Gilkey v. The Beta

40 F. 899, 1889 U.S. Dist. LEXIS 230

• Court: District Court, S.D. New York
• Decided: December 30, 1889
• Status: Published

Opinion

BeowN, J.

Tbo above cross-libels grow out of a collision between tbe steam-ship Beta and tlie schooner Belle Hooper off Hatteras on March 26, 1889, whereby the schooner was so damaged that she sank on reaching Hampton Roads. The vessels were sailing on nearly opposite courses,— the steamer, on a course N. by E. } E., at tbe rate of about nine knots per hour; tbe schooner, S. S. W., at the rate of about three knots. The collision occurred a little after 7 o’clock in the evening, the steamer’s stem striking the schooner on the starboard side near the fore rigging, at an angle of about 45 deg. The wind was light from the N. E., the sea calm, and the weather a little hazy; but liglits could be seen at a good distance. The evidence shows that when the vessels first came in view of each other’s lights they were nearly end on, varying from this by less than half a point. On tbe part of the steamer, it is claimed that the schooner changed ber course across the steamer’s bows. But I am satisfied, from the whole evidence, that this defense is not sustained. It was the duly of the steamer to keep out of the way of the schooner. The lights of the latter were visible in ample time to enable the steamer to do so. And as I must find that the schooner bold her course, and is in no wise to blame, and there was nothing In tbo way to prevent'the steamer from avoiding her, it follows that the responsibility for the loss must fall upon the steamer.

In arriving at the above conclusion, 1 have not failed to observe carefully all that has been said by the master of the steamer, and by the other witnesses in her defense. But the theory presented by the master, his estimate of times and distances, of the amount of his porting, and of the amount to which he brought the schooner on His port bow, namely, some tliree or four points at a distance of three or four hundred yards, cannot possibly be correct, since the collision in that case could not posr sibly have happened when the steamer was going at about’ three times the rate of the schooner. The probability is that the steamer, first seen a trifle on the schooner’s port bow, soon afterwards crossed the schooner’s course, when, seeing both of the schooner’s lights, the steamer ported until the schooner’s green light wras shut in, and the red only was seen; that the steamer then immediately steadied, whereas she ought to have gone much more to starboard, if she meant to take that method of keeping out of the way; that the schooner’s green light almost immediately came into view again, and then the steamer ported hard, but the collision happened a few moments afterwards. The change in the schooner’s lights was probably caused by the usual yawing that unavoidably happens to a vessel sailing, like the Belle Hooper, with the wind nearly aft. The mistake of the steamer, I think, was — First, in not seasonably observing the schooner, and in not taking the proper measures to avoid her early enough; and, second, that, when she determined to go to starboard, she did hot port long enough or strong enough to give the schooner a sufficiently wide berth; in other words, she was shaving too close. The Benefactor, 8 Ben. 426, 14 Blatchf. 254; The Zodiac, 9 Ben. 171; The Farnley, 8 Fed. Rep. 629, 637; The Laura V. Rose, 28 Fed. Rep. 104, 108; Wells v. Armstrong, 29 Fed. Rep. 216, 218; The City of Springfield, Id. 923, 36 Fed. Rep. 568. No fault being established in the schooner, the libel-ants in the first case are entitled to a decree for damages and costs. The second libel must be dismissed, with costs.