THE LISBONENSE.
293
The case also involves a question of damages. The Iberia. was under charter, awaiting her arrival at New York, for a voyage from New York to Cadiz; and cargo had been actually engaged for the voyage, upon which she would have earned freight, less expenses, of $3,632.32. It has been generally supposed that the owner of aveseel, in case of total loss, is entitled to a recovery of the net freight upon the particular voyage, together with the value of his vessel and interest from the time of the loss; and that interest from the date of destruction is given in lieu of the profit which might have been derived from the subsequent use of his vessel. The Amiable Nancy, 3 Wheat. 546; The Columbus, 3 W. Rob. 164; The George Bell, 3 Fed. Rep. 581; The North Star, 44 Fed. Rep. 492. None of the authorities cited in the opinion of the learned district judge hold othei'Wise, except the case of The Freddie L. Porter, 8 Fed. Rep. 110. The question is not free from doubt, but the weight of authority seems to be in favor of limiting the recovery to the value and the interest from the time of loss, unless there is a loss of freight which would otherwise have been earned upon the particular voyage in which the vessel is lost. In estimating the value of the Iberia, the circumstance that she would have been able to earn a bounty allowed by the French law was an element of value, and was properly taken into consideration. No allowance was made for loss of bounty. There is no merit in the exceptions to this ruling, nor in the other exceptions which relate to the allowances of certain items of loss. . The decree of the district court is reversed, and the reo manded, with instructions. to enter a decre in conformity to .this opinion, allowing the appellant the costs of this court, and dividing. the costs of the district court. SHIPMAN, Circuit Judge, dissents from the conclusions of the foregoing opinion in regard to the Iberia's contributory
THE LISBONENSE. LA CHAMPAGNE. SINGLEHURST et at. v. LA cmU'AGNIE GENERALE LANTIQUE. (Circuit Court of Appeals, Second Circuit. December 13, 1892.) L CoLLISION-STEAMERS-CROSSING COURSES-INTERNATIONAL RULES.
The steamer La C., outward bound at night by way of the main ship and Gedney's channels, after passing Sandy Hook, sighted, about two miles off, the lights of the steamer L., ,about two points on the starboard bow, bound up the Iilor.th cl>annel and the swash, the axis of which crolUle8 the main ship channel at an angle on the southwest side of 10 3-4 points. The speed of La C. was about 12 knots, going with the ebb tide. The L. was going at full speed. 7 1-2 knots. When the L. was seen the engines of La C. were ordered to slow, which order for some reason was not obeyed; and her wheel was ported a little. so as to ::arr.v her along the south side of the channel, but her great draught vrevented any permanent change of eourse in that direction. About the same time the L. gave a
nDERA:L BEPOBTEB, '.'.j:.'.?..·.
voL 53.
., .
,..
.. W.,hl!ltl8 ,of a " The I.. her .headIng a halt point or a: 1R>1lit: bllt lOOn reI sMde4"hei':'fol'IDerootirse.': Soon after La C. stopped hel- \:!!gtnes, and In .,t,wlJeooiids reverlled"attllll speed,atthe same timeigivlnga signal of ,truelt the L.'s port quarter. that the vessel .. by. the rule/j" and by llrticle 19, ,thereof the L. ,wliB bound. to hilt ,course to. starboard in aCcordance with her 'siltt1ill,'and' her l'allure'to do so contributed to the collision; that La C, 1II11S111190 in 'fault for anuounoing by her answering signal a change to starkneW,fromher draught, that she could not carry . that the case was one for divided damages. 41 Rep. l22,
.·,'.I3lf1 . ,.
d to
....,Ch ... .. The splps,were
.. SAlmcPRESUMPTIONS.
':The' tact that deep-draught steamersflnd It necessary to take the main Gedney's channels does not ,warrant the assumption that aU . llghtsind,icate that they are coming down the main chandeep draught"and therefore entitled, under the "special cirrule, to the rlght of wsy over incoming steamers on their lIt:arboard 'hand;' ,:' " ... ADmssmn.ITY. In. collision case between steamers governed by the International rulell, It 11 'proper to exclude B statement by the captain of one of the vessell' lUitq, wIHt.in:f0rmati?ll he lotendoo to convey by a signal ot one whi8tle, as the, mean1t1g thereof." concluslveIy"determined by the rules.
&.
a.
In· a c(1]llslon case involVing the cdnduct of a French vessel, there were otrered .,In evidence as 'new proofs,' on appeal, the records ot the French a.tatements IDllde the ma,ter and certain members of' the crew in the course ot an eXl;\IP1J:mtion before a consularofilcer, a ot wJllcll record had been upon the opposite party as the maSter's protest' Held, that this rooc)1o(I was admisSible, in so far as the mmer'.i8tatements were concerned. The Potomac, 8 Wall. 590, followed. S;um., In 80 tar as the record contained statements of othen' than the master, It was only admissible in contradlction of testimony given by them at the trlal. and to. which their attention had been called when under examina· tion.
