[420]*420The district judge (Shipman, D. J.), delivered an opinion, dismissing the libel with costs. On appeal this decision was reversed by Judge Nelson, who delivered the following, opinion: .
By the circuit court—Nelson, Circuit Judge:
The collision in this case occured between the steamer Western Metropolis and the schooner Mary C. Town, about eight o’clock on the evening of the 10th of February, 1864, on the Potomac, a few miles above Blackstone Island and lighthouse. The steamer was coming up the river, and schooner going down—rthe wind northerly, so that she had it nearly free —moving at the rate of about eight knots an hour; the steamer at half speed, intending soon to anchor—about five knots. The night was not dark, the steamer having been seen some four or five miles ahead, by the hands on the schooner, and the schooner, some one and a half or two miles (though there is some diversity of opinion among the hands on board), by the steamer. Each vessel, however, saw the other in time to adopt and follow out proper measures to avert the disaster. As it was the duty of the steamer to take care of the schooner, and avoid her in passing, assuming that she kept her course, the onus rests upon the steamer to show that she did not keep it, or some other fault that Contributed to the collision. This she has undertaken, and .insists that the schooner changed her course as the two vessels approached éach other, and thereby defeated the movement of the steamer, to pass her in safety by starboarding her helm, and passing under her (the schooner’s) stern, the latter porting about the same time and giving way in the same direction,
• 'The whole defense turns upon this position. The court below. found the schooner in fault, and dismissed the libel on this round. After the best examination we have been O able to give the case, we regret to say we cannot concur in this opinion. We are forced to the conclusion that this [421]*421movement of the schooner was made under impending danger, and in extremis, and for which the steamer must be held responsible. The clear weight of the proof is, that the steamer was within three hundred to four hundred yards of the schooner, when the latter ported her helm, and nearly dead ahead. The combined speed of the two vessels was about twelve or fourteen miles an hour. They must have come together in one and a quarter minutes, and less than two, after the change of course of the schooner. There were five hands on the schooner, including the master, who were all on deck and witnessed the collision, and who maintain this account of it. In addition to this, there are five of the hands on board of the steamer, including the pilot, who have been examined for the libelants, and confirm it; so do ithe master, second mate, and wheelsman of the steamer, examined by the claimants. The master, Hilton, says the schooner was a mile, more or less off, when he discovered her, would not name the distance; that it was a very short time afterwards (would not say how short), the collision occurred ; and further that it occured a very short time after the schooner chánged her course—would not say how short —although pressed by the counsel for the libelants. This master seems to have been quite uninformed as to his duties. He says, if two vessels, one a steamer, the other a sailing vessel, are approaching head and head, it is the duty of each to port and go to the right, and that there is no distinction between a steamer and sailing vessel, and two steamers as to the duty. The second mate, Cowen, says, he went up on the forecastle, on hearing the schooner reported, that he then first saw her, that it was about five minutes after he saw her the collision occurred ; that the schooner was about a quarter of a mile off when he first saw her, that she was very dose when she crossed the steamer’s bows, and he adds, “as near as I can judge, she (the schooner) was not more than the length of our ship, two hundred and fifty or three hundred feet off, when she altered her course.” Again, he re[422]*422peats in answer to the question.: About how far was-the schooner from you .when she commenced to put-her helm to port % I judge, somewhere between two hundred and fifty or three hundred feet. The quarter-master, Kain, who was at the wheel, says, the schooner was a very short distance off when- he first saw her; that the master blew the whistle a .very short time after this. And to the question: How-long was it after Mowing the-whistle that the schooner kept away-.? he answered right away: How soon ? quick as thought.! “She had not kept away before that, had she?” “Ho, sir.” -The same witness states: “I put the wheel hard a starboard by his .(captain’s) orders.?’ “ Before, or after the whistle blew!” “immediately after whistle blew.’-’
How this testimony strongly corroborates the account .of the collision, given by the hands on the schooner. To them the steamer appeared approaching nearly ahead, and as she approached them without any indication of a change of course it is not surprising that some alarm should exist op board the schooner. The master of the latter says, in this state of anxiety, and when a collision seemed almost inevitable, he heard the whistle of the steamer blow one long blast, which he took to mean, or indicate that the schooner should go to the light, and he immediately ported her helm and bore away. How at this point of time, the hands on the schooner say, the steamer was only some three hundred or four hundred yards off The master of the steamer says, that the collision was a very short time after the .change of the course of the schooner. The second mate of the steamer says that the schooner was only two hundred and fifty or three hundred feet off when the change took place, and the quarter-master, the wheelsman, that the schooner did not change her course till after the captain blew the whistle. This witness also says that the schooner was but a very short distance off when he first saw her, that the whistle was blown a very short time after this, that it was still later [423]*423when the schooner first changed her course, that he did not starboard her helm, and of course made no change in the course of the steamer, till after the whistle was blown. The pilot of the steamer agrees with the hands on the schooner, that the latter was not over three hundred yards off when she changed her course, and according to this account of the transaction, the schooner, when her light was first discovered, was supposed by him and the captain to be a vessel at anchor, and that they steered directly towards her, till they discovered that she was under way, when they starboarded the helm.
