
    THE MARY AUGUSTA. LOW v. THE MARY AUGUSTA. HIGGINS et al. v. LOW et al.
    (District Court, D. Connecticut.
    April 17, 1893.)
    
      1. .OoiMSTOST — Sailing \ essels- • Urairr ov W ay.
    Tito schooner A. was sailing íroe befara the wind at night, on a course about J3. by S., while the schooner T, was Bailing closelxatxlcd upon her port lack on a course about W. % N. Each vessel kept her course until they were close together, when the A. put her helm up and kept olí. The T. did the same almost immediately. Then the A, put her helm hard down and struck the T. on her pert quarter. Held, that the A. was m fault, being bound to keep out of the way, and that the TVs changa oí course, if an. error, was an error in extremis.
    2. Saiub — CaEDUHU'i'Y <»' Witnesses.
    The principal defense of the A. was the absence of a red light on the T„ to establish which the evidence of fixe captain of the A. and one of Ms seamen that they did not see the light was offered, and the testimony of a seaman on the T, that, after the ecffisioxi occurred, the captain of the T. said to him and his fellow seamen, “Roys, we muon’t alow but what these lights wei-o burning all right.” This leslimony was contradicted by the captain, lookout, steward, axxd mate of the T., and the wheelsman of the A., and there were oircninstsinces to discredit the testimony of the T. seaman. The captain and seaman of the A. admitted that they did not look, after the collision, to see if lights wore burning on the T. Held,, that the evidence was insufficient to show a want of a rod light on the T.
    
      il. Saice.
    The assertion of the captain of the A. that the T., though sailing close-hauled, having the right of way. and bound to hold her conree, swung seven or eight points in twice her length axxd ran under the bows of the A,, was so manifestly improbable and impossible as to discredit Ms whole testimony.
    In Admiralty. Libel by Warren Low against the schooner Mary Augusta, her tackle, etc., and cross libel by Joseph M. Higgins and another against Warren Low.
    Decree for libelant, Warren Low.
    Walter O. Noyes and Prank B. Brandegee, for libelant.
    Samuel Park and Edward S. Dodge, for claimants and cross libel-ants.
   TOWNSEND, District Judge.

On June 24, 1892, at II. o’clock at night, near Race rock in Long Maud sound, the schooner Mary Augusta was sailing free before tbe wind on a course of about E. by S., and tbe schooner Artemas Tirrell was sailing closehauled upon her port tack on a course of about W. £ N. It was a good night for seeing lights. The wind was between S. S. W. and S. W. by S. Botb vessels were heavily loaded. Each vessel kept her course until they were close together, when the master of the Mary Augusta put her helm up, and kept off. The master of tbe Tirrell almost immediately did the same. Then the master of the Mary Augusta put her helm hard down, and struck the Tirrell on her port quarter near the stern. Both vessels were damaged; the Tirrell soon ñlled and sank; the Mary Augusta put into New London harbor.

Under the circumstances stated above, the Mary Augusta would clearly be alone liable. She had the wind free, and was bound to keep out of the way of the Tirrell. The master of the Tirrell kept Ms course, as he had a right to do, until just as the Augusta was about to strike Mm. Then he used his best judgment, and, by putting Ms wheel hard np, tried to ease the blow. The preponderance of evidence shows that the collision followed so quickly that the Tirrell’s course was not materially changed. The change, if any, did not contribute to tbe collision or increase the damage. Even if it was an error of judgment it was committed in extremis, and, in the absence of other qualifying conditions, was not a fault. Bentley v. Coyne, 4 Wall. 509; The Havilah, 33 Fed. Rep. 875; Id., 50 Fed. Rep. 333, 3 C. C. A. 519; The E. A. Packer, 49 Fed. Rep. 98.