8AlOl"-EVIDll:NCm-PBOTEST--NEW PROOFS ON APPEAL.
in B collision case between stea'Ilers, the engine-room dial ot one of them, lIhowtng that provision was made tor three rates of speed, namely. full speed, half speed, and slow, Is lnadmlsslble to prove that the vessel comd have run at less than half speed.
Appeal from the District Court of the United States for the Southern District of New York. . . In Admiriilty. This is an appeal taken by Robert Singlehurst and others, owners of the British steaniship Lisbonense, from a final decree of the United States' district .court for the southern district of New aqjudging the Lisbonense solel;r at fault for her collision with steamship La Champagne, and dismissing appellant's cross libel with'costs. See 47 Fed. Rep. 122. A motion to suppress cei'ta.in depositions offered in this court as new proofs WU& 00 :Fe,d. Rep. 104. Decree reversed. Subsequent to the dental of the motion to dismiss, the depositions In quel!!tlon were by agreement of the counsel eliminated from the controversy, and the new proofs to be Qffered consist (,nlyof two items: First. A transcript of the engine telegraph dlal plate' on board La Champagne, showing that provision was made for three di'l'terent speeds while under way, namels, hlentement," (slowly,) "demi-vitesse," (halt speed.) awl
THE LISBON1l:N8J11.
295
''tonte-vltellBe,'' (tun speed.) Thfs wall offered for the purpotle of Gowing that La Ohampagne could have slackened ber speed from JW.t IPeed to Blow. Second. The original books kept by the French consulate In New York, eutitled "Reglstre des Actes de 1& Navigation," containing tM "Rapport de Mer" made on December 9, 1890, by the muter and certain of the oftlcel'8 and crew of La Champagne, and also by her pUot and the DJa&ter of her tug A8s1stance, and also a supplemental series of statements made on December 12th by the signeriJ of the orlgtnal "Rnpport de Mer" In consequence of a sharp contradIotion contained In the original "Rapport de Mer" between the French-speakIng atRants, on the one side, and the English-speaking amant&, (De V.... Sandy Hook pRot, and Porter, tug captain,) on the other.
Sidney Chubb, (R. D. Benedict, advocate,) for appellant. Jones & Govin, (Edward K. Jones, advocate,) f6r appellee. Before WALLACE, LACOMBE, and SHIPlIAN, Circuit Judges. LACOMBE, Circuit Judge. The facts in this case will best be presented by stating the findings of the district judge: On December 7, Lisbonense, a Iilteamer 270 feet in length, 32 feet beam, and dra"wing 19 1-2 feet, was bound into the port of New York on a voyage from the Brazils. La Champab'Ile, a steamer 503 feet long, 51 1-2 feet beam, and drawing 25 1-2 feet of water, was bound out from the same port. The latter, on account of her deep draught, was proceeding out around the Southwest Spit by way of the main ship channel. and Gedney's channel. The former was coming in by way of the south channel and the swash, the axis of which crosses the main ship channel at an angle on the southwest side of 10 3-4 points. Each vessel was in charge of a pilot, and tho master of each was on deck. The night was clear, but dark. Tho tide had been running ebb two hours, setting to the east or southeast. with a velocity of between 2 l\nd 3 knots. The wind was fresh from the northwest. La Champagne, in consequence of fog, had been detained over night in the lower bay, and resumed her voyat;e about 4 A. M. She passed the meridian of the Sandy Hook lights at 5 :20 A. M. As she passed she burned her private signal torches, And soon after burned a blue light for the pilot boat outside to receive her pilot. Just prior to the burning of these signals, while she was on the regular main channel course, which is E. by N.1·4 N., the red and white lights of the Lisbonense were seen about two points on the starboard bow. About the same time the green and white lights of La Champagne and her signal torches were observed by the Lisbonense, without knowing or noticing their precise colors or character, or understanding what line or what vessel they indicated. The Lisbonense was then on the usual course up the south channel about N. W. 3-8 N. The vessels at the time of sighting were about 2 miltJS apart, and respectively a mile and a mile and a half from the polnli of collision. The speed of La Champagne was about 12 knots over the ground; the 101-2 knots derived from her engines, running at 35 revolutions, being supplemented by wind and tide. The speed of the Lisbonense, allowing for retardation by wind and tide, was a little less than 71-2 knots. The captain of La Champagne, upon sighting the Lisbonense, observed her carefully with the alidade to whether her bearing changed or not in reference to the Decessit);
FEDERAL REPORTER,
vol. 53.