Upon the whole we feel a very strong conviction upon the evidence that the steamer had approached so near the schooner before her change of course, that there was not only a well grounded fear for a collision, but there was actual danger of it. This must be so whether we regard the weight of it as establishing the distance at three hundred or four hundred yards, at the 'time of the change, or a very short time after the schooner changed her course (according to the master of the steamer and some of the hands), or some two hundred and fifty or three hundred feet off as stated by the quarter-master and wheelsman.
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[420]*420The district judge (Shipman, D. J.), delivered an opinion, dismissing the libel with costs. On appeal this decision was reversed by Judge Nelson, who delivered the following, opinion: .
By the circuit court—Nelson, Circuit Judge:
The collision in this case occured between the steamer Western Metropolis and the schooner Mary C. Town, about eight o’clock on the evening of the 10th of February, 1864, on the Potomac, a few miles above Blackstone Island and lighthouse. The steamer was coming up the river, and schooner going down—rthe wind northerly, so that she had it nearly free —moving at the rate of about eight knots an hour; the steamer at half speed, intending soon to anchor—about five knots. The night was not dark, the steamer having been seen some four or five miles ahead, by the hands on the schooner, and the schooner, some one and a half or two miles (though there is some diversity of opinion among the hands on board), by the steamer. Each vessel, however, saw the other in time to adopt and follow out proper measures to avert the disaster. As it was the duty of the steamer to take care of the schooner, and avoid her in passing, assuming that she kept her course, the onus rests upon the steamer to show that she did not keep it, or some other fault that Contributed to the collision. This she has undertaken, and .insists that the schooner changed her course as the two vessels approached éach other, and thereby defeated the movement of the steamer, to pass her in safety by starboarding her helm, and passing under her (the schooner’s) stern, the latter porting about the same time and giving way in the same direction,
• 'The whole defense turns upon this position. The court below. found the schooner in fault, and dismissed the libel on this round. After the best examination we have been O able to give the case, we regret to say we cannot concur in this opinion. We are forced to the conclusion that this [421]*421movement of the schooner was made under impending danger, and in extremis, and for which the steamer must be held responsible. The clear weight of the proof is, that the steamer was within three hundred to four hundred yards of the schooner, when the latter ported her helm, and nearly dead ahead. The combined speed of the two vessels was about twelve or fourteen miles an hour. They must have come together in one and a quarter minutes, and less than two, after the change of course of the schooner. There were five hands on the schooner, including the master, who were all on deck and witnessed the collision, and who maintain this account of it. In addition to this, there are five of the hands on board of the steamer, including the pilot, who have been examined for the libelants, and confirm it; so do ithe master, second mate, and wheelsman of the steamer, examined by the claimants. The master, Hilton, says the schooner was a mile, more or less off, when he discovered her, would not name the distance; that it was a very short time afterwards (would not say how short), the collision occurred ; and further that it occured a very short time after the schooner chánged her course—would not say how short —although pressed by the counsel for the libelants. This master seems to have been quite uninformed as to his duties. He says, if two vessels, one a steamer, the other a sailing vessel, are approaching head and head, it is the duty of each to port and go to the right, and that there is no distinction between a steamer and sailing vessel, and two steamers as to the duty. The second mate, Cowen, says, he went up on the forecastle, on hearing the schooner reported, that he then first saw her, that it was about five minutes after he saw her the collision occurred ; that the schooner was about a quarter of a mile off when he first saw her, that she was very dose when she crossed the steamer’s bows, and he adds, “as near as I can judge, she (the schooner) was not more than the length of our ship, two hundred and fifty or three hundred feet off, when she altered her course.” Again, he re[422]*422peats in answer to the question.: About how far was-the schooner from you .when she commenced to put-her helm to port % I judge, somewhere between two hundred and fifty or three hundred feet. The quarter-master, Kain, who was at the wheel, says, the schooner was a very short distance off when- he first saw her; that the master blew the whistle a .very short time after this. And to the question: How-long was it after Mowing the-whistle that the schooner kept away-.? he answered right away: How soon ? quick as thought.! “She had not kept away before that, had she?” “Ho, sir.” -The same witness states: “I put the wheel hard a starboard by his .(captain’s) orders.?’ “ Before, or after the whistle blew!” “immediately after whistle blew.’-’