Counsel for claimants and cross libelants did not. press this claim except a3 incidentally hearing upon tbe main defense, — the absence of proper lights on tbe Tirrell. It is strenuously maintained that on the night in question, although it was a good night for seeing lights, and the master of the Augusta was forward, looking for lights, and saw the Tirrell when a quarter of a mile off, no lights were visible on her. And, in support of the testimony of the witnesses on the Mary Augusta to this effect, the claimants introduced tbe deposition, taken after the close of the hearing in court, of one Weaver, one of the seamen on the Tirrell, who swore positively that immediately after the collision he went forward and examined the red light, and found it burning so dimly that he could just see a very small blaze with his face close to the glass by climbing up in the rigging; that thereafter the cook, under orders of the mate, took it down, cleaned it, and replaced it; that it had gone out on Ms watch two or three times before; that when they got into the wharf that night the captain said to the mate and him, “Boys, we mustn’t allow but wbat these lights were burning all right,” and that he replied he was not going to perjure himself for him or anybody else. He further testified that, when he went out with the rest to look after the schooner the following morning, the captain told him to take the light out of the rigging, and that he then looked at the light and saw it was not burning. If the story of this witness is to be believed, it not only discredits tbe testimony of the other witnesses on board of the Tirrell, but it destroys tbe effect of the testimony of the disinterested witnesses on the wrecker, who testiñed that when they went out to the Tirroli the following ■morning her red light, was still burning brightly. A careful examino Hon oí the testimony of the witness discloses, as bearing upon its eivdibhiLy, the following circumstances:

First His testimony ihafc Hie red light was not viable at the ame of the collision is contra,dieted by 'die captain, lookout, steward, ■<eixd maie of the Tirrell, and by Hausen, the wheelsman of the Augusta, Bis testimony as to the trimming of the tights after the collision. and that the captain told Mm. what to swear to about lights, is denied by the capuún. Ti attach lili.Lc Importance to the fact, .¡hal ibis testimony was not denied by other witnesses, as Weaver’s deposition was taker, under a stipulation that, oí: he was to con -■mullet certain statementa of Capt Low, only Capt. Low’s testimony «lumia bo introduced ia robnltaJL Jlfs Laatloumy that the red light va:- not be ruing the follow! eg morning is denied by the cap-lain and engineer of the wrecking steamer Hcott I have not considered the depositions of other witnesse» on this point subsequent io the trial, an, under the stipulation, I think libelants had m right to cixll any one except Capt. Low to rebut Weaver.

,Second. Certain sü?tenienti. of the witness are so improbable as 1» raise a serious qmmiixm as to ¡heir truth. On his cross exarolna«íoü Weaver swears that after be left the TimfO, and before any ■conversation with anyone on board the Augusta, he received a lev. tor from her captain, «giving him simply whether he was aboard Lie Tlrrelí at the tin»e of the collision, to which he replied that he ■wiw. Ho further swears that, having gone from New Loudon to various places, he went, io New York to ship again, and ¡here, in a shipping office tho name of which he did not know, hat into which be happened, to go the dev before giving bis deposition, to see if there were any sights, and without having intlinuted to am-one {hat lie was going there, lie met (lapt Bowden, ¡ho «'.plain of the Augusta,; that he did not talk over tils testimony with the captain, nor the captain with him, although he «une with the cap tain from New York to New London, but simply told Mm he would -«niffy if summoned; ¡lint he was paid a witness fee the amount of which he did not know, and that no one, unless they were mind mulers, could have told, the week before, that be -would testify as to the declarations of the captain of the Tirrell. On the redirect b.e was ohown a letter written by Mm to a ML Joy, one of the ou aera of the Augusta, in which the witness si a tod Ms inability to seo ihe light except with his Lice close to the glass, but mírle no ref vence to the other parta of bis testimony heretofore referred to. And yet, weeks before Ms deposition was taken, counsel for claimants bad stated that they desired to take the deposition of si witness who would testify to certain declarations made by the captain of the Tirrell.

