Lacombe, Circuit Judge.
The petitioner, a Danish corporation, was the owner of two steam-ships, the Geiser and Thingvalla, which collided on the high seas, not far from Sable island, on August 14, 1888. The Geiser sank almost immediately in deep water, the steamer and her cargo being totally lost. The Thingvalla’s bow was smashed in, but, by careful management, she was navigated, stern first, into Halifax, N. S. The petitioner’s interest in the Thingvalla and her pending freight, which was duly appraised at $64,680.66, has been deposited in the district court for the eastern district of New York. The petitioner, claiming that the collision occurred through no negligence of those in charge of the Thingvalla, prayed to be decreed free from responsibility for the loss or damage occasioned by the collision. Several insurance companies, and others interested in the cargoes laden on the steamer, appeared and joined issue with the allegations of the petition, contending that the collision was caused by the fault of the Thingvalla. The district court held the Thingvalla free from fault, and that the petitioner was entitled to the benefit of the limitation of liability, provided for in the act of March 3,1851, and its amendments. Appeal was taken to the circuit court, which affirmed the decree of tbe district court, and certain of the respondents appealed to this court. 42 Fed. Rep. 331.
The collision happened about 4:30 a. m. It was dark, the weather being cloudy, with a little rain, but there was no fog, nor such degree of haziness as would prevent vessels from seeing each other’s lights at a sufficient distance easily to maneuver so as to avoid one another. As to the navigation of both steamers there is no particular dispute. The Geiser was outward bound, on a course of E. $ S. magnetic; the Thing-[766]*766valla inward bound, on a course óf “W. IS., a little more west,” magnetic. The Thingvalla carried some of her sails-, including tlie jib "and the foretop-mast stay-sail.. -Her regulation lights were set and burning. The navigating officer of the Thingvalla, — her first officer,. lens Petersen, — seeing the Geiser’s head-light, and, immediately after, her-two side lights, bearing a half point on his port bow, ported, and telegraphed to the engine-room to “stand by.” As the navigating officer of the Geiser — her first officer, Brown — went down with his ship, we are without positive information as to what lights he saw and navigated to. Her lookout, who was also drowned, reported a light on her port'bow. Her third officer, J. Duus Petersen, who was on the bridge with BroAvn, the navigator, says it bore about a quarter of a point on the port bow. His glance at it was but momentary, as he at once stooped dowm to open the valve to let more steam into the steering gear. He took the light to be a vessel’s side light, but could not be certain whether it was green or red. When he rose, after manipulating the valve, he saw it wras a steamer, and saw both side lights about right ahead. As soon as the lookout reported the lights, Brown and the third officer walked to the port side of the bridge, looked at the light, and the former immediately gave the order, “hard a-starboard.” The Thingvalla soon lost the red light of the other steamer, and, realizing that there was risk of collision, her navigator signaled to the engines, “stop, full speed astern,” and ordered the helm hard a-port. Eealizing the risk of collision, the navigator of the Geiser also ordered her engines, “full speed astern.” The wheels of both steamers were kept at port and starboard, respectively, without change, both vessels swinging to the northward and coming into collision, the Thingvalla striking the Geiser on her starboard side, just abaft the mainmast.
The respondents insist that a primary cause of the collision was the improper position of the Thingvalla’s white light; that it did not show properly. Two of the Geiser’s watch on deck at sighting survived the disaster. One of them, a boy, was not in the employ of the petitioner at the time of the trial, and was not -called. The other was her third officer, who, as stated above, looked at the reported light so hastily that he'was unable to say whether it was red or green, and “does not remember to have seen her top light.” A passenger who first saw the Thingvalla after the collision, when she, having backed;out, was about 1,500 feet aft, saw only her red and green lights. It was then daybreak. It is argued that, because the lookout of the Geiser reported “a light,” and not “a steamer,” he could not have seen the white light. And the same is urged as to her first officer, who was a competent navigator, and whose orders can be accounted for only on the theory that he did not know it was a steamer to which he Avas maneuvering. But the master of the Geiser saAv the Thingvalla’s mast-head light whehe Avas called on deck, just before the collision, saw it again when she Avas backing away, and again when he was swimming. The second officer of the Geiser also saw it, as he climbed aboard the Thingvalla, [767]*767after tbe collision. And tbe evidence from the Thingvalla shows that the white light was there and properly burning. It hung on the fore-top-mast stay. The captain saw the reflection on the foretop-gallant stay, and her first officer testified to the same effect. There is no evidence to show that the light was so hung relatively to the foretop-mast stay-sail that it was liable to be obscured thereby, and a mere suggestion that such might possibly be the fact is not sufficient foundation for a judgment that there was a failure to show a mast-head light, through fault of the Thingvalla. As the learned district judge remarks: “it might also be suggested that some sudden dash of rain obscured the light.” Positive testimony as to tbe presence of the light is not to be outweighed by mere inferences, where the single witness, who testifies to a failure to see the white light before the collision, is unable to say whether the light he did see was green or red, and the extent of whose evidence is that “he does not remember to have seen the while light;” that he “had no occasion to look for it,” when lie stood up after opening the valve, as he then saw the steamer itself.
