability of the Beaconsfield differs from that of the district court. Inasmuch, however, as this divergence of opinion results from a different understanding of the facts, extended discussion of the authorities cited would be unprofitable.
The findings sivpra contain the statement that the condition of the bottom in the locality where the Beaconsfield reversed was such that there was risk of her running aground should she continue under a port helm. Her navigator, (Sisco,) a Sandy Hook pilot of 40 years’ experience, testified to the existence of a reef of rocks some distance off the Battery wall. Of this the chart contains no indication, but the witness insisted with great confidence that it was there, and, although five pilots were called by the Britannia after his testimony was given, not one of them contradicted him on this point. Under these circumstances, his statement is accepted as correct.
The testimony, when examined in the light of the chart, seems to indicate with great distinctness the precise place where the Britannia touched the bottom. If the Beaconsfield’s position at that time be taken about as given by the Britannia’s witnesses, the distance between them was less than half a mile. For half a minute thereafter the Britannia was running at full speed. Her rate of progress over the ground, when running'at reduced speed, must have been considerably in excess of the Beaconsfield’s, the latter steamer being retarded both by the wind and the flood eddy. From the moment of touching till the Beaconsfield reversed, the speed of the Britannia over the ground was probably twice that of the other vessel. Taking these facts into consideration, it seems reasonably certain that, when the Beaconsfield reversed, the vessels could have been not quite four of her lengths apart, instead of a quarter mile, as the district judge found. Of course, to the point of intersection of their respective courses the distance was much less. Whatever may have been the facts as to the Britannia’s helm, nothing in her movements up to that time indicated that she was porting. Whether or not she was in fact doing all she could, observers of her motions from the deck of the Beaconsfield had good ground for believing that she was not, and that, if she still intended to take such action, she was delaying until dangerously near the safety limit. There was, indeed, an agreement on her part to go astern, which for the time being presumptively terminated the risk of collision involved in the fact that the vessels were on crossing courses; but the natural conclusion from her movements was that, either intentionally or through some mischance, she was breaking that agreement, and the moment it was broken the risk of collision was renewed. A reasonable time is no doubt required for the execution of maneuvers agreed upon, and the interval between the Britannia’s first signal and the Beaconsfield’s reversal was short; but, [73]*73short though it was, the former vessel had during it passed over a considerable space, had gotten far beyond any shoal water at Governor’s island, had nearly crossed the southerly half of the channel, and had passed, without turning into it, quite 600 feet of the deep water fairway into the East river, whither her signal had indicated that she was bound. If she meant to go there, she could now, under the most favorable circumstances, make the necessary turn only in the northerly water, and perilously near the place where the Beaconsfiold would be. But not only did the Britannia’s movements fail to indicate that she had begun her maneuvers for turning to the eastward, but her swing to the westward indicated a diametrically opposite maneuver. Whether or not she did in fact swing to the westward is in dispute, but there can be little doubt that her sudden dash forward at full speed, with her helm amid-ships, begun when she touched bottom, was continued till all risk of grounding was over, and sufficiently far for her to feel the effect of the tidal action referred to in the fourth finding. If so, she probably did take a swing to the westward, slight, indeed, but perceptible to those on the Beacons-tield.
Judging from appearances, then, it was reasonably certain that, whatever she had promised, she was not executing proper and sufficient maneuvers to keep out of the way. Meanwhile, the situation of the Bea-consfield was such that further progress on her course involved risk of grounding, without assurance of avoiding the collision. All these circumstances would necessarily create in the mind of a prudent navigator a reasonable and strong apprehension that collision would ensue, unless some further action were taken by himself. The vessels had approached over more than half the space which separated them when the Britannia’s first signal was heard, and were still approaching, so as to involve risk of collision. If that risk ivere to be avoided, it "was-apparently necessary that both vessels should take some action. What that action should be was indicated by. the twenty-first rule, — if necessary, each should stop and reverse, — and the necessity for such action had arisen. The special circumstances of the case, as they appeared to the Beaconsfield’s navigator, enlightened as to what the Britannia really was doing only by such indications as her movements afforded, called for this maneuver, which the twenty-first rule required, and which her master testifies he considers the essence of safe navigation. A careful collation of the testimony of those on both steamers and elsewhere, assisted by elaborate plotting on the chart, indicates that the probabilities are that the Britannia would have passed astern of the Beaconslield if the latter had kept her headway, even though she straightened out sufficiently to clear the shoal water her pilot spoke of, but by a very small margin only. The conduct of the Beaconsfield, however, is to be judged in the light of the circumstances as they would have appeared at that time to an experienced and careful navigator standing on the bridge. At that place and time collision seemed imminent, and a reversal necessary to avoid it.
[74]*74ON MOTION TO HAVE CASE REOPENED.
(Filed May 5, 1890.)