No apparent. La QhampaghEt'ingllted the l1e ordered to.$Iow, (an order which.was not transmitted, though he belie'V'M!itto be carried. out,) and "ported a little:to-"-as we call it-the southerly' side 8;nd that, time .,.Lisbonense) .bloWed the . wlustle." ThIS was Immedlatel,\' by ,one whistle from La. Champagne. The vessels were the1i:1a,Wntthree fourths of a mile apart. 1'he district judge finds that La Champagne "p6l1:ed her Mlm so as to (lhange her heading about one quarter of a point tostarQoard." 'rhat she did make such change is plain upon the evidence, but it .seems equally plain that suell. '-l:ttange and thesu1:lsl;lqueI1t stEladY,lng were before the excSnge'of whistles. 'The evidence of the captain of La Champagne that this was after the signals, but is would sU,{lport the nl:>t so· pOfliti've M, that of· the pilot, who places it before, while the libel.lUleges that IAiChampagne did not then port, (L e. aft?r signaling,) and the of the latter does not aver that she did thEm ,. but allegesfuat continuously "until the collision her course Was that of the lfue of the (main channel.)" We are satisfied, however, l1S waS the distTict judge, that the course of La Champagne was itt the southerly part of that channel, and that in an ebb tide, with)nol'thwest wind, ·,tohave headed more to the starboard would have exposed her to serious risk of going ashore. She kept herself Oil the right-hand side of:the channel as much as was prudently possible, :but she put herself on that side before the signals were eJtcltitnged. 'The ported "so as to change her heading half a point orapoirit only, Whereupon she steadie<t her helm upon the properoourse to go up the swash channel." The district judge finds iliat "thereby sheresl1nied SUbstantially the same course she was on before." The appellant Msigns this finding as error, contending that she Swung 'from half a poJ.ntto a point to starboard, and was steadied on'tha:t'new course. 'An examination of the evidence and of the chart satisfies us that the district judge was correct ill finding that upon giving her signalsM made no substantial change in her course. Disconnected references to the evidence of those on board might seem to 'support the appellant's contention; but, taken as a whole, that 'that she adhered to her intention-manifest from the nioIl1ent she entered the south channel-to hold her course b\' t,he soutli.l:tIid· swash chaniiel lights, (the two channels are in the course,) and the location of the collision confirms this conclusion: Had she steadied on the course to starboard, she would have crossed the axis onhe main channel to the eastward of the place of collision, proceeding, not as her cross libel avers, "up towards the swash channel," or, ashercaptainputs it, "upon the proper course to go up the swash channel," but toward the Romer shoals. The captain of La Ohampagne continued 'carefully to watch the Lisbonense, and, judging maneuvers necessary, stopped his, engines, and a few seconds afterwar,dsreversed at full speed, at the same time giving a signal of three whistles, which 'announced his reversal to the Lisbonense, and soon afterrepeared the same sigD'al. The Lisbonense was all the
'!'HE LISBONENSE.
297
time going at full speed and she continued at full speed until collision. The district judge finds the distance between the two vessels when the three whistles of La Ohampagne were blown to be from 1,500 to 2,000 feet. Just before collision the Lisbonense's helm was put hard astarboard to ease the blow, which nevertheless cut into her counter about two feet. The district judge found the Lisbonense in fault because, having given a signal of one whistle, she did not conform her course thereto, and held La Ohampagne free from fault. When the vessels sighted each other, La Ohampagne had the Lisbonense on her starboard hand. We do not understand that either side contends that the locality was not within coast waters, (covered by chapter 354 of the Laws of 1885,) where the revised international rules are to be followed, in which respect the case resembles that of The Aurania and The Republic, 29 Fed. Rep. 98, and does not call for an exact determination of the line where the "coast waters" end and the "harbor" of New York begins. The sixteenth article of those rules provides that if two ships under steam are crossing, so as to involve risk of collision, the ship which has the other on her own starboard side shall keep out of the way of the other. Had she been in the open ocean, La Ohampagne might have done this by coming to starboard, so as to allow the Lisbonense to go by,-a maneuvre, as her captain says, "so simple that there is no need of mentioning it," or she might have slowed or stopped so as not to reach the course of the Lisbonense till the latter had passed on, out of danger. We are satisfied, however, that the existing conditions of wind and tide, the depth of water in the south channel, the length and draught of