It is contended that the white light was improperly placed, in that il was not more than 20 feet above the deck, when it should have been upwards of 46, which is her beam. The first officer of the Thingvalla was asked: “Question. How far off can your lights be seen at night? Answer. You can see about eight miles off, — the head-light: that mast is twenty feet high.” Other than this there is no evidence in the case as to elevation above the hull. The latter part of the answer was irrespon-sive to the question, and only by inference applies to the light. It was not fastened to the foremast, nor even to the jib stay, which leads to the foremast-head, but to the foretop-rnast stay, and how high up on that sn?v v was fastened nowhere appears. We clo not think there is suili-‘Aciv evidence to warrant a finding that the light was set lower than the rules inquired.
Vov can the Thingvalla be hold in fault for porting. Her navigator v white light and both side lights, indicating an approaching si.. so situated as to have her (the Thiiigvalla) ahead. lie saw tin», lights, as h» judged, about !„.U' a point on the port bow, a position from which ho. the skie light overlap a half point) the three lights of ü:o Thingvali *, .miff in: risible to tbe approaching steamer, indicating to her that tlio riimgvalia hod her (the Geiser) airead.
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Lacombe, Circuit Judge.
The petitioner, a Danish corporation, was the owner of two steam-ships, the Geiser and Thingvalla, which collided on the high seas, not far from Sable island, on August 14, 1888. The Geiser sank almost immediately in deep water, the steamer and her cargo being totally lost. The Thingvalla’s bow was smashed in, but, by careful management, she was navigated, stern first, into Halifax, N. S. The petitioner’s interest in the Thingvalla and her pending freight, which was duly appraised at $64,680.66, has been deposited in the district court for the eastern district of New York. The petitioner, claiming that the collision occurred through no negligence of those in charge of the Thingvalla, prayed to be decreed free from responsibility for the loss or damage occasioned by the collision. Several insurance companies, and others interested in the cargoes laden on the steamer, appeared and joined issue with the allegations of the petition, contending that the collision was caused by the fault of the Thingvalla. The district court held the Thingvalla free from fault, and that the petitioner was entitled to the benefit of the limitation of liability, provided for in the act of March 3,1851, and its amendments. Appeal was taken to the circuit court, which affirmed the decree of tbe district court, and certain of the respondents appealed to this court. 42 Fed. Rep. 331.
The collision happened about 4:30 a. m. It was dark, the weather being cloudy, with a little rain, but there was no fog, nor such degree of haziness as would prevent vessels from seeing each other’s lights at a sufficient distance easily to maneuver so as to avoid one another. As to the navigation of both steamers there is no particular dispute. The Geiser was outward bound, on a course of E. $ S. magnetic; the Thing-[766]*766valla inward bound, on a course óf “W. IS., a little more west,” magnetic. The Thingvalla carried some of her sails-, including tlie jib "and the foretop-mast stay-sail.. -Her regulation lights were set and burning. The navigating officer of the Thingvalla, — her first officer,. lens Petersen, — seeing the Geiser’s head-light, and, immediately after, her-two side lights, bearing a half point on his port bow, ported, and telegraphed to the engine-room to “stand by.” As the navigating officer of the Geiser — her first officer, Brown — went down with his ship, we are without positive information as to what lights he saw and navigated to. Her lookout, who was also drowned, reported a light on her port'bow. Her third officer, J. Duus Petersen, who was on the bridge with BroAvn, the navigator, says it bore about a quarter of a point on the port bow. His glance at it was but momentary, as he at once stooped dowm to open the valve to let more steam into the steering gear. He took the light to be a vessel’s side light, but could not be certain whether it was green or red. When he rose, after manipulating the valve, he saw it wras a steamer, and saw both side lights about right ahead. As soon as the lookout reported the lights, Brown and the third officer walked to the port side of the bridge, looked at the light, and the former immediately gave the order, “hard a-starboard.” The Thingvalla soon lost the red light of the other steamer, and, realizing that there was risk of collision, her navigator signaled to the engines, “stop, full speed astern,” and ordered the helm hard a-port. Eealizing the risk of collision, the navigator of the Geiser also ordered her engines, “full speed astern.” The wheels of both steamers were kept at port and starboard, respectively, without change, both vessels swinging to the northward and coming into collision, the Thingvalla striking the Geiser on her starboard side, just abaft the mainmast.