This is an application by the owners of the Britannia to have the causes reopened, and to allow them to “furnish further evidence as to the correctness of the coast-survey chart in evidence, and to have a finding that the said chart is correct, and that there was no such reef of rocks as was testified to by the witness Sisco on the trial,” and generally for a further hearing. The application was induced by the eleventh finding of fact, and by a paragraph contained in the opinion. The said finding is as follows:
“Eleventh. At the time the Beaconsfield reversed she had approached so near the New York shore that, in view of her draught of water and the condition of the bottom in that locality, there was some risk of her running aground should she continue her headway much longer under her port helm.”
The excerpt from the opinion quoted in the moving papers is as follows:
“The findings (supra) contain the statement that the condition of the bottom in the locality where the Beaconsfield reversed was such that there was risk of her running aground should she continue under a port helm. Her navigator testified to the existence of a reef of rooks some distance off the Battery wall.
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Lacombe, Circuit Judge.
The conclusion arrived at in this court as to the liability of the Beaconsfield differs from that of the district court. Inasmuch, however, as this divergence of opinion results from a different understanding of the facts, extended discussion of the authorities cited would be unprofitable.
The findings sivpra contain the statement that the condition of the bottom in the locality where the Beaconsfield reversed was such that there was risk of her running aground should she continue under a port helm. Her navigator, (Sisco,) a Sandy Hook pilot of 40 years’ experience, testified to the existence of a reef of rocks some distance off the Battery wall. Of this the chart contains no indication, but the witness insisted with great confidence that it was there, and, although five pilots were called by the Britannia after his testimony was given, not one of them contradicted him on this point. Under these circumstances, his statement is accepted as correct.
The testimony, when examined in the light of the chart, seems to indicate with great distinctness the precise place where the Britannia touched the bottom. If the Beaconsfield’s position at that time be taken about as given by the Britannia’s witnesses, the distance between them was less than half a mile. For half a minute thereafter the Britannia was running at full speed. Her rate of progress over the ground, when running'at reduced speed, must have been considerably in excess of the Beaconsfield’s, the latter steamer being retarded both by the wind and the flood eddy. From the moment of touching till the Beaconsfield reversed, the speed of the Britannia over the ground was probably twice that of the other vessel. Taking these facts into consideration, it seems reasonably certain that, when the Beaconsfield reversed, the vessels could have been not quite four of her lengths apart, instead of a quarter mile, as the district judge found. Of course, to the point of intersection of their respective courses the distance was much less. Whatever may have been the facts as to the Britannia’s helm, nothing in her movements up to that time indicated that she was porting. Whether or not she was in fact doing all she could, observers of her motions from the deck of the Beaconsfield had good ground for believing that she was not, and that, if she still intended to take such action, she was delaying until dangerously near the safety limit. There was, indeed, an agreement on her part to go astern, which for the time being presumptively terminated the risk of collision involved in the fact that the vessels were on crossing courses; but the natural conclusion from her movements was that, either intentionally or through some mischance, she was breaking that agreement, and the moment it was broken the risk of collision was renewed. A reasonable time is no doubt required for the execution of maneuvers agreed upon, and the interval between the Britannia’s first signal and the Beaconsfield’s reversal was short; but, [73]*73short though it was, the former vessel had during it passed over a considerable space, had gotten far beyond any shoal water at Governor’s island, had nearly crossed the southerly half of the channel, and had passed, without turning into it, quite 600 feet of the deep water fairway into the East river, whither her signal had indicated that she was bound. If she meant to go there, she could now, under the most favorable circumstances, make the necessary turn only in the northerly water, and perilously near the place where the Beaconsfiold would be. But not only did the Britannia’s movements fail to indicate that she had begun her maneuvers for turning to the eastward, but her swing to the westward indicated a diametrically opposite maneuver. Whether or not she did in fact swing to the westward is in dispute, but there can be little doubt that her sudden dash forward at full speed, with her helm amid-ships, begun when she touched bottom, was continued till all risk of grounding was over, and sufficiently far for her to feel the effect of the tidal action referred to in the fourth finding. If so, she probably did take a swing to the westward, slight, indeed, but perceptible to those on the Beacons-tield.
