
    Case No. 238.
    ALLEN et al. v. MACKAY et al.
    [1 Spr. 219; 16 Law Rep. 686.]
    District Court, D. Massachusetts.
    Feb., 1854.
    Collision — Damages — Act 1851, c. 43, § 3— Freight Pending.
    L It is the established rule in this court, that in case of collision, if both parties are in fault, the loss must be divided.
    [Cited in The F. W. Gifford, Case No. 5,166.]
    2. Where sailing vessels are approaching each other, one close-hauled, the other going free, it is the duty of the latter to clear the former. To this general rule, there may be exceptions.
    [Cited in The F. W. Gifford, Case No. 5,166.]
    [See the Argus, Case No. 521.]
    3. A vessel lost by a collision, is to be paid for at her value when lost. By the statute of 1851, c. 43, § 8. [9 Stat. 635; Rev. St. 4283.] the owners of the vessel in fault are liable to the extent of the “freight then pending,” as well as of the value of their vessel; and the term, “freight,” includes the earnings of the vessel, in transporting the goods of her owners.
    [Cited in The Glaueus, Case No. 5.47S; Tire Ontario, Id. 10,543; The Bristol, 29 Fed. Rep. S'73.]
    [4. Cited in The Aleppo, Case No. 15S, to the proposition that, in computing damages for marine torts, interest at six per cent, may be allowed on the cost of cargo, and all expenses and insurance actually paid.]
    [5. Cited in The Mary Doane. Case No. 9,205, to the point that the lookout must be a person competent to give the requisite orders to the helmsman, in case of meeting a ship.]
    [In admiralty. Libel in rem by Walter Allen and others, owners of the barque Hin-doo, against R. C. Mackey and others, respondents, and owners of the ship John Quincy Adams. Decree for libellants.]
    This was a cause of collision. The libel-lants were the owners of the barque Hindoo, of Newcastle-on-Tyne, which sailed from Liverpool, in January, 1851, on a voyage to Aden, in the Red Sea, with a cargo of coal. On the 24th of March, 1851, at about one o’clock at night, the Hindoo being then in lat. 5° 22' S., and Ion. 25° 17' W., the wind being the south-east trade, and blowing about S. S. E., the Hindoo being close-hauled on the larboard tack, with all plain sail set, and going about five knots, the watch on her deck saw a large ship bearing down towards them, with all sails set, including studding-sails alow and aloft, and going dead before ’the wind, at about nine or ten knots. The ship proved to be the John Quincy Adams, of Boston, owned by the respondents. The captain of the Hindoo was called, came on deck, and corrected his reckoning; supposing, as he testified, that the ship intended to speak him. Finding, however, that she was coming too close, he hailed her to port her helm, as did also the mate and all the watch. The helm of the Adams, however, was put first to starboard and then to port; but at what precise time these orders were given, and whether her course was changed essentially, or not, from the time she was first seen, was disputed. The master of the Hindoo testified, that he saw the Adams obey her helm, when it was put to starboard, and that he then perceived that a collision was unavoidable, and gave orders to put up the helm of his own vessel, and square her after-yards, in order to diminish the force of the shock. This order was given and obeyed, but the Hindoo had not time to get round, when the Adams struck her, just aft the mainmast, and cut her down to the water’s edge, so that she sunk in fifteen minutes, or less, the officers and crew saving themselves by the bowsprit of the Adams. Much conflicting evidence was given, as to the state of the- atmosphere on the night of the collision, whether clear or hazy; as to whether the vessels respectively pursued the proper course, and as to the state and condition of the Hindoo.
    ■William Sohier and John Lowell, for libel-lants.
    S. Bartlett and E. D. Sohier, for respondents.
    
      
       Reported by F. E. Parker, Esq., assisted by Charles Francis Adams, Jr., Esq., and here reprinted by permission.]
    
   SPRAGUE, District Judge.