The respondents insist that a primary cause of the collision was the improper position of the Thingvalla’s white light; that it did not show properly. Two of the Geiser’s watch on deck at sighting survived the disaster. One of them, a boy, was not in the employ of the petitioner at the time of the trial, and was not -called. The other was her third officer, who, as stated above, looked at the reported light so hastily that he'was unable to say whether it was red or green, and “does not remember to have seen her top light.” A passenger who first saw the Thingvalla after the collision, when she, having backed;out, was about 1,500 feet aft, saw only her red and green lights. It was then daybreak. It is argued that, because the lookout of the Geiser reported “a light,” and not “a steamer,” he could not have seen the white light. And the same is urged as to her first officer, who was a competent navigator, and whose orders can be accounted for only on the theory that he did not know it was a steamer to which he Avas maneuvering. But the master of the Geiser saAv the Thingvalla’s mast-head light whehe Avas called on deck, just before the collision, saw it again when she Avas backing away, and again when he was swimming. The second officer of the Geiser also saw it, as he climbed aboard the Thingvalla, [767]*767after tbe collision. And tbe evidence from the Thingvalla shows that the white light was there and properly burning. It hung on the fore-top-mast stay. The captain saw the reflection on the foretop-gallant stay, and her first officer testified to the same effect. There is no evidence to show that the light was so hung relatively to the foretop-mast stay-sail that it was liable to be obscured thereby, and a mere suggestion that such might possibly be the fact is not sufficient foundation for a judgment that there was a failure to show a mast-head light, through fault of the Thingvalla. As the learned district judge remarks: “it might also be suggested that some sudden dash of rain obscured the light.” Positive testimony as to tbe presence of the light is not to be outweighed by mere inferences, where the single witness, who testifies to a failure to see the white light before the collision, is unable to say whether the light he did see was green or red, and the extent of whose evidence is that “he does not remember to have seen the while light;” that he “had no occasion to look for it,” when lie stood up after opening the valve, as he then saw the steamer itself.
It is contended that the white light was improperly placed, in that il was not more than 20 feet above the deck, when it should have been upwards of 46, which is her beam. The first officer of the Thingvalla was asked: “Question. How far off can your lights be seen at night? Answer. You can see about eight miles off, — the head-light: that mast is twenty feet high.” Other than this there is no evidence in the case as to elevation above the hull. The latter part of the answer was irrespon-sive to the question, and only by inference applies to the light. It was not fastened to the foremast, nor even to the jib stay, which leads to the foremast-head, but to the foretop-rnast stay, and how high up on that sn?v v was fastened nowhere appears. We clo not think there is suili-‘Aciv evidence to warrant a finding that the light was set lower than the rules inquired.
Vov can the Thingvalla be hold in fault for porting. Her navigator v white light and both side lights, indicating an approaching si.. so situated as to have her (the Thiiigvalla) ahead. lie saw tin», lights, as h» judged, about !„.U' a point on the port bow, a position from which ho. the skie light overlap a half point) the three lights of ü:o Thingvali *, .miff in: risible to tbe approaching steamer, indicating to her that tlio riimgvalia hod her (the Geiser) airead. As the situation appeared to him, the steamers were meeting end on, or nearly so, and article 15 required him to alter his course to starboard. The respondent’s counsel has argued most elaborately and ingeniously that the navigator of the Thingvalla was mistaken as to the situation; that the vessels wore in fact on crossing courses, the Thiugvalla having the Geiser on her starboard bow. If that were so, article 16 required the Thing-valla to keep out of the way, and allowed her to do so by altering her course to starboard, if that would accomplish the object, the Geiser holding her course, if the situation was as respondents claim, the Thingvalla was not in fault for porting. But it is further contended [768]*768that the Thingvalla should have stopped her swing to starboard, and swung to port, as soon as she saw, by the disappearance of the Geiser’s red light, that she was swinging to starboard, and that there was risk of collision. There is little to add to the comments of the learned district judge on this contention. Looking at the situation after the event, it may be apparent that such a change of course would have avoided the collision; but the Thingvalla’s navigation must be judged by the knowledge she had, or ought to have had, at the time. Whether they were meeting, as her navigator believes, or crossing, as the respondents contend, the disappearance of her red light showed that the Geiser was changing her course in violation of the rules, which in the one case required her to port, and in the other to hold her course. Whether or not she would realize that fact, and alter her helm accordingly, the navigator of the Thingvalla could not know. An attempt on his own part to abandon the course, which the rules enjoined upon him in the one case, and permitted him in the other, might, so far as he knew, tend to produce the very mishap it was intended to avoid, by co-operating with a belated effort on the part of the Geiser to return to her true course, and he cannot, therefore, be held in fault for not taking the chance. He did what the rules required of him, when, seeing the mistaken maneuver of the Geiser, he stopped and reversed.
There is nothing in the suggestion of improper speed or insufficient lookout. The vessels sighted each other at sufficient distance to avoid collision without any difficulty, bad there not been improper navigatior of the Geiser after sighting. The decree is affirmed, with costs of this appeal to the petitioner against the appellants.-