If the testimony ox this witness bo discredited, there remains, as already stated, the testimony of the four witnesses on the Tim;ll that ¡he lights were burning well, and of Hausen, the wheelsman on the Mar? Augusta, who admits that, after the vessels a trade, he could see a red light on the port side of the Tirrell, which was burning brightly. The master of the wrecking tug who went out to the Tirrell the morning after the collision, apparently a competent and disinterested witness, testified that her red light then appeared to be burning brightly. His testimony is corroborated by that of the engineer of the tug. The captain of the Augusta saw no lights, but when he called to the captain of the Tirrell at the time of the collision, “Where are your lights?” and the captain of the Tirrell replied, “They are up,” he did not look to see whether they were burning or not. One sailor, who was below on the Augusta, swore that he saw no lights on the Tirrell after the collision, but admits that he did not look to see whether they were burning. It is significant that the mate and cook of the Augusta were not called as witnesses. The deck hand on the wrecking tug saw no light burning on the Tirrell the morning after the collision. In view of the number, character, and appearance of the witnesses who testified that the lights were burning, and of the character of their testimony, as compared with the testimony to the contrary, I feel obliged to disregard the testimony of Weaver. I am of the opinion that the burden of proof on the part of the Tirrell of compliance with the statute as to lights has been successfully maintained.

There is much force in the suggestion of counsel for libelants that the question of presence or absence of the red light is not material to the decision of this case. The captain of the Augusta testified that he saw the Tirrell a quarter of a mile off, and was then able to tell that she was a schooner sailing by the wind on her port tack, and that if the Tirrell had held her course there would have been no difficulty in his keeping out of her way, and there would have been no collision; that it was the Tirrell’s change of course that caused the collision, and that, therefore, whether she had lights burning or not, was not directly the cause of the collision. Furthermore, the captain and wheelsman of the Augusta locate the Tirrell as about a point on the Augusta’s starboard bow when she was at a distance of a quarter of a mile. In that event it would be the green light of 'the Tirrell which would be more plainly visible to those on board the Augusta. How, even Weaver testifies that there was never any trouble about the green light, and the evidence that it was burning brightly is only negatived by the testimony of the captain of the Augusta and the seaman who did not look for lights. It may, then, be fairly assumed that the green light was burning properly on the Tirrell. The captain of the Augusta, having seen the Tirrell at the distance of a quarter of a mile, and having ascertained her course, was bound to keep out of her way.

In view of the irreconcilable conflict of testimony, certain other matters bearing upon the question of probabilities demand consideration. The testimony of the captain of the Augusta as to the Tirrell’s alleged change of course is as follows:

“Question. And she began to change her course when you were about three ship’s lengths apart? Answer. Yes, sir. Q. As nearly as you can state it, the Artemas Tirrell swung seven points out of her course in the distance of a ship’s length and a half, did she? A. It tafees rather more than a strip’s length, and a half to do it. Q. If you were three lengths apart when you basan to change, this would bo so, 'would, it not? A. Yes; but when we oanie •together we were almost a length across hex* bows. Q. So that would make it about two ship’s lengths, then? A. Yes.”

And again:

“Q, And if she had held her course, you would have gone out of her way; is that it? A. Yes, sir. Q. And you stty that, seeing that, after yon had dianged your course and gone out oi‘ her way, site deliberately changed her course seven or eight points and ran under your bows? A. Yes, sir.”

The assertion that a vessel nailing clooehauled, having the right of way, and hound to hold her course, swung seven or eight points in twice her length., and ran under the bows of a vessel sailing Iree, seems to me so manifestly Improbable and impossible as to-throw discredit upon the whole testimony of this witness. There is a conflict of testimony as to the respective locations oí the two vessels just prior to the changes oí course. The witnesses for the Tirrell locate the Augusta about half a point or a point oí? the TirrelFs port or weather bow. The witnesses for the Augusta locate the Tirrell about a half a point to a point oil the Augusta's starboard or weather bow. 1 fc will be observed that the conflict is within a marrow compass, a matter of from one to two points. It seems to me probable, as is suggested by counsel tor claim ante, that the two vessels must have beau approaching each other on courses which involved the risk oí collision. For some reason not satisfactorily explained, the Augusta failed to keep out of the way of the Tirrell until the collision was inevitable.

I have not discussed the evidence upon the angle of collision, because none of the evidence introduced, by the libelants is admissