
    ATLANTIC COAST CO. v. UNITED STATES.
    (Circuit Court of Appeals, Third Circuit.
    June 19, 1926.)
    No. 3429.
    Collision
    Evidence held to show that ‘schooner had time to use flare light after hearing overtaking steamship’s signals in a fog, and in failing to-do so, or to show a stern light, violated International Rules, art. 10, and was at fault in col.lision.
    Appeal from the District Court of the United States for the District of New Jersey; William N. Runyon, Judge.
    Libel by the Atlantic Coast Company against the United States, as owner of the steamship. George Washington. From a decree (3 F. [2d] 808] dismissing the libel, libelant appeals.
    Affirmed.
    Blodgett, Jones,'. Burnham &' Bingham and Stephen R. Jones,, all of Boston, Mass., and Remsen Cowenhoven, of New Brunswick, N. J., for appellant.
    Walter G. Winne, U. S. Atty., of Hackensack, N. J., and Charles E. Wythe, Sp. Asst. Ú. S. Atty., of New York City.
    Before BUFFINGTON and DAVIS, Circuit Judge's, and RELLSTAB, District Judge.
   BUFFINGTON, Circuit Judge.

This is an appeal by the schooner Augusta G. Hilton from a decree dismissing its libel, filed against' the steamship George Washington, for damages resulting from collision. After due consideration, we are of opinion the decree should be affirmed, and, without discussing all the grounds on which the trial court based its decree, we restrict ourselves to a single one which, in and of itself, we feel is decisive of the ease, namely, that the fault of the Hilton was the sole cause of the collision. The facts, as we view them, are these:

The collision took place in a fog, during which the Washington, bound from Boston to New York, overtook and struck the Hilton, bound from Boston to Hampton Roads. The Washington’s crew were at their posts and' her lights properly displayed. She had slowed down to 12 knots, was sounding her fog warnings properly, and had no notice or knowledge of the presence of the Hilton until the collision was inevitable. The court below was justified in finding, as it did, there was no fault on the Washington’s part.

The proofs show the fog signals of the Washington Tyere heard by the Hilton. Peterson, on duty at the Hilton’s wheel, as shown by Ms testimony below, heard the Washington’s fog signals. That the fog signals heard by Peterson also came to the notice of the Hilton’s captain and mate also appears from Peterson’s testimony:

“Q. How long had the master been on the deck at the time of the collision? A. He was on the deck from 12 o’clock.

“Q. He had been out there all the time during your watch? A. Yes, sir; but he just went down in the cabin when the steamer was blowing the first time.

“Q. When you heard it the first time, he had just gone down? A. Yes, sir; he came up and asked the mate if that was a steamer blowing.

“Q. What did the mate tell him? A. Well, he said, ‘There is a steamer on the port quarter.’

“Q. How many timos did you hear the whistle after that before you ran from the wheel? A. Well, I don’t know; three or four times.

“Q. Three or four times. Well, now, did each one of those sounds como from the same direction as the first one, apparently? A. Yes.

“Q. And when you saw the steamer, when she was right on top of you, as you said, was that the same direction as the direction in which you had hoard these signals before ? A. Yes, sir.

“Q. So that she appeared to keep coming right along towards your stern? A. Yes.

“Q. As you heard each one of these three or four signals ? A. Yes, sir.”

It likewise appears that the Washington’s fog signals were heard by Peterson four or five minutes before the collision.

“Q. What is your estimate of the time between the first one of those signals that you heard from the steamer and file time when you saw the steamer right on top of you — can you estimate that time? A. No, sir.

“Q. Well, you said the horn on your schooner was blowing regularly about how often? A. Half a minute.

“Q. Do you think it was blowing as often as that? A. Yes.

“Q. Well, now, how many times do you think you heard your schooner’s horn blow between the time when you first heard the steamer’s whistle and the time you saw the steamer — can’t you judge the time in that way, or estimate it in that way? A. I think it was eight or ten times, on tho schooner.

“Q. And three or four times on the steamer? A. On the steamer.

“Q. That would make it three or four or five minutes, your best estimate; is that your best estimate?' A. Yes, sir.”

It is shown that the fog was a heavy, continuous one, and that the Hilton had been running through it for some considerable time. Maker, the Hilton’s second mate, admits he heard two fog signals of the Washington — one about three minutos before the collision; the other when the Washington was about her own length away. The captain was with him and had a flare light, but did not light it.

“Q. And when you heard the first whistle, where were you and the captain? A. I was walking back and forth on the quarter deck, across the ship, from one quarter to the other, in front of the wheel.

“Q. And where was the captain ? A. The captain was just coming out of the cabin, and asked me where the whistle was, and I told him in what direction it came from.

“Q. And then you and the captain stood on the port quarter? A. Yes, sir.

“Q. And you stood there, looking and listening, from that time until the time you heard the second blast? A. Yes, sir.”

Indeed, there is no contention, made that the Hilton had any stern lights on her, or that-she showed a flare light to the Washington, as will be noted in Maker’s testimony.

“Q. The captain came up on deck just as the George Washington’s whistle was heard by you? A. Yes, sir.

