The Tonawanda

24 F. Cas. 44, 32 Leg. Int. 229, 11 Phila. 516, 1875 U.S. Dist. LEXIS 69

Opinion

CADWALADAR, District Judge.

The immediate cause of the disaster was the mistake in porting, instead of starboarding, the wheel of the steamer. That the light which had been discerned from her was the schooner’s green light, appears not only from the testimony of the man upon the lookout in the steamer, but likewise from the subsequent conduct of the master of the steamer. Almost instantly, but too late to remedy the evil, he endeavored to change the wheel to starboard, in order to correct the mistake. This effort he would not have made, unless he had known that it was the green light which he had seen. So I should think, and so the assessor informs me.

The proximate cause having thus been ascertained, secondary questions arise from the twofold consideration that the steamer and the schooner were each in fault in not keeping a proper lookout. How does this apply to the vessels respectively? If the schooner had been discerned in time from the steamer, the mental “confusion,” to which the assessor attributes the blunder of porting instead of starboarding, would not have occurred. This only confirms the conclusion which has otherwise been reached, that the steamer was in fault.

The remaining question is, whether the schooner was also in fault in such wise that she must answer for half the damages. The argument against the schooner is, that if the steamer had been discerned in time, the flash of the schooner’s torch could have been exhibited soon enough to have warned the steamer. There is no reason to doubt, that if she had been thus warned in season, the collision would not have occurred. This gives an imposing aspect to the argument. But the true question is, whether, assuming that the torch-light ought to have been shown, the omission to show it was contributory, as a proximate cause to the collision.

TONA WAND A. The. See Case No. 14,109.

It was contended in argument, that the enactment of congress requiring a sailing vessel in certain cases, to exhibit such a flashlight, was equivalent to the requirement, as to a steamer, that she shall have a white light. But the comparison fails in several respects. The torch which bums out in two or three minutes, and is relighted by hand, cannot exhibit a fixed and continuous uniform indication like a steamer’s white light. Moreover, the white light is ordinarily dis-cernable before the steamer’s red or green light can be seen. The act of congress, on the contrary, does not, in ordinary cases, require the torch light to be shown till after the red or green light shall have been seen. Nor does the act require the exhibition of such a light in every case Of a sailing vessel and a steamer passing near to each other. The enactment is, that “every sail-vessel shall, on the approach of any steam-vessel, during the night time, show a lighted torch upon that point or quarter, to which such. steam-vessel shall be approaching.” Certainly, if the lights are red to red, or green to green, this enactment does not apply, because, although the vessels may pass near to each other, the steamer is not, in either ease, approaching, in a nautical sense,- on any point or quarter. She is not approaching, within the words or meaning of the act, but is on a course to pass clear. It is not necessary to define all those other cases in which the enactment may or may not apply, or to consider how far it may, in such respects, be interpretable with reference to prior usages of navigation as to torch lights. Nor is it necessary to inquire whether it would have been the duty of the schooner to flash her torch at any given distance, if there had been a proper lookout from her, and the steamer had been discerned at the proper time. The reason that these questions do not require consideration is, that in the case which actually occurred, the insufficiency of the lookout, if it was, in any respect, a cause of danger, was not a proximate cause of the disaster. The sole cause to which the collision is properly attributable, was the mistaken movement of the steamer.

The question thus decided is between the two vessels. Whether any different or modified question might arise in a proceeding against the schooner at the suit of the own- ; ers of her cargo, cannot be determined upon | the present state of the reeord. The steamer alone is condemned as responsible for the whole damage.