The Wenona

29 F. Cas. 685, 4 Ben. 207
CourtDistrict Court, N.D. New York
DecidedMay 15, 1870
StatusPublished

This text of 29 F. Cas. 685 (The Wenona) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The Wenona, 29 F. Cas. 685, 4 Ben. 207 (N.D.N.Y. 1870).

Opinion

HALL, District Judge.

This suit is prosecuted by William T. Fraser, the owner of the schooner Fremont, against the propeller We-nona, to recover the damages occasioned by a collision between those vessels on Bake Erie, about nine o’clock in the evening of the 29th day of November. 1869. The Fremont sunk soon after the collision, and, with her cargo of salt, was totally lost.

The libel alleges that, about nine o’clock in the evening, while the Fremont was on a voyage from Oswego to Sandusky, and near the middle of Lake Erie the masthead light of the Wenona was discovered nearly ahead, and apparently about a mile and a half distant; that the schooner was then moving southwest by west half west, about five or six miles an hour; that she was properly officered and manned, and had the proper lookout, and displayed the required signal lights; that as soon as the masthead light of the Wenona was discovered, a torch light was lighted, and conspicuously displayed on the Fremont, and that such torch was kept lighted and swung on the Fremont until on or about the moment of the collision; that after said masthead light was discovered, the Fremont kept her said course, and very soon after, the red and green lights of the propeller were discovered ahead of the schooner, and apparently about a mile off; that the schooner kept her course, and a few minutes afterwards the hull of the propeller was discovered on the port bow of the schooner, and the propeller seemed to be crossing the bow of the schooner; that the propeller continuing to approach the schooner with great velocity, and a collision being inevitable, and the propeller being about to run down the schooner, the master of the schooner, to lessen the force of the blow, ordered the helm of the schooner to be put to port; that the propeller immediately thereafter struck with her stem the port side of the schooner, on her weather bow, at an angle from eight to ten points, staving in the bow, and smashing the planks and timber of the schooner, so that the schooner and her cargo sank and-were totally lost, about an hour after the collision took place. The libel also alleges that the weather was hazy, with rain, and that the wind was from the south.

The answer alleges that the propeller was properly officered, manned, and navigated, and had the proper lookout and signal lights, and was not in fault in respect to the collision; and it denies all the allegations of the libel, which are inconsistent with the statements of the answer. It then states that while the propeller was proceeding on a course east three-quarters north, a flash light was seen at a considerable distance off, about half a point on the propeller’s port bow; that the flash light appeared alone for a short time, when a green light was seen from the propeller, dead ahead, or nearly so; that the wheel of the propeller was put a-starboard, and she swung and continued to swing to port; that the green light opened on the propeller’s starboard bow, and afterwards the green light, of the schooner disappeared, and her red light became visible; that the wheel of the propeller was put hard a-starboard, and her engine was stopped and backed; that soon afterwards the propeller and schooner came in collision, the schooner striking the propeller on her starboard bow, at an angle which the respondents were unable to state precisely.

These statements of .the pleadings are mea-gre and indefinite, rather than full and precise; and there is, in some respects, considerable discrepancy between the allegations of the parties and their proofs. The proof, on the part of the Wenona, is, that although her general course was, by her own compass, east three-quarters north, as stated in the answer, her true and actual course was east by north half north, or three-fourths of a point to the northward of the course stated in the answer. The proofs on the part of the schooner are, that her heading was southwest by west half west, as stated in the libel, but her master testified that she was making about a point leeway. There was therefore, according to the proofs of the two vessels, only a single point between the lines of their respective keels, and still less difference in the lines of their actual progress, as they were proceeding in nearly opposite directions. There is little doubt that the speed of the propeller was about ten miles an hour, and the speed of the schooner about five or six miles an hour. The proof shows that the night was dark, with a drizzling rain; and although the witnesses state that there W'as no fog, they all agree that there was a haze upon the water. It was therefore a night not favorable to the early discovery of approaching signal lights, and for that reason great care and vigilant watchfulness, on the part of the lookout and officer in charge of each vessel, were required in order to prevent a collision.

(After giving an abstract of the statements of the principal witnesses from each vessel, rhe judge proceeded): Upon these pleadings and proofs, it is not difficult to reach a satisfactory conclusion in respect to some of the material facts of the case; but in respect to others, and particularly in respect to the distances between the vessels when the different changes of helm were made, and to the extent to which each vessel changed her course, there is much uncertainty and doubt. The general course, or rather heading, of the Wenona, before her course was changed to avoid a collision, was east by north half north, and that of the Fremont was southwest by west half west. They were therefore heading in nearly opposite directions, there being only a single point between the lines of their respec-[687]*687five keels, and the leeway which the Fremont was making made the lines of their actual progress nearly parallel. The Fremont, when her torch light was first seen from the "We-nona, was about half a point off the port bow of the latter. The Wenona was more nearly directly ahead of the Fremont, but probably about a quarter of a point off her starboard bow. But such bearings are only approximations to mathematical accuracy, for when a light is seen half a point or more off the bow of a moving vessel, and its bearing is deliberately and carefully estimated by the eye only, without the use of a compass or other instrument to determine its bearing, such estimate may be deemed a close one if it is within a quarter of a point of the true bearing. Estimates of time and estimates of distance — particularly the distance between vessels approaching each other in a dark, hazy, rainy night — are still more unreliable; but, nevertheless, it is upon such and similar estimates, and upon the conflicting testimony of witnesses not always disinterested and unprejudiced, that courts of admiralty are compelled to decide important collision suits, according to their views of the preponderance of the testimony and the probabilities of the case.

The estimates of the respondent’s witnesses in respect to the distance between the vessels and the time that elapsed between the first exhibition of a torch light and the collision, if entirely reliable, would show that the vessels were then two miles or more apart; but their testimony in respect to the subsequent management of their own vessel and the angle at which the vessels struck, as well as the testimony on the part of the libellant, renders it most probable that when the torch light was first seen, the vessels were not more than a mile and a half apart. The wind was between south and south-south-east, and probably between south and south by east.

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Bluebook (online)
29 F. Cas. 685, 4 Ben. 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-wenona-nynd-1870.