La Ohampagne, were special circumstances involving such immediate dangers of navigation as would (under article 23) warrant her master in avoiding the particular maneuvre which compliance with the sixteenth article would naturally suggest. We are not satisfied, however, that down to the time when whistles were exchanged the navigators of the Lis· bonense either knew, or were fairly chargeable with knowledge of, the fact that the existence of such special circumstances was going to prevent La Ohampagne from conforming her navigation to the requirements of article 16. We are not prepared to assent to the proposition contended for by the appellee, that, because deep-draught steamers find it necessary to take the main and Gedney channel course, it is to be assumed that all steamers whose lights indicate that they are coming down the main channel are of deep draught. and as such, under the special circumstance rule, entitled to right of way over incoming steamers which are on their oWn starboard hand. Such may be the custom of the port, but it is not proved to be so in this case. Moreover, whatever doubt as to the character of the outgoing vessel might arise from the circumstance that she was in the main channel was in this case set at rest as soon as she signaled her Intention to take a course which deep-draught vessels could not follow. The authorities cited by appellee giving right of way to avesae1 going with the tide do not apply, as these steamers were not navigating in the same channel. 'If La Champagne were to navigate under article 16, the duty
vol. 53. Article 22 rElquired her, to hold her sighting,' trq.t ,bt}fore signaling,the pilot of La Champagne,al\l: above stated, ported a little, thus placing her a8 much un the side of the ,channel as was pr"\ldent, in view of the set of the tide, the of the wind, and the other special circumstances. Both thus proceeded on their respective navigatQrs of La Champagne aware of the fact that Elpeci.aJ. circumstances would prevent her maneuvering under the LisbonE;lnse'sstern by to starboard, and expecting, apparently, that the Lisbonense would yield La Champagne the right of way. (she being the, larger vessel,) possibl.v by going to port, or by slowing or swpping, (as, the Lisbonense had the title against her, $,lld steerage' a lower speed,) before she reached the Q9UJ:seof,La Champagne through the main channel; the navigat<>l18of the Lisbonense ignorant of the speciaJ circumstances, and that ,under, article 15 she, had the right of way. Unlessmsome, way the n,avigators of the Lisbonense were of the fact that La Champagne could not fulfill the obligations Of that their 'navigation accordiij,gly, or unless La Ohampagne made·some change in her own navigation, collision seemed inevitable;;, and 'up to the moment when there i,vas a change of situation ea.ch,e.J!pected the other to give way. The initiative was taken by the:'J;;isbollense, WbjohdiKlU:D.ded a one-blast whistle. Under the situation'tUHilbeunderstoooit, her duty Was plain,-she was to keep her course.. 'Fhe international rules have provided for no signal whereby ft,. ves$el which: intends to hold her course shull notif;r another o!that intention. Article 19 provides as follows: "in tAklngany course authorized or reqiIlred by these regulations, a Iteamship under ",'ay may indicate that ('.()urse to any other ship which she has in sightpy Ifigxtals on her steam whistle, namely: One short bla;;;t to mean, II am. directing my course to starbQal'd;' two short blasts to mean, 'lam dil'E!ctlngmy course to. port;' three short blasts to mean, 'I am going tull speed' astern.' The use· of these signals is optional, but if they are used the c::our8eof· the ship must be in accordance with the slgnal made."
Under. the act of February 28, 1871, (section 4412, Rev. St. U. S.,) and its .various amendments, the board of supervising inspectorlll have establililhed regulations to be observed by steam vessels whelJ passing each other in harbors and inland waters, which inclnde rules for :ghing signals by bla8ts of the steam whistle. "One short blast" and "two short blasts" are among the signals thus provided for, and the giving of such signals when steam vessels are approaching ea,chother is made compulsory. The meaning of those signals, however, is not the same as under the international rules. Ont' lthort bllUiltindicates only an intent "to pass to the right or port side oftb.e other;": two short, bla8ts, an intent "to pass to the left or starboard side ofthe other;'? but neither implies, ex that such passing lShall be accomplished by any change of course. So thai practioally;.in ll;lany e.ali!es, .the signal I!limplymeans, "I have the right uf way, and mean to keep it," or, "I waive my right of way, and will let you pass ahead of me," Of, "I ask you to waive. your right of way, and let .IQ8. keep on lIC):U to cross your To these aigna.la
.. rHE USBONENSE;
299
