BETTS, District Judge.
The rule in equity established in the courts of this state does not disqualify a party named on the record from being a witness in the cause, if he has no certain interest in the event. 1 Johns. 556; 2 Cow. 186-189; 1 Johns. Ch. 550; 6 Johns. Ch. 212. Some of the judges in those cases were indisposed to consider a mere contingent liability to costs as amounting to a disqualifying interest; but the present chancellor seems to hold a party incompetent for that cause. 6 Paige, 565. At law the rule is clearly so, and the parties to the record, who are merely nominal, or who consent to be sworn, are not admissible as witnesses when objected to. 4 Johns. 140; 20 Johns. 142; 1 Wend. 20; 4 Wend. 453; 7 Cow. 650; 19 Wend. 353. The rule of disqualification because of connection with the suit is not so stringent in all the states. The cases upon the subject exhibiting the diversity of the law in this respect are collected in Cowen & Hill’s notes to Phil. Ev. pp. 134-145, 1548; Greenl. Ev. § 347; but this court is not called upon to estimate their relative authority, or at liberty to discuss the question made as an open one. The supreme court of the United, States has settled the law definitely, for all the national tribunals, that a party to the record is an incompetent witness in the cause. This is placed upon grounds of policy which do not admit of the exceptions recognized by other courts. De Wolf v. Johnson, 10 Wheat. [23 U. S.] 367, 384; Scott v. Lloyd, 12 Pet. [37 U. S.] 145; Stein v. Bowman, 13 Pet. [38 U. S.] 209. A party is held disqualified to testify in such cause, although his interest be nominal or entirely extinguished, or be protected by a deposit of money, equal [1347] to any liability he may become subject to. Proceedings in maritime courts are governed by general rules applicable to cases at law and in equity, where no special course has grown up from long usage in those courts, or has not been appointed by positive law. The Boston [Case No. 1,673]. Prize causes and suits for salvage are prosecuted in the names of all parties interested in the recovery, and the suitors named in the pleadings are admitted as witnesses to sustain the action. This is put upon the ground of necessity; but it is also to be observed that those actions are founded in principles of public policy, and look to other results than the mere rights and rewards of individual suitors. They are equally anomalous in the permission to parties not having a common right and interest — on the contrary, often setting up interests hostile to each other — to imite in the same action, as in the admission of such parties to testify, not for each other alone, but each also for his personal interests. So by Act Cong. July 20, 1796, § 6, seamen are compelled to join in actions for wages earned in a common voyage, brought against the vessel; yet the suits are distinct and several, and have all the properties of actions prosecuted by parties independently of each other, — [Sheppard v. Taylor] 5 Pet. [30 U. S.] 714, — and the co-libellants, in such actions must accordingly be admissible witnesses for.each other, as in separate suits. There is no common interest, even contingently, as to costs. If the decree be against the libel, one libellant is not •chargeable with the costs incurred by the respondents on account of his co-libellant, and can only be made liable for those created by his individual claim. Neither the claim of necessity, of long usage and custom, or the appointment of positive law, applies to the position or quality of the witnesses offered in this case. They are not brought forward as indispensable parties in the cause, and who are the only witnesses present, and capable of giving evidence to the facts in question. They stand upon the record as common sufferers for a tort, and in that position are disabled from testifying for their associates. The case of The Catherine of Dover, 2 Hagg. Adm. 145, cited in support of the admissibility of these libellants to testify, stands on a different doctrine. The witnesses admitted in that case were not parties to the action, nor proved to be interested in its event. I think the objection ought to prevail, and that the libellants must be excluded as witnesses in the cause. " ~
A petition being subsequently presented to the court, praying that the names of the master and crew of the schooner might be stricken from the record, an order to that effect was entered, and the testimony of these witnesses and other proofs were then offered in support of the allegations of the libel.- The material facts will appear sufficiently in the opinion of the court.
George Wood and L. B. Woodruff, for claimants.
The burden of proof is on the libellants. The Iron Duke, 9 Jur. 477. The vessel complaining must be free from all blame. The Friends, 1 W. Rob. Adm. 485; Id. 488; 3 Car. & P. 531.