Judging from appearances, then, it was reasonably certain that, whatever she had promised, she was not executing proper and sufficient maneuvers to keep out of the way. Meanwhile, the situation of the Bea-consfield was such that further progress on her course involved risk of grounding, without assurance of avoiding the collision. All these circumstances would necessarily create in the mind of a prudent navigator a reasonable and strong apprehension that collision would ensue, unless some further action were taken by himself. The vessels had approached over more than half the space which separated them when the Britannia’s first signal was heard, and were still approaching, so as to involve risk of collision. If that risk ivere to be avoided, it "was-apparently necessary that both vessels should take some action. What that action should be was indicated by. the twenty-first rule, — if necessary, each should stop and reverse, — and the necessity for such action had arisen. The special circumstances of the case, as they appeared to the Beaconsfield’s navigator, enlightened as to what the Britannia really was doing only by such indications as her movements afforded, called for this maneuver, which the twenty-first rule required, and which her master testifies he considers the essence of safe navigation. A careful collation of the testimony of those on both steamers and elsewhere, assisted by elaborate plotting on the chart, indicates that the probabilities are that the Britannia would have passed astern of the Beaconslield if the latter had kept her headway, even though she straightened out sufficiently to clear the shoal water her pilot spoke of, but by a very small margin only. The conduct of the Beaconsfield, however, is to be judged in the light of the circumstances as they would have appeared at that time to an experienced and careful navigator standing on the bridge. At that place and time collision seemed imminent, and a reversal necessary to avoid it.
[74]*74ON MOTION TO HAVE CASE REOPENED.
(Filed May 5, 1890.)
This is an application by the owners of the Britannia to have the causes reopened, and to allow them to “furnish further evidence as to the correctness of the coast-survey chart in evidence, and to have a finding that the said chart is correct, and that there was no such reef of rocks as was testified to by the witness Sisco on the trial,” and generally for a further hearing. The application was induced by the eleventh finding of fact, and by a paragraph contained in the opinion. The said finding is as follows:
“Eleventh. At the time the Beaconsfield reversed she had approached so near the New York shore that, in view of her draught of water and the condition of the bottom in that locality, there was some risk of her running aground should she continue her headway much longer under her port helm.”
The excerpt from the opinion quoted in the moving papers is as follows:
“The findings (supra) contain the statement that the condition of the bottom in the locality where the Beaconsfield reversed was such that there was risk of her running aground should she continue under a port helm. Her navigator testified to the existence of a reef of rooks some distance off the Battery wall. Of this the chart contains no indication, but the witness insisted with great confidence that it was there, and, although five pilots were called by the Britannia after his testimony was given, not one of them contradicted him on this point. Under these circumstances his statement is accepted as correct. ”
So far as this last excerpt is concerned, it may, if counsel wishes, be stricken frpm the opinion. The practice of writing opinions in collision cases (involving more than $5,000) when they are decided in the circuit court seems sometimes of doubtful utility. In all actions for negligence, where the question is one of reasonable care and prudence, each case necessarily depends upon the co-ordination of its own peculiar facts, and only the most general principles can be of universal application. The statute inquires this court to state separately the findings of fact, and its conclusions of law thereon. The accuracy of the decision is to be determined by the examination of these findings and conclusions. If the former are supported by proof, and warrant the conclusions drawn from them, the decision is affirmed; otherwise it is reversed. It seems to be the plain intent of this practice to limit the argument upon appeal to the facts which are specifically “found.” If those facts are found with sufficient fullness, they should point to definite conclusions: and merely to restate the premises and conclusions in the opinion can rarely be of any assistance, either to counsel or to the appellate court.
The counsel for the Britannia, however, moves to reopen the cause to allow of further proof touching the eleventh finding quoted above. Of course in such motions it is essential that the moving party should indicate with reasonable fullness what proof is to be offered. This has been done, the moving papers containing a report of soundings made recently [75]*75by an officer of the coast survey, accompanied by a diagram. From these it appears that the four-fathom curve is not correctly shown upon the chart which was in evidence on the trials both in the district court and here, it further appears therefrom that — even if there are no rocks in the locality referred to — there is off the Battery wall a projection of mud or silt which pushes the four-fathom curve further out into the river, and loaves less margin for a vessel, situated as was the Beacons-field, to maneuver in than the chart shows. Accepting the evidence furnished by the moving papers, — and even without considering the affidavits which wore read in opposition, — I ana still satisfied that “at the time the Beaconsiield reversed she had approached so near the New York shore that, in view of her draught of water and the condition of the bottom in that locality, there was some risk of her running aground should she continue her headway much longer under her port helm.” There is no cause shown, therefore, for reopening the case. The finding, however, now expresses a conclusion (of fact) reached after a consideration, not only of the record in the district court and the additional proofs taken here, but also of the depositions submitted by both parties on this motion. Should there be an exception taken to the eleventh finding, therefore, these depositions will be considered as before the court when the bill of exceptions is certified.
The following additional finding of fact may be made: Twenty-ninth. That the line of 24-foot deptli of water off the Battery is as .laid down on the chart used on the trial, except that about S. S. W. from the Battery flag-staff there is a projection of mud or silt which pushes the 24-foot lino out into the river, as laid down on the tracing attached to the affidavit of Lieut. W. P. Elliott, the extreme outer end of which is less than 30 yards northerly from a line drawn W. N. W. through the place of collision, as found in the twentieth finding.