the inspectors' rules require an answer from the other vessel,-as· sent to the proposed navigation being expressed by alike signal to that received, dissent by an unlike signaL The international rule!:!, it will be observed, call for no merely answering signals, and re, quire the vessel giving it signal to alter her course in accordance with the signal made; the inspectors' rules provide for answering signals, but do not require that a change of course shall accompany a given signal Thus, with singular fatuity, it has been provided, by authority competent to regulate the giving of signals· by steam vessels bound in and out of seaboard harbors, that the same signal shall have a different meaning when sounded on one side or the other of a line which is certainly invisible, and possibly cannot be definitely located except by further legislation. In 1886 attention was called to this unfortunate condition of affairs by the learned district judge of the southern district of New York, in the case of The Aurania and The Republic, 29 Fed. Rep. 98. .That it adds to the perils of naviga· tion in and out of seaboard harbors is manifest. Certainly, there can be required no stronger proof of prudence, care, and skill in their profession on the part of those navigators, who in the face of such indeterminate regulations have for seven years piloted millions )f human lives over the debatable waters which intersect the fah'wavs from the open to the piers of New York, without some catas· trophe so serious as to make the responsibility for the continuance ·of such conditions unpleasant to contemplate. · In this particular case, however, both sides concede that· the 'maneuV'ers attending the collision were had in waters where the national rules control It does not appear that the navigators of either ship thought otherwise; but, reading their e,idence, it seems impossible to escape the conviction that the habit of navigating under this double set of rules operated to confuse the minds of one, if not of both, pilots, as to their obligations to sonnd whistles, and as to the meaning of the whistlp.s they did sound. The pilot ·of the Lisbonenso testified: ''I blew one whistle to let the steamer know I intended to ·pass ahead of him, * * * (that I) had the right of way," and "I understood his answer of one whistle to mean, 'All right.''' In an; ·swer to further questions as to custom among seafaring people in this port, he also testified that when "vessels are crossing-two vesmeeting end on, almost-the man that wishes to pass to the sta-r· board side blows one whistle, and the other vessel responds with one. That means both vessels pass to starboard,-keep to the right;each vessel to keep to the right." He added that, as he understOOd the situation, he ''had the right of way; * * * that was why he blew ono whistlo,'· so that La Champagne should "go clear of him," either by porting or by "slo'wing down and giving him a chance,-not crowding hOO." Evidently, he sounded his one-blast whistle with the understanding that it meant only what it does where the inspectors' rules apply, and did not require him to direct his course to starboard. The international rules, however, under which he was navigating, authorized him to blow such whistle only when he was directing his course to starboard under their authority or requirements; but under those very rules being on the starboard side of La Chani.
nDER..tL BEPOBTEB, voL 53.
pagne;and not advised oj!' peculiar ciroUlllStances affecting that vessel, 1118 ,was not authorized tlodireet his course to starboard., but QD, Ithe iOOu:tl'ary, required to keep his course. To have thus changed his oourse, though a fault under the rules, would probably not have OOen'by itself one contributfug to the collL..<>.i.on, as it would have brought the Lisbonense further to the eastward than she would have gone had she kept her course. Having given the one-blast signal, however,. the Lisbonensewas bound by article 19 to direct her course to starboard; and her failure substantially to make such change was a fault contributing to the collision, because by not so navigating she failed to reach the course of the other vessel as far ahead of her as by . her own signal she engaged to do. Had she substantially so changed her course, the collision would not have happened. We therefore concur withthe'district judge in holding the Lisbonense in fault. The of La Champagne also was apparently confused as to the meaning of the signals he received and gave. He testified: "[The Llsbonensel blowed one whistle, stgnlfYing· she wanted to cross my bow. aftdpass me· oil the' port hand. I acknowledged the signal, which Is ,.. ; ..,. stgn1ty.l,Dg that I understood what ,he was going to do. · ·.. tt Is the Qf I3teamshlps and steamboats about thlsharbor81ways to answer a signal given by another ship, to let them know you understand what they are doing. [I) answered tor that, and no other, reason. and gaTe no order because of having answered."