Some of the leading facts in this case are not disputed; the total loss of the Hindoo, by collision with the John Quincy Adams; the time and place where this disaster happened; the tacks on which the vessels were sailing. There is no doubt that the sea was smooth, and the night fair, with a moon, but whether there was any, and if so, how much haze or fog, is in controversy. Upon this point, the evidence satifies me that there was not so much haze, as to make this a case of inevitable accident. It is certain, that the Adams was seen a mile and a half, some witnesses say two miles, off. And I am satisfied that the Hin-doo might have been seen from the Adams, at least three-quarters of a mile. This is the testimony of Captain Nickels, the master of the Adams. The collision, then, ought to have been avoided. One or both of the parties must be in fault. If both, the loss must be divided; tbis is tbe settled rale in admiralty. Tbe Rival, Case No. 11,807. Some doubt bas been expressed on tbis point, at tbe bar, but it is tbe established doctrine of tbis court

1st Was tbe Adams in fault? It was ber duty to clear tbe Hindoo, because she was going free, and tbe barque was close-hauled. Tbe vessels were approaching each other, nearly at right angles, and it was tbe duty of tbe Adams to go under tbe stern of tbe Hindoo. It bas been said at tbe bar, that there is no general rule, and experts have so testified here, but tbis is a mistake. There are general rules, and it is very important that they should be known, in order that when vessels meet each other suddenly, each may at once adopt tbe proper measures. These rules are, of course, liable to exceptions and modifications. Thus, if tbe vessel which is bound to give way, or to take a particular direction, cannot do so with safety, by reason of tbe proximity of tbe shore, or of other obstructions, tbe rule does not apply; but, subject to such variations as peculiar circumstances of tbis sort may impose, there are general rules, which should be known and adhered to. See 2 Pars. Mar. Law, 202, note 3. In tbis case, tbe ship should have gone under tbe stern of tbe barque, because, by doing so, tbe vessels would be constantly increasing their distance from each other, and because tbis course would not require, on ber part, any calculation of tbe rate of speed at which tbe other vessel was going. Tbe Adams bad ample time to do tbis, for she might have seen tbe Hindoo at tbe distance of three-quarters of a mile, as I have already observed; and if she bad attempted to do so, when within half a mile, or a quarter of a mile, with a smooth sea, and with tbe headway which she bad, there is no doubt that she would have cleared tbe barque. It is so testified by the experts called by tbe respondents. She did not do so, and tbe inference is that she must have been in fault.

A good deal has been said about tbe lookout kept on board tbe Adams. Tbe build of tbe ship, and the position of ber sails, were such, that from tbe quarter-deck, those on board could not see much, if at all, forward of the beam, nor could tbe men of .the watch, excepting from tbe topgallant-fore-castle. Some doubt bas been raised, as to tbe number of men on tbe topgallant-fore-castle. I am satisfied that there was but one person there; be was seventeen years old, and rated as a boy. I do not think that tbis was a sufficient lookout. Tbe respondents ought to have bad a man there; one who, if any emergency arose, would be able to give tbe proper order. In tbis very case, tbe boy cried “starboard,” which was wrong. The moment tbe captain came on deck, be at once gave tbe order to “port” tbe helm, although from the quarter-deck be could not see tbe Hindoo; but be says that be knew that any vessel, which they should meet in that place, would be sailing in tbe direction which tbe Hindoo actually was taking, in which case tbe order should have been to port tbe helm. And be was right. Tbe Adams, then, was to blame for not seeing tbe Hindoo sooner, and for taking tbe wrong course after she was seen.

2d. Tbe next question is, was the Hindoo to blame? It is said that she intended to speak the Adams, and that she ought, therefore, to have shown a light, and none was shown. But if she did nothing to carry out tbis intention, did not alter ber course, nor deaden, ber way, she is not to be accounted blameworthy for a mere intention. Tbe Hindoo was justified in presuming that the Adams would keep out of tbe way; she bad a right to keep ber course. It is contended that she deadened ber way, first, by backing ber topsail, secondly, by taking in ber gaff-topsail. It is doubtful whether she did take in ber gaff-topsail; and tbe only two witnesses who speak of it, do not say when it was done. Tbe evidence, as to tbe main-topsail, is quite clear, that it was not backed till just before tbe collision, when there was great danger, and then she bad a right to do it, in order to try to evade or diminish tbe imminent shock. If tbe gaff-topsail was taken in, or let go, it was probably done at the same moment. I dor not think, therefore, that tbe Hindoo was in fault, and tbe decree must be for tbe libellants. Tbe ease was sent to an assessor, and upon the report made by him, several questions were argued.