F. B. Cutting, in reply, fqr libellants.
The Neptune was palpably off her course; she must take the burden of accounting for her situation. The Perth, 3 Hagg. Adm. 417; Story, Bailm. §§ 608, 609, 611; 3 Hagg. Adm. 316; The Jupiter, Id. 320; 3 Car. & P. 528. Childs says he saw the schooner right ahead on her starboard, and he turned to windward. This was a violation of law. The H. B. Foster [Case No. 6,290]; Story Bailm. § 611; 3 Kent, Comm. 230; The Cynosure [Case No. 3,528]; Id., 3 Hagg. Adm. 320. The steamboat should have kept off to starboard. 1W. Rob. Adm. 481; The Friends, Id. 487; The Shannon, Id. 467; The Cynosure [supra]; The Narragansett [Case No. 10,019], If it was dark the Neptune was in fault in running at full speed. 3 Hagg. Adm. 417; Id. 176; [Stokes v. Saltonstall] 13 Pet. [38 U. S.] 181.
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BETTS, District Judge.
The rule in equity established in the courts of this state does not disqualify a party named on the record from being a witness in the cause, if he has no certain interest in the event. 1 Johns. 556; 2 Cow. 186-189; 1 Johns. Ch. 550; 6 Johns. Ch. 212. Some of the judges in those cases were indisposed to consider a mere contingent liability to costs as amounting to a disqualifying interest; but the present chancellor seems to hold a party incompetent for that cause. 6 Paige, 565. At law the rule is clearly so, and the parties to the record, who are merely nominal, or who consent to be sworn, are not admissible as witnesses when objected to. 4 Johns. 140; 20 Johns. 142; 1 Wend. 20; 4 Wend. 453; 7 Cow. 650; 19 Wend. 353. The rule of disqualification because of connection with the suit is not so stringent in all the states. The cases upon the subject exhibiting the diversity of the law in this respect are collected in Cowen & Hill’s notes to Phil. Ev. pp. 134-145, 1548; Greenl. Ev. § 347; but this court is not called upon to estimate their relative authority, or at liberty to discuss the question made as an open one. The supreme court of the United, States has settled the law definitely, for all the national tribunals, that a party to the record is an incompetent witness in the cause. This is placed upon grounds of policy which do not admit of the exceptions recognized by other courts. De Wolf v. Johnson, 10 Wheat. [23 U. S.] 367, 384; Scott v. Lloyd, 12 Pet. [37 U. S.] 145; Stein v. Bowman, 13 Pet. [38 U. S.] 209. A party is held disqualified to testify in such cause, although his interest be nominal or entirely extinguished, or be protected by a deposit of money, equal [1347] to any liability he may become subject to. Proceedings in maritime courts are governed by general rules applicable to cases at law and in equity, where no special course has grown up from long usage in those courts, or has not been appointed by positive law. The Boston [Case No. 1,673]. Prize causes and suits for salvage are prosecuted in the names of all parties interested in the recovery, and the suitors named in the pleadings are admitted as witnesses to sustain the action. This is put upon the ground of necessity; but it is also to be observed that those actions are founded in principles of public policy, and look to other results than the mere rights and rewards of individual suitors. They are equally anomalous in the permission to parties not having a common right and interest — on the contrary, often setting up interests hostile to each other — to imite in the same action, as in the admission of such parties to testify, not for each other alone, but each also for his personal interests. So by Act Cong. July 20, 1796, § 6, seamen are compelled to join in actions for wages earned in a common voyage, brought against the vessel; yet the suits are distinct and several, and have all the properties of actions prosecuted by parties independently of each other, — [Sheppard v. Taylor] 5 Pet. [30 U. S.] 714, — and the co-libellants, in such actions must accordingly be admissible witnesses for.each other, as in separate suits. There is no common interest, even contingently, as to costs. If the decree be against the libel, one libellant is not •chargeable with the costs incurred by the respondents on account of his co-libellant, and can only be made liable for those created by his individual claim. Neither the claim of necessity, of long usage and custom, or the appointment of positive law, applies to the position or quality of the witnesses offered in this case. They are not brought forward as indispensable parties in the cause, and who are the only witnesses present, and capable of giving evidence to the facts in question. They stand upon the record as common sufferers for a tort, and in that position are disabled from testifying for their associates. The case of The Catherine of Dover, 2 Hagg. Adm. 145, cited in support of the admissibility of these libellants to testify, stands on a different doctrine. The witnesses admitted in that case were not parties to the action, nor proved to be interested in its event. I think the objection ought to prevail, and that the libellants must be excluded as witnesses in the cause. " ~
A petition being subsequently presented to the court, praying that the names of the master and crew of the schooner might be stricken from the record, an order to that effect was entered, and the testimony of these witnesses and other proofs were then offered in support of the allegations of the libel.- The material facts will appear sufficiently in the opinion of the court.
George Wood and L. B. Woodruff, for claimants.
