TANEY, Circuit Justice.
This is a case of collision; in cases of this description, it almost always happens that there is a conflict in the testimony; and the case before the court is not altogether free from that difficulty. It is admitted, that the brig Laurel was at anchor in the Chesapeake Bay. about two miles below the lighthouse on Willough-by’s Point, the lighthouse bearing west from the brig; it appears, that it is usual for vessels to anchor at that place, and also for smaller vessels, like the schooner, to sail over it. The collision took place about five-o’clock, or a few minutes before, in the morning of December 0th, 3.856, when the day had not yet dawned; the wind was heavy from N. N. W., and squally, with frequent flaws; the night was starlight with a few scuds; the brig headed about N. N. E., being swung round a little by the flood-tide, it being, as the pilot on board the Laurel says, near the last of the flood.
The first question in dispute is, whether the brig had a signal-light hung out at the proper place; and upon this point there is some contrariety in the testimony. If she had not such a light, the fault was undoubtedly on her part, and she would have no claim for the damage she sustained by the collision. But I think the proof on behalf of the Laurel, is conclusive on this question. The testimony of every witness who was on board the Laurel, concurs in establishing-this fact; and it is impossible to doubt it, without imputing to them a concerted plan of misrepresentation; they all speak positively as to the particular period of time at which they noticed the light, and the pilot says he saw it there immediately after the collision. I see no sufficient ground for doubting their truth, or the accuracy of their several statements.
There is some apparent conflict between this evidence and that offered by the respondents, but none, I think, that can impair its weight. These witnesses say they saw no light before the collision, except the lamp brought up by the captain of the Laurel when he heard the alarm. All of this may be very true, they may not have observed the signr.l-light forward, in the moment of excitement and alarm at the impending collision; their attention was fixed upon the position of the ship which they were so nearly and rapidly approaching, and not upon the manner in which she was lighted. The-nilot of the Laxirel himself says, that when he came on deck, at the first alarm, he did not observe whether the signal-lamp was burning or not, because his attention was fixed upon the approaching schooner; but went forward immediately after the collision, and saw that it was burning and in its proper place. The mate of the schooner, indeed, says, that after the-collision was over, and the schooner had anchored, he saw the light and also one aft, put up; the amount of this is nothing more than that he then saw them up; not, I presume, that he saw them in the-act of going up; and if he is even understood to mean that he saw when they were actually going up, his testimony would hardly be sufficient to outweigh the concurring testimony of so many witnesses to the contrary; for, it must be remembered, that this witness was the look-out at the head of the schooner, and had strong temptations to acquit himself of the charge of neglect of duty, in not observing a signal-light, until he was within fifty yards of the vessel.
I think, therefore, that no negligence or [1089]*1089fault can be imputed to the brig; and tbe question remains to be examined, whether there was negligence' or fault on the part of ihe schooner. In this part of the case there is no material conflict of testimony; and I take the facts as stated by the witnesses for the respondents.
K appears, that, the Adelaide had been all that night beating into the capes, and up the bay, against a heavy head wind; she had lost her flying-jib, and was less manageable on that account, and was endeavoring to reach an anchorage in Hampton Roads; she had made her way so far up as to be nearly abreast of the light-boat on Willoughby’s Point The wind, as the captain of the schooner states, was about N. N. W., when the Laurel was first seen, and before the helm was put up. the schooner was heading W. N. W., being closehauled to the wind and with all her sails set; she was standing across the bay from the eastern side, and the Laurel, it appears, was lying at anchor about two miles below, east of the light-boat, and directly in the track of the Adelaide. It was a starlight night, in which a vessel under sail could have been seen at the distance of more than a mile, although she carried no light; the Adelaide was seen by those on board the Laurel at that distance; yet it appears. and is proved by the testimony of the respondents, that no one on board the schooner saw the Laurel, until they had come within fifty yards of her. I do not see how this can be accounted for, except by the want of a proper look-out. It is true, that the mate was stationed, it is said, as a look-out ahead; but it is not sufficient that a person should be stationed as a look-out, and be called a lookout; he must perform that duty, and perform it diligently; and it is impossible to believe that a vessel like the brig, with a signal-light up, could not have been seen by a diligent look-out on board the Adelaide, long before she approached within fifty yards. The mate says he is an experienced and competent look-out; this may be so; and it may have happened, and probably did happen, that heading a little to the windward of the Laurel, she was hid from their sight by the sails of their own vessel, as they stood upon or walked on the deck; and being unaccustomed, as he says, to the navigation of the Chesapeake, he may have supposed that no vessels anchored in that wide water, and kept his look-outratherfor vessels which, with that wind, might be expected to come down the bay. But this is no excuse for the omission; it was his duty to keep a vigilant lookout to the leeward as well as to the windward and ahead, and if he had done so, he could not have failed to see the light at a much greater distance. As this negligence produced the collision, the fault was on the part of the schooner, and she is responsible for the consequences. His want of acquaintance with the usages of navigation in the Chesapeake, and the usual places of anchor- ( age, would be no excuse for his omission; be was bound to know, or to have some one on board who knew, the usages and customs of vessels accustomed to navigate these waters, and the places at which they occasionally anchored.
