Crowel v. The Radama

6 F. Cas. 907, 2 Cliff. 551

• Court: U.S. Circuit Court for the District of Maine
• Decided: April 15, 1866
• Status: Published

Opinion

CLIFFORD, Circuit Justice.

Much less conflict exists in this case than is frequently found in cases of this description. The pleadings and proofs show that the two vessels were sailing in nearly opposite directions. The collision occurred at the time and place alleged in the libel. It was not a dark night, and the wind was west, and blowing a good smart breeze. Both vessels were well manned and equipped, and both had proper lookouts and sufficient lights, and the proof is full to the point that each saw the other in ample time to have avoided the collision. Any argument is, therefore, unnecessary to show that it is a cause of fault, as the collision occurred in the open sea, and without any circumstances appearing to indicate that it might not have been prevented by a proper observance of the usual and well-known rules of navigation applicable to the case. The bark was heading north-northwest, and the schooner was heading soutli-east by south, but the bark was close-hauled on the wind, and the schooner was running six points off, which made her somewhat free. The testimony shows that the schooner saw the bark before the bark saw the schooner, but the latter was seen by the former when they were half a mile apart, and in season to have adopted every proper precaution to have avoided a collision. Where two vessels are approaching each other from opposite or nearly opposite directions, the fact that each does not discover the other at the same moment cannot materially affect the question as to which was in fault, if each made the discovery of the approach of the other in season to adopt every necessary precaution. The bark was the larger vessel, and being without cargo, she was light in the water, and she was seen by the schooner when the two vessels were two miles apart. Those on board the schooner testify that her helm was put up as soon as the bark was seen, and that she immediately began to give way.

Doubts are entertained whether that statement can be regarded as entirely correct, but the proofs are satisfactory that the helm was seasonably put up, and that the schooner had given way five, or six points, if not more, before the collision occurred. The' respondents concede that when she was first seen by those on board the bark, she was heading southeast by south; and it is fully proved that when the collision occurred, or shortly after, she was heading east A corresponding change was made in the course of the bark. When first discovered, she was heading north-northwest, and it is clearly shown that at the time the collision occurred she was heading northeast, or perhaps east-northeast Both vessels gave way, and as they were sailing in opposite directions, it is not difficult to see how the collision occurred. Unquestionably there is some conflict in the testimony as to the bearing of the respective vessels towards each other at the time the one first discovered the other, but it is not material to determine that controverted point, as it is clear that both gave way, and that the bark struck the schooner at amidships on the starboard side. A discussion upon the law of the case is unnecessary, as the rule is well settled that a vessel which has the wind free or is sailing before or with the wind, where two vessels are approaching from opposite directions, must keep out of the way of the approaching vessel, if the latter is close-hauled. St. John v. Paine. 10 How. [51 U. S.] 557; The Catharine, 17 How. [58 U. S.] 170; The Osprey [Case No. 10,606]: The correlative duty of the vessel close-hauled is to keep her course, so that the vessel whose duty it is to keep out of the way may not be baffled or defeated in her attempt to perform her duty. Mail Steamship Co. v. Rumball, 21 How. [62 U. S.] 384. Exceptional cases may arise, as was admitted in that case, but there is nothing in this ree-crd to take the ease out of the general rule. • On the contrary, the means adopted by the schooner to keep out of the way were the usual and proper means, and it is not doubted by the court that they would have been sufficient if the bark had held her course, as •she was bound to do. She did not do so, and consequently it must be held that she was in fault and responsible for the consequences. The reasons for this conclusion might be very much extended, but as the question is merely one of fact, it is not thought necessary to pursue the investigation. The respondents also contend that the damages allowed in the district court were excessive. The complaint in that behalf is twofold: first, they contend that the amount allowed for the injuries to the vessel was more than sufficient to make good the damage; secondly, that the district court erred in allowing anything for salvage, because the crew unnecessarily and improperly abandoned the vessel. The positive testimony of one of the owners was, that he paid out for the repairs on the vessel the sum of $504, and the district court allowed that sum. The testimony of the owner was, that she was not as good after being repaired as she was before the collision. Suffice it to say that the allowance was substantially correct, if the witness was entited to credit. In view of all the circumstances, I am of the opinion that 1 ought not to reverse the decree on that ground. The second ground of complaint is, that the district court erred in allowing the salvage. The amount allowed was only $433; and I am not able to see that there is any error in the decree of the district court.

One may now see that self-preservation did not require the crew to abandon the vessel, but they baa to determine that fact when the collision occurred, and at a time when the extent of the injuries to their vessel was not known. Believing that their vessel was very seriously damaged, they went on board the bark; and it does not appear that the officers and crew of the bark thought at the time that their course was an improper one. Looking at all the circumstances, I cannot say that their conduct was such as to impeach their motives, or their fidelity to their duty. The decree of the district court is, therefore, affirmed, with costs.