SPRAGUE, District Judge.

Tbe Hindoo is to be paid for, at ber value when lost. Tbe master reported ber value, at tbe port of departure, to be £3500, and be bas, upon a rehearing, decided that be can ascertain no diminution of value, from tbe time of her leaving Liverpool, up to tbe day of ber loss. In bis estimate, he bas deducted £500 from tbe value which tbe witnesses affixed to tbe vessel, because be was satisfied from the testimony, as to the leak, that she could not have been so well repaired after her former voyage, as those witnesses have supposed.

Tbe respondents contend, that tbe leak was a great and increasing one, and that tbe vessel would have been obliged to put into Rio for repairs; and experts were called to show, that tbe repairs at Rio would have been very expensive. Tbe evidence is very contradictory. I do not think it proves that tbe leak was an increasing one; tbe weight of testimony is tbe other way. Then, as to tbe testimony of the experts, they were asked what they should judge, from the whole evidence, would be tbe expense of repairs at Rio. This was not tbe proper mode of examining witnesses. Tbe evidence was contradictory and voluminous; and instead of thus asking them, in tbe first place, to judge of the result of the evidence, and then their opinion, as experts, upon that result, a suppositious case should have been put to them, for their- opinion, and the court would have judged whether that case existed. It is no part of the duty or power of experts, to decide upon coniiicting evidence. The Clement, [Case No. 2,879; U. S. v. McGlue, Id. 15,679.] And I cannot tell what evidence they adopted; certainly not that of the captain and mate, who testified that there was no leak. There does not appear to be any evidence in the case, from which any one can say what the cause of the leak was; and therefore I cannot adopt these opinions of the experts, nor could they, with any certainty, estimate the amount of repairs required, nor the sum which they would cost.

NOTE, Tin 19 Law Rep. 692.] A separate libel was filed for the cargo, and interest was allowed on its value from the date of the loss.

The libellants, on the other hand, think that too much has been allowed for the leak. I am convinced, by the whole evidence taken together, that the vessel leaked a good deal, and I cannot disturb the master’s report, as to the allowance to be made for it. Assuming the master to be correct in his estimate of the value, at the port of departure, I think it is for the respondents to show a deterioration, or depreciation, after the vessel sailed. This they have not done. I have already considered the evidence concerning the leak, and it does not show that the leak increased, or that anything occurred to injure the vessel, from the beginning of the voyage. I think, therefore, the value at the port of departure, must be taken to be the value at the place of the disaster.

Another question, of considerable interest, has been raised and discussed; whether, under the statute of the United States, (1851, c. 43, § 3; 9 Stat. 635; [Rev. St. § 4283,]) limiting the liability of ship owners to the value of the vessel and freight then pending, the freight of the Adams is to be brought in; the same persons owning the vessel and cargo. This is a new question, so far as I know. No cases have been cited at the bar, and I suppose there are none. Under the English statute, the question cannot arise, as it is provided for in terms. It is argued, that no freight was to be paid in this case, and therefore, that none was pending. I think, however, that “freight” is often used in a sense broad enough to cover this case. The old maxim was, -“freight is the mother of wages.” If you take this literally, and extend to it the rule contended for here, it would exclude the sailors from wages, where the owner carries his own goods. I think the expression “freight pending,” is perhaps a little broader than that of the English statute, “freight due or to grow due;” and it may fairly cover the increased value of goods conferred on them by their carriage, which is just as real a gain to the owner of the vessel, and just as real a payment by the owner of the goods, in the one case as in the other. I take into consideration, also, that this statute limits a responsibility which existed at common law, and therefore must not be extended beyond the fair import of its language. I think that the earnings of the vessel, in transporting the goods of the owner, may well be deemed “freight,” within the meaning of this statute, and the amount will be what would have been a fair compensation for transporting the same goods, had they belonged to other persons.

Decree for libellant, for £3500, the value of the Hindoo, and for £900 freight Total, £4400, or $21,315.36, with interest from the date when the vessel would have arrived at her port of destination, in the ordinary •course of such a voyage, $3406.84.  