“Q. And you both remained on deck until you saw her coming out of the fog? A. Yes, sir.

“Q. And you were both standing on the port quarter ? A. Port quarter.

“Q. Looking and listening? A. Yes, sir.

“Q. You did not carry any fixed stem light, did you? A. No, sir.

“Q. And you had not shown any light of any kind astern, even though you knew the sound of this steamer came from your stern; that is correct, is it not? A. Yes, sir.”

And that there was ample time to show a flare after the Washington’s signal was heard is testified to by Maker, who justified not doing so because they thought the distance was such that it was not necessary.

“Q. I say, there was plenty of time there, was there not? A. Between the first whistle and the second one? '

“Q. Yes. A. Yes; there was plenty of time,; yes. '

“Q. Why did you not show a light then —your flare? A. Because it wasn’t neees.sary, I didn’t think. The steamer seemed to be in the distance.

“Q; Well, it was very thick fog; you knew you could only see a ship’s length, did you not? A. Yes, sir; exactly.

“Q. In a thick fog like that, where you could only see a ship’s length, did you not feel that a light would have been of assistance to yourselves and other ships? A. Yes, sir; it would be.

“Q. And yet you did not show any? A. No, sir; we had them ready” — although he admitted the showing of a light would have been helpful. That the Hilton was not alert to the danger to which she was exposing herself and other vessels in her passage through this heavy, continuous fog is shown by the , , fact that this* mate, who was on watch, not only had never used a Costen light, but did not know how to use them, although the Hilton was provided with them, nor had the captain given him any instructions how to use it. Kelley, on the deck watch of the Hilton, ■, l. j a 4? says he heard two whistles from the Washington and located the first one as directly astern.

“Q. The first time you heard her blow, where did the sound seem to come from? A. She was straight astern of us then sir” bne was straight astern or us then, sir.

It is true, Kelley testified that, after he heard this first whistle of the Washington, the latter was upon them almost at once,, when she blew the seeond whistle- hut Glaeswhen she blew the second whistle, but Glaessel, the Hilton’s captain, says that the first whistle sounded two or three miles away, and that he had plenty of time thereafter to flare , n , • tne Gosten light.

“Q. And you heard a whistle from a steamer as you were coming up the gangway? A. Yes, sir.

m at i i “Q. How did it sound ? ' A. It sounded quite far o££, a good distance.

“Q. What do you mean by ‘a good disfnncp ’ fWain? A Tt sounded to me as tanee, Gaptam. A. it sounded to me as though it were about at least about two or three miles off — about two miles. * * *

“Q. You had time enough from when you first learned of the presence of the steamer astern of you? A. No, sir; not from the time I learned of the presence of the steamer. I had time enough from the time I heard the first whistle, but not from the time I learned of the presence of the steamer. I didn’t have no time to light my lamp, or the Costen light.

“Q. But from the time you first heard the steamer’s whistle, you had time enough? A. I-had time; yes, sir.”

On the whole, we are satisfied the Washington’s signals were heard by those on the Hilton at such time and distance that a Cos-ten light shown by the latter would have averted the collision. Hailing to have or show a stern light, or to use a flare.light, we think the Hilton breached article 10 of the International Rules, and was properly held in fault.

The decree below is therefore affirmed, 
      
      
         “Q: Did you hear the signal of the steamer that afterwards hit you? A. After?
      “Q. Did you hear any whistle of the steamer before the steamer hit you? A. Yes — yes, sir.
      “Q. What did you hear? A. I heard one blow. I think it was three or four times I heard it.
      “Q. And what was- that — a steamer’s whistle? A. A steamer’s whistle.
      “Q. And where did that appear to be from you? A. On the port quarter.
      “Q. Did you see the steamer at any time? A. No, sir.
      “Q. Did you see her at any time before she hit you? A. Just before she hit us.
      “Q. And did you hear the steamer blow at about the time that you saw her? A. I heard him blow when he was right over us; the second time he was blowing, he was right over us.
      “Q. That is, the second blast that you heard of the steamer? A. The ■ second or third — I don’t know which it was.
      “Q. She was right over you? A. She was right over us; yes. ,
      
        “Q. And did you see the steamer— A. No, sir.
      ”Q, (continued) — at this place when she was right o\er you? A. 1 just looked back, and I saw him right over us.
      “Q. You looked back and saw the steamer? A. Yes, sir.
      “Q. And where were the captain and the mate then? A. They was on the poop deck.
      “Q. That is the same as the quarter deck, is it? A. Yes, sir.
      “Q. When you saw the steamer, where was she? A. She was close to us.
      “Q. How close? A. Well, I can’t say how close he was; he wasn’t so far away.
      “Q. Can you give us an estimate, with reference to the length of your vessel, how far the steamer was away then, when you saw her first? A. Well, I think she was a ship’s length.
      “Q. And where was she — how did she bear from your vessel? A. On the port quarter.”
     
      
       “A vessel which is bemS overtaken by another shall show from hei. stern to such last_ mentioned vessel a white light or a flare-up light.”
     