The burden of proof is on the libellants. The Iron Duke, 9 Jur. 477. The vessel complaining must be free from all blame. The Friends, 1 W. Rob. Adm. 485; Id. 488; 3 Car. & P. 531.
F. B. Cutting, in reply, fqr libellants.
The Neptune was palpably off her course; she must take the burden of accounting for her situation. The Perth, 3 Hagg. Adm. 417; Story, Bailm. §§ 608, 609, 611; 3 Hagg. Adm. 316; The Jupiter, Id. 320; 3 Car. & P. 528. Childs says he saw the schooner right ahead on her starboard, and he turned to windward. This was a violation of law. The H. B. Foster [Case No. 6,290]; Story Bailm. § 611; 3 Kent, Comm. 230; The Cynosure [Case No. 3,528]; Id., 3 Hagg. Adm. 320. The steamboat should have kept off to starboard. 1W. Rob. Adm. 481; The Friends, Id. 487; The Shannon, Id. 467; The Cynosure [supra]; The Narragansett [Case No. 10,019], If it was dark the Neptune was in fault in running at full speed. 3 Hagg. Adm. 417; Id. 176; [Stokes v. Saltonstall] 13 Pet. [38 U. S.] 181.
BETTS, District Judge. The importance which this controversy has assumed on account of the amount of loss incurred by the collision, and of the question of the right navigation of the respective vessels, has caused a more prolonged examination of testimony and a wider discussion at the hearing than would seem demanded by the intrinsic difficulties of the case. A sailing vessel and a steamboat running in opposite directions, came in collision on the Sound, in the night time. The injury was received chiefly by the schooner, which sunk directly after the collision. The libellants charge the act to have been wholly the fault of the steamer, and that they are entitled to full remuneration from her for their losses. The schooner is alleged to be worth $3,000, and the property on board her, totally lost, about $1,000. The particulars on which the action is grounded stated in the libel, are, that the schooner was on her passage from Eastport, Maine, to New-York, and on the night of July 14, 1846, was standing about west, running about six or eight knots the hour, the wind being fresh and nearly north, when, between nine and ten p. m., she was run into by the steamboat Neptune, proceeding down the SouncJ from the city of New-York. The schooner had passed the light-boat stationed on the middle ground nearly opposite Stratford Point, about one mile south of that boat. The night was clear, and the schooner could be easily discerned at a considerable distance from the steamer. The schooner was cut nearly in two by the collision, and sunk almost immediately; the vessel, cargo, clothes, money and effects of the crew and passengers were totally lost, and two passengers, a woman [1348] and her child, were drowned. The libel alleges that the steamboat was carelessly, improperly and unskilfully navigated, and the disaster was occasioned solely thereby. That her crew, and those having her management, were inexperienced and incompetent, or else were careless or negligent; and that the disaster was occasioned without the fault of the schooner and her crew. The libellants are bound to prove their own conduct correct, both in what was done or omitted to be done on board their vessel. If their acts caused the collision, or essentially conduced to it, they must bear the consequences, and cannot call upon the steamer to contribute to their satisfaction, unless it appears she was equally in fault. The Catherine of Dover, 2 Hagg. Adm. 154; Id. 360. . They must further show that the schooner was well found, manned and equipped for the navigation in which she was employed; and they have no exemption in any of these particulars because the injury was received from a vessel propelled by steam. The action is for a tort. The complaining vessel must appear clear of blame, and also prove fault or negligence on the part of the other directly leading to the disaster. The Ligo, Id. 356. The law in no way justifies the notion that steam vessels are burthened with the sole risks and responsibilities of encounters with sailing vessels. The rule is reciprocal, placing both classes of vessels under a common liability and privilege; except that steamers are regarded as always possessing the means of avoiding a sailing vessel with a free wind, with the additional advantage of being able to stop their headway or take a retrograde movement. Those means they are bound to employ to avoid a sailing vessel at anchor, or embarrassed in her position or movements, or when keeping her own course. This sendee is exacted of steam vessels in contribution to the common safety of navigation, and is due as well when a sailing vessel is under difficulties from the improvidence or unskilfulness of those managing her, as if brought upon her by mischance, or without fault on her part. A sailing vessel under way has no right to hold steamers approaching her, responsible under all circumstances, for her security against them. She has also an important duty to perform in preventing a collision. She must keep steadily the course she is running when near a steamer, or if she departs from it, the change must, if practicable, be made in a manner to aid the steamer in avo'iding her. ■. —
If in this case the defence set up is established, that the schooner, when too near for the steamer by any manoeuvre to escape her, luffed suddenly across the bows of the Neptune, and received the injury in that manner, the action cannot be sustained, and the claimants should be discharged from it with costs. Upon this fact the pleadings and proofs are in direct conflict. That issue embraces the substantial merits of the case. The question upon the competency of the libellants’ witnesses to testify in the cause will be afterwards noticed. Witnesses on the different vessels so habitually disagree in their opinions of the immediate or remote causes of a collision at sea, and of the incidents of the occurrence observed on both sides at the same time, that courts can place little confidence in their expressions of opinion, and can rarely feel it prudent to decide causes of collision upon testimony of that character. Receiving with great distrust. the opinions and judgments of witnesses so circumstanced, however intelligent and worthy the individuals may be, the court looks chiefly to facts stated by witnesses to have occurred within their personal knowledge. What a witness asserts he did at the time or did not do on his own vessel, is generally more satisfactory evidence of the fact than the opinions and belief of a dozen others, formed from what they supposed they saw or heard on another vessel.