He added that he thought it was proper for the Lisbonerise to come Still, he "accepted the signal when it was given, for courtesy's sake, which is the prootice' of the port." Evidently, he understood the signals as meaning what they do 'under the inspectors' rules, namely, a proposition from 'the Lisbonense to pass him on his port side, and an assent by himself:to ,such maneuver, not appreciating the fact that when La Ohampagnegave her one-blast signal the nineteenth article required him todireether course to starboard. The captain of La Champagne testified· understood the signal of the Lisbonense to signify, "I remain on:the right; stele of· the channe!," and that La Ohampagne's signal on her the duty of ''keeping the right side of the channel." While we are satisfied that Champagne did keep as far to the starbOl:\rd as, under the special circumstances of the case, she cowd, with:prulience, we do not find from the evidence that sllbsequentJy to,t,he exchange of signals she directed her course to starboard, 19 required her to do to keep in accord with her own announceJ;uent of intention. Even if her lliomentary sheer to starboaJ;'d tool\, place, as the district judge found, after the exchange of Whistles, it was no more. a substantial directing of her course to staI'board than was ,the similar momentary sheer of the Lisbonense, ana innQ a. compliance with the promise of her signal. Had she directedher,coul'se to starboard the collision would not have happened; and ,while we. cannot hold h in fault for not doing so, under the spelr cial circumstances, we are of the opipion that, knowing of their existence, she was in fault for to a vessel not possessed of the lI8oD1eknowledge a change of course which could not carry out. to port, and·that she should have given a two-blast signaL
301
The Lisbonense, receiving such an answer to her own whistle, was entitled to assume that the vessel giving it was not 80 affected by special circumstances that she could not maneuver $0 as to keep out of the way of the Lisbonense by directing her course to starboard. Even in the sense in which the signals were interpreted by both pilots, La Champagne's signal whistle was a promise not to interfere with the Lisbonense crosRing her bows, whether by changing her own course to starboard or by checking her speed; and the pilot ·of La Champagne undertook to check her speed even before he gave the signal, by ordering the engine to slow,-an order which, for some unexplained reason, was not earried out. Had La Champagne conformed her navigation to the promise of her signal, under either in· terpretation of it, the collision would not have happened. 'fhe captain of La Champagne testifies that her pilot told him he was· on the p()int of giving a two-blast when the Lisbonense whistled. Such a signal would hMe indicated, certainly, that he not coming to starboard; that his purpose was to cross the bows of the Lisbonel1se, which, the special circumstances, he understood he had the right to do, and to which purpose the navigation of La Champagne adhered after the exchange of signaJs. ·When he received the one-blast signal from the Lisbonense he had the option either to answer "\\ith two blasts, to keep silent, or to answer, as he did, with one. In the first case he would have distinctly advised the Lisbonense that, despite article 16, he considered the situation rmch that La Champagne could not keep out -of her way; that he did not intend to do so by going to starboard; on the contrary, that he was the navigator of the Lisbongoing to sheer to port,-and ense would be charged with knowledge that La Champagne claimed to be navigating under the special circumstance rule, and expected him to keep out of her way. Had La Champagne kept silent, the Lisbonense would at least have been warned by that circumstance that there was some uncertainty as to what the former intended to do. But by answering with one blast she announced her intention to do the very thing she could not do. This was a fault. "Courtesy" might require an ans·wer to a signal, but certainly it did not call for an answer which, under the rules governing navigation, promised a maneuver· which special circumstances forbade her carrying out. Irrespective, therefore, of any faults in their subsequent navigation, the collision is to be attributed primarily to the giving by both vessels of signals, to the promise of· which the navigation of neither was substantiallv conformed. Although' the new proofs taken in the circuit court have neither altered nor made more certain the conclusions reached upon the apostles, the exception to their admission calls for an expression of -opinion from the court. As to the record of proceedings before the French consul, so much of it ,as contains the statements of the master is admissible under the authority of The Potomac, 8 'Vall. 590. In so far as it contains the statements of others, it would be admissible only in contradiction of testimony given by them in the case at bar, and to which their attention had been called when themselves under examination. The statements before the consul of all others than
801
FEDERAL BEl'ORTJIlR, ;vol.
53. disposition dial. No than 10 rno proof of her
the-master should tbereforeJbe,strieken out, a1l<la