Some testimony has been offered for the purpose of showing, that the light may have been obscured, and the mate of the schooner prevented from seeing it, by a haze on the water, and by an obscurity and darkness produced by contiguous land. As to the haze on the water, the mate himself says he saw the light after the Adelaide had anchored, after the collision; and the pilot on board' the Laurel says, that the Adelaide anchored at the distance of about three hundred yards. And surely if the haze on the water did not prevent him from seeing the lights, after the collision, at the distance of three hundred yards, he ought to have seen them before the collision, at an equal distance, and might and would have seen them, if he had looked out for them in the proper direction. And as to shadows or obscurity supposed to be occasioned by the vicinity of the land; there was no land to the west, to which point she was standing at the time, nor indeed, anywhere else nearer than five miles, and all of it low, with no elevated points; it is impossible that it could have exercised any influence in obscuring the light.
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TANEY, Circuit Justice.
This is a case of collision; in cases of this description, it almost always happens that there is a conflict in the testimony; and the case before the court is not altogether free from that difficulty. It is admitted, that the brig Laurel was at anchor in the Chesapeake Bay. about two miles below the lighthouse on Willough-by’s Point, the lighthouse bearing west from the brig; it appears, that it is usual for vessels to anchor at that place, and also for smaller vessels, like the schooner, to sail over it. The collision took place about five-o’clock, or a few minutes before, in the morning of December 0th, 3.856, when the day had not yet dawned; the wind was heavy from N. N. W., and squally, with frequent flaws; the night was starlight with a few scuds; the brig headed about N. N. E., being swung round a little by the flood-tide, it being, as the pilot on board the Laurel says, near the last of the flood.
The first question in dispute is, whether the brig had a signal-light hung out at the proper place; and upon this point there is some contrariety in the testimony. If she had not such a light, the fault was undoubtedly on her part, and she would have no claim for the damage she sustained by the collision. But I think the proof on behalf of the Laurel, is conclusive on this question. The testimony of every witness who was on board the Laurel, concurs in establishing-this fact; and it is impossible to doubt it, without imputing to them a concerted plan of misrepresentation; they all speak positively as to the particular period of time at which they noticed the light, and the pilot says he saw it there immediately after the collision. I see no sufficient ground for doubting their truth, or the accuracy of their several statements.
There is some apparent conflict between this evidence and that offered by the respondents, but none, I think, that can impair its weight. These witnesses say they saw no light before the collision, except the lamp brought up by the captain of the Laurel when he heard the alarm. All of this may be very true, they may not have observed the signr.l-light forward, in the moment of excitement and alarm at the impending collision; their attention was fixed upon the position of the ship which they were so nearly and rapidly approaching, and not upon the manner in which she was lighted. The-nilot of the Laxirel himself says, that when he came on deck, at the first alarm, he did not observe whether the signal-lamp was burning or not, because his attention was fixed upon the approaching schooner; but went forward immediately after the collision, and saw that it was burning and in its proper place. The mate of the schooner, indeed, says, that after the-collision was over, and the schooner had anchored, he saw the light and also one aft, put up; the amount of this is nothing more than that he then saw them up; not, I presume, that he saw them in the-act of going up; and if he is even understood to mean that he saw when they were actually going up, his testimony would hardly be sufficient to outweigh the concurring testimony of so many witnesses to the contrary; for, it must be remembered, that this witness was the look-out at the head of the schooner, and had strong temptations to acquit himself of the charge of neglect of duty, in not observing a signal-light, until he was within fifty yards of the vessel.
I think, therefore, that no negligence or [1089]*1089fault can be imputed to the brig; and tbe question remains to be examined, whether there was negligence' or fault on the part of ihe schooner. In this part of the case there is no material conflict of testimony; and I take the facts as stated by the witnesses for the respondents.