(The court here analyzed and collected carefully the testimony of the various witnesses; but it is not deemed necessary to the clear apprehension of the principles of this decision to report that part of the opinion.)
The men on the deck and the one at the wheel of the schooner all testify positively that no movement of her helm or change of' her course was made when the steamer was coming upon her. The effort of the claimants is to prove that the schooner suddenly luffed after the steamer had starboarded her helm and was going clear of her, and was thus thrown across the bows of the Neptune after it was too late for the latter to take any fui’ther measures to avoid her. It is to be remarked that no witness on the steamer says he observed any change of the schooner's course until the wheel of the Neptune had been starboarded, and she began coming up to the wind. This movement, in a moment of alarm and the obscurity of the night, might easily have been attributed to the schooner, so that the latter would seem to the witnesses to be luffing, when her broadside was brought to view only because of a change of direction by the steamer. I hold it is not proved upon this evidence that the schooner was guilty of any fault or neglect in her movements, conducing to the collision.
Only one other fact respecting her conduct need be noticed. It is alleged that the schooner was concealed from the view of the Neptune by a thick black cloud, hanging over the eastern horizon, and that under those circumstances it was a fault on her part to run without, exhibiting a light as a warning to vessels approaching her. I shall not discuss the evidence upon this subject for the purpose of determining the degree of darkness occasioned by that state of the atmosphere. The witnesses differ widely in their estimates of that fact; but admitting the sky was in places or wholly overcast, di[1349] rectly before or at the time of the collision, the darkness is not proved to have been so dense as to prevent the schooner being seen far enough from the steamer to afford time to the latter to take precautions for avoiding her. The witnesses on the steamer state facts which afford a strong presumption that the schooner was in plain sight in sufficient time for the pilot to have stopped and backed the engine of the Neptune before the vessels came together; and it was a plain neglect of his duty not to take that precaution. 2 Hagg. Adm. 173; 3 Hagg. Adm. 414. There was, besides, a lilameable want of prudence in the pilot in running the steamer at her full speed, if the obscuration of the sky was as great as he represents it to have been; and above all, there was culpable remissness in not placing a competent watch upon the forward deck, in a position giving the best advantage for a thorough look-out ahead. These were acts of gross carelessness, and of a character in themselves to east upon the steamer the responsibility for the collision. X only add, in respect to the relative positions of the two vessels, that in my judgment the decided weight of evidence is that the Neptune was on a track to the south and leeward of the schooner, when her wheel was starboarded and her head veered to the north. This was a violation of nautical rules, and such want of care and skill as to render the steamer responsible for the consequences which followed. The Friends, 1 W. Rob. Adm. 478. The question of the competency of the master and crew of the schooner to testify for the libellants in the cause was incidentially adverted to in the decision upon the motion to exclude them because parties to the record. The point has been presented again to the attention of the court on this hearing, and after their.names had been stricken from the pleadings. Witnesses of this class it would seem were always regarded as admissible in admiralty in causes of collision, although intimations are thrown out that it may be proper to take releases to obviate final objections. 3 Hagg. Adm. 323. I see no necessity for this. The witnesses stand merely in the relation of servants and agents to the owners of the ship and cargo, acting within the plain scope of their authority. That character does not render them incompetent witnesses for their principal when he is a party to the suit. 1 Greenl. Ev. § 410; 1 Phil. Ev. 50, Cowen & Hill's Notes, p. 1525.
The decree in this cause will accordingly be in favor of the libellants for the whole value of the schooner and cargo, with costs.