.one knotsfand, ,even if.it wetedi$puted, the dial possibl.e sPeed. Tbe.appeUant excepted to. the: exclusion of the following question put to the captain of LaOhampagne: ''What information or instruoyou intend the .of the Lisbonense to. gather from your answ6r:loLone whistle tobisone whistle?" The exception is un· question was iInmatedal. The issue was one of neglithe whie\tJ.e with a single blast. The fact of what hEt by h,is :baa nothing to do with .that issue. The statute, as construed by thecolU'11 detines the mean,i;ng of the whistle; negligent:ina,Qunding it, his con· an<\;tq duet imlUlt: be :1;estedby de:ftni.tion,not by he intended his meaJ;l. . . ,. ." , '. . of the' district (lOurt is reversed, costs of this apto ,tij.e oItppellant, and 1;he ea,use. remandedto'that court for furtber. pr9,ceeding15 in..confo.J!Drlty with the decision. pf: this court. I,'
as to
Oircuit-Judge. ' When the ·vesselS discovered one another., .they were .about .twoDlile.apart,-+-LaCha.mpagne on a. (lOUl1SeW. the ,WbODeJUle,on a course'N.W. 3·8 N.; the former going at a speed of· about !12 knots with t:tle wind and tide, the latter nt a of .about. 7lr.2linots; La Cl:lampagne having the ,LisboneplW,i ll,b<mt on bow. At this time lJa. Ohwnpa,gne was"81bQQt1 1.2 miles ff9IIl ;tlJ.e place of collision,an,d t.4e,J4sbonenae WoltSJL,bo:ut 1 mile. WheR the vessels had :a.pproaohl}d: to"within abQlllia'mile.of. one anotll.er, the Lisbonense :gave La, a signal:q:f :o\t single the steam wllistle, and altered ller course 01'.80 point to lilt;arpoard. La Champagne's pilot underst,ood this to mean tPatthe. Lisbonense proposed to Pl,loSS ft,j:lrqss t4e o,f .lt4t and he answered the sjgual by one. pf a single fx;w.rr' LaCbampagne,;and the pilot of v.ndersto09. of La CM.,lPpagne as an assent ,the to the. proposition of the Lisf,;)onense. Owing to j;he conditions. of the wind., tide, 'channeL:wa,. :La Champagne not alter her course . Her pil9t knew. this when he.answered the sig. nal of the J"Jsbonense, to consent to,aJlowing the Lisbonto pass ahead of La. <+J48}nPl1gne. The. master of La Cham· pagne, however, supposed that his own pilot inten,o,edLa Champagne to pa.ss aJ;Lead of the ,aM that the Lisbone:p.se would give way, and he did,notunderstiffid the signals as.intended to indicate any rtb:e. ,exchange of Champagne .proceeded, .without changlng. .Jw. ,course or the vessels wereal.?0ut70pyards apart, :wh/3¥ her master, lIeeing the of the di(l not they werep,ramng rapl.dly to· getli.el', so as' to render theIisk ofcoUision serions, oItnd acting on his 0:wn judgment, orderedhEff and ill about 20 seconds Thefile ol'ders promptly executed, and at ordered itli.e,saw.e La Gp-ampagne gaViethe Lisbonensea signal of three
303 blasts of her whistle. The Llsbonense in :the mean time had kept on at full speed, but altered her course to port,: so as to bring her back upon her course prior to the exchange of signals, and, when overlapping the bows of La. Champagne, put her helm hard astarboard to throw her stern further, away from La Champagne, but the latter struck her about 20 feet forward of, the stern. Somewhat before the exchange of signals, in view of the approach of the Lisbonense, the pilot of La Champagne had ordered her engines slowed. By some inadvertence or misunderstanding this order was not communicated to the engineer, but the pilot was not aWHire of the omission. Upon these facts I agree with the conclusion of the majority of the court, that both vessels were guilty of fault contributing to the collision; but I differ with them in attributing as the fault the failure of each to observe the requirements of article 19, by directing her course to starboard after having given the other one blast of her steam whistle.'Neither pilot supposed that the sigDalswere given conformably with that article, but each BUpposed that the signal of the other was one given pursuant to the rules' of the supervising inspectors. Neitherwasnililled by the signal of the other,but ea.eh understood it according to its intended significance. When the signals were exchanged, there was ample time:anddistance for the vessels to regUlate iheir respective movements $0 as to avoid a collision. Under these circumstancea; it seems to me quite immaterial that neither directed the course of his vessel conformably with the requirements of the signal of article , When the vessels discovered each other, they were on crossing courses, and under the operation of the rule which required' Ia Champagne to avoid the 1Lisbonense, and required the Lisbonense to keep her course. At the distance from the intersecting point in theiJ courses at which each vessel was at the time, if both maintained their respective rates of 'speed, both would arrive at the intersecting point at substantially the same moment jand this fact must have been obvious to each before signals were exchanged, because during tne intervening distance there could not have boon any change of the bearings of their respective lights; Thus, for some little time before the signals were exchanged, the pilot of each vessel was bound to know that the situation demanded great vigilance, and that any infraction of the rules of navigation on his own part would embarrass the other, and might ,lead to' a: misunderstanding and precipitate a collision. was such that she could not un'l'he situation of La dertaketo fulfill her duty of avoiding the Lisbonense by altering her course to starboard,and passing astern of the Lisbonense; but this did not absolve her from the duty of avoiding the Lisbonense by some other maneuver, if any other was practicable. The choice was open to her of altering her course to port and going across the bows of the Lisbonense, if that could be done safely, or of reducing her speed until the Lisbonense should pass beyond the point where there was danger of collision. The pilot of La Champagne very prudently ordered her engines slowed to enable her to give way to the Usbonense, if he found that to be the safer way. Apparently, before he had fully determined what course to pursue, the Lisbonense gave
I'BDERA.L
53.