K appears, that, the Adelaide had been all that night beating into the capes, and up the bay, against a heavy head wind; she had lost her flying-jib, and was less manageable on that account, and was endeavoring to reach an anchorage in Hampton Roads; she had made her way so far up as to be nearly abreast of the light-boat on Willoughby’s Point The wind, as the captain of the schooner states, was about N. N. W., when the Laurel was first seen, and before the helm was put up. the schooner was heading W. N. W., being closehauled to the wind and with all her sails set; she was standing across the bay from the eastern side, and the Laurel, it appears, was lying at anchor about two miles below, east of the light-boat, and directly in the track of the Adelaide. It was a starlight night, in which a vessel under sail could have been seen at the distance of more than a mile, although she carried no light; the Adelaide was seen by those on board the Laurel at that distance; yet it appears. and is proved by the testimony of the respondents, that no one on board the schooner saw the Laurel, until they had come within fifty yards of her. I do not see how this can be accounted for, except by the want of a proper look-out. It is true, that the mate was stationed, it is said, as a look-out ahead; but it is not sufficient that a person should be stationed as a look-out, and be called a lookout; he must perform that duty, and perform it diligently; and it is impossible to believe that a vessel like the brig, with a signal-light up, could not have been seen by a diligent look-out on board the Adelaide, long before she approached within fifty yards. The mate says he is an experienced and competent look-out; this may be so; and it may have happened, and probably did happen, that heading a little to the windward of the Laurel, she was hid from their sight by the sails of their own vessel, as they stood upon or walked on the deck; and being unaccustomed, as he says, to the navigation of the Chesapeake, he may have supposed that no vessels anchored in that wide water, and kept his look-outratherfor vessels which, with that wind, might be expected to come down the bay. But this is no excuse for the omission; it was his duty to keep a vigilant lookout to the leeward as well as to the windward and ahead, and if he had done so, he could not have failed to see the light at a much greater distance. As this negligence produced the collision, the fault was on the part of the schooner, and she is responsible for the consequences. His want of acquaintance with the usages of navigation in the Chesapeake, and the usual places of anchor- ( age, would be no excuse for his omission; be was bound to know, or to have some one on board who knew, the usages and customs of vessels accustomed to navigate these waters, and the places at which they occasionally anchored.
Some testimony has been offered for the purpose of showing, that the light may have been obscured, and the mate of the schooner prevented from seeing it, by a haze on the water, and by an obscurity and darkness produced by contiguous land. As to the haze on the water, the mate himself says he saw the light after the Adelaide had anchored, after the collision; and the pilot on board' the Laurel says, that the Adelaide anchored at the distance of about three hundred yards. And surely if the haze on the water did not prevent him from seeing the lights, after the collision, at the distance of three hundred yards, he ought to have seen them before the collision, at an equal distance, and might and would have seen them, if he had looked out for them in the proper direction. And as to shadows or obscurity supposed to be occasioned by the vicinity of the land; there was no land to the west, to which point she was standing at the time, nor indeed, anywhere else nearer than five miles, and all of it low, with no elevated points; it is impossible that it could have exercised any influence in obscuring the light. I take the distance of the land, as well as of the anchorage of the schooner after the collision, from the testimony of the pilot; he is undoubtedly the most competent judge, and he can have no personal feeling, as his conduct is not impeached on either side.
But even if those on board the Adelaide could acquit themselves of the charge of negligence in relation to the look-out, their conduct, after they discovered the Laurel, would render their vessel responsible for the damage; for, it is obvious, upon their own testimony, that the collision could even then have been avoided by proper seamanship and ordinary precaution. When they saw the Laurel, it seems, they supposed her to be under weigh on the opposite tack, and from the manner in which she was heading, supposed they would pass each other safely, by putting the helm of the schooner hard up, so as to make her fall off from the wind, and say, they would have cleared her, if the Adelaide had not been struck by a flaw of wind which checked her in falling off. Now, they knew from the experience of the night, that the wind was squally; they kpew that she had her mainsail, foresail and jib, all set and drawn nearly flat, as they were sailing close upon the wind; they knew also, that the pressure of the wind upon the mainsail had a constant tendency to prevent her falling off. and to make her- luff, when a flaw of wind struck her, and with all this knowledge, they relied altogether upon the rudder to make her fall off, and [1090]*1090took no measures to assist or hasten it, by removing the counteracting influence of the mainsail. If that sail had been lowered, or the main sheets let go, the wind would have pressed altogether on the head sails, the schooner would have fallen off much more readily, and the flaw of wind which struck her would have aided her motion in that direction instead of retarding it This precaution was rendered still more necessary and obvious, because she had lost her most important head sail, her flying-jib; and did not, therefore, so readily obey the rudder when the helm was put hard up. And when the vessels were so near, and the danger of collision so imminent, it was the duty of the schooner to have brought the sails to the aid of the rudder, and to have removed the strong counteracting influence of the mainsail drawn, as it was, nearly flat.
The neglect of these means can only be accounted for, by the mistake they made in supposing the Laurel to be under weigh and heading to the windward of the Adelaide upon the opposite tack; they seem, therefore, to have been under the impression, that a very slight falling off by the schooner would clear them of each other. It is difficult to imagine how practised seamen, like the master and mate, could have committed this mistake, when they were within fifty yards of the vessel, with her sails all furled, and on a starlight night; such a mistake can hardly be an excuse for running into her, when it might have been avoided by proper exertions, although she was at anchor. The mate says he was considerably excited, when he first saw the Laurel so near and directly before him; this was natural enough; but it ought not to have deprived him of his calmness and self-posses-, sion, nor prevented him from observing the true position of the vessel, and doing everything that seamanship could accomplish to prevent running into her. And if there had been no previous negligence in the lookout, the omission after she was seen, to use the means in their power to avoid the collision, would, of itself, make the Adelaide responsible. Upon each of these grounds, therefore, I think the decree of the district court is erroneous, and the libellants entitled to recover the full amount of the damages sustained by the Laurel.