How this testimony strongly corroborates the account .of the collision, given by the hands on the schooner. To them the steamer appeared approaching nearly ahead, and as she approached them without any indication of a change of course it is not surprising that some alarm should exist op board the schooner. The master of the latter says, in this state of anxiety, and when a collision seemed almost inevitable, he heard the whistle of the steamer blow one long blast, which he took to mean, or indicate that the schooner should go to the light, and he immediately ported her helm and bore away. How at this point of time, the hands on the schooner say, the steamer was only some three hundred or four hundred yards off The master of the steamer says, that the collision was a very short time after the .change of the course of the schooner. The second mate of the steamer says that the schooner was only two hundred and fifty or three hundred feet off when the change took place, and the quarter-master, the wheelsman, that the schooner did not change her course till after the captain blew the whistle. This witness also says that the schooner was but a very short distance off when he first saw her, that the whistle was blown a very short time after this, that it was still later [423]*423when the schooner first changed her course, that he did not starboard her helm, and of course made no change in the course of the steamer, till after the whistle was blown. The pilot of the steamer agrees with the hands on the schooner, that the latter was not over three hundred yards off when she changed her course, and according to this account of the transaction, the schooner, when her light was first discovered, was supposed by him and the captain to be a vessel at anchor, and that they steered directly towards her, till they discovered that she was under way, when they starboarded the helm.
Upon the whole we feel a very strong conviction upon the evidence that the steamer had approached so near the schooner before her change of course, that there was not only a well grounded fear for a collision, but there was actual danger of it. This must be so whether we regard the weight of it as establishing the distance at three hundred or four hundred yards, at the 'time of the change, or a very short time after the schooner changed her course (according to the master of the steamer and some of the hands), or some two hundred and fifty or three hundred feet off as stated by the quarter-master and wheelsman. It is not surprising (when we take into account the disparity in the size and momentum of these vessels—the steamer of 2,500 tons and the schooner 150—that the approach to each other, within three hundred or four hundred yards distance, which at the combined speed of the vessels, they would meet in less than two minutes, or according to the distance as fixed by the wheelsman of the steamer, within about as many seconds, that some alarm should exist on board the schooner, and even if the change of course was in a direction that contributed to the disaster, which is doubtful, the fault must be attributed to the steamer.
The river at the place of collision is from four to five miles wide; there was therefore no excuse for the steamer in her near approach to the schooner in passing her. There [424]*424was abundance of room clear of all obstructions, to have passed, giving to her a wide berth. The truth seems to be that the schooner was not discovered by the steamer till very near her. The master would not say a mile off, though strongly pressed; some' of the hands say half a mile ; although the evening was not dark, and a vessels lights could have been seen two or three miles without difficulty. Some ill feeling seem to have existed between the master and the pilot; both according to the proofs, were engaged in giving orders at the time of the disaster, and the master strongly intimates that the pilot was incompetent. 'Still the wheels-man says he took orders from the pilot, and the lookout, that he communicated with the same, and even the master, Hilton, says he obeyed his orders. The decree below reversed, and reference to acertain damages.