a8!pa.lof So single blast,aJUl this signal he immediately answered by a Uke signal. Both pilots ,understood these signals to mean that the Lisbonense intended to pass in front of the bows of La Champagne; The' fact .that these signals were exchanged is persuasive "vidence that in the judgment of both pilots, at the time, that was the px-eferable way of avoiding a collision, in view of the existing situa.tion.· . After these signals were exchanged, La Champagne could not prudently attempt to passin front of the Lisbonense, and the owy'thing she could do properly, as she could not alter her course to starboard, was to reduce her. speed, and proceed cautiously,. until it should .appear that the. Liabonense ha,d passed beyond the. point of d8ib.ger. La Champagner did not .reduce her speed. Her pilot probablYmiscalcula.ted .it, snppl;)Smg his order, to slow had been obeyed:. If that had been obeyed, it would not have been nee· to . stop and rev.erse· beforeth.e tilir;l.e when the master of La O1l&mpagne ordered,this to be. done. As it was, the pilot did not give in due master found itneoessary to interpose taking the responsibility of navigating the) He delayed· too long,re1ying on the judgment .of the pilot; .·1lfthe Lisbonense'hadnot changed her course after tl!.e of sfgnaIs, and La Champagne had stopped and backed she did, the oollision would not have taken place. The change.of by the Listo portibrought the vesseililconsiderably nearer together. It is impossible to determine just wlien this change of course was made.,·· Her duty was. to keep her course until danger of collision hadJ'beenpassed.. That dutyonher:part was as imperative, after the exchange of signals, as ·. was the duty on the part of La Champagne to do aU: in her power. ro· avoid the Lisbonense. If there were any circumstances in the situation which rendered it impracticable for the Lisbonense to maintain the courae she was on when she gave signal to La Champagne, she should, not have given that signal It may, be believed that if either vessel had done, her whole duty. pursuant to the rules of navigation, there would not have been a collision; but it cannot be demonstrated'that thefaiIure of.either to follow the rules' was innocuous. There was but little time for observation of the other by either vessel after the Lisbonense made her last change of course to· port. Each was then in a. situation which was full of. peril. All thatls manifest is that if La Champagne had stopped and backed in season, or if the Lisbonense had not, by altering her course to port, brought herself nearer to La Champagne, the collision would not have occurred. The case is therefore one for a division of the loss.
RIVERS V.BRADLEY.
305
RIVERS v. BRADIJEY et a.L (Cireuit Court, D. Routh Carolina. Deeember 23, 1892.)
1.
REMOVAL OF CAUSES-DIVERSE CITIZENSHIP·
.A dtizen of Massachusetts, who resides with his family in that state most of the year, but OWIlll valuable real estate in South Carolina, where he comQS once a year, or, at the furthl!st, two years, and spends a month, may remove from a South Carolina court to a federal court a suit brought ag::linst hJm by a citizen of South Carolina.
2.
SAME-NoMINAL PARTy-ENGINEER OF A RAILROAD TRAIN.
In an aetir.n by a train hand against the owner of a railroad for personal injuries, the engineer of the train being joined as a defenda.'lt, it was alleged that the injury "as caused by the defective sight and hearing of the engineer, and "by a broken bumper on one of the cars which the ants [plural] had negligt'ntl.v permitted to) remain broken." No facts were olleged showing that it was the duty of the engineer to control the cars, toaee that they were in good repair, or thnt he had any supenision over the train in the capacity of. conductor. Held, that the engineer was a merely nominal party, and the other defendant could remove the cause to a federal court on ahowing diversity of citizenship.. Nelson v. Hennessey, 33 Fed. Rep. 113, followed.
. At Law. Action brought in the court of common pleas for Berke· ley COUJilty, S. C., by Thomas B. Rivers against William L. and one Gaillard, for personal injuries. Defendant Bradley removp(l the ell,use to the United States circuit court. On motion to Denieq. Jervey & Prolean, for the motion. Lord & Burke, opposed. SIMONTON, District Judge. This is a motion to remand. The action began in the court of common pleas for Berkeley county in the state of South Carolina. It was removed into this court upon the petition of the defendant Bradley. There are in fact two petitions for removal, but they will be consolidated. Two grounds are set up: First. That plaintiff is a citizen of South Carolina, and that Bradley, the only real party in int.erest, is a citizen of the state of Massachusetts; that against Gaillard, the other defendant, the complaint sets out no cause of action, and that he is joined as a defendant simply to defeat the jurisdiction of this court. Second. Even if there be a cause of action against Gaillard, the f'omplaint shows a separable controversy between Hrailley and the plaintiff, and so i:; removable. On his motion to remand, plaintiff 1J'averses all the allegations of the petitions. 1. It is admitted that Hradley is a citizen of )Iassachusetts, and resides with his family in that state for the greater part of the yeal; that he owns valuable real estate in the I:lt:ate of South Carolina. upon which is a. comfortable dwelling; and that once a year, or, at furthest, two years, he comes and spends about a month in it. This fact does not make him in any sense a resident of South Carolina, .or deprive him of his right as a citizen of Massachusetts of the privilege of removing a suit into this court. 2.. In determining the first ground for remoyal of the case into thifJ court we must be governed by an inspection of the complaint, assum· v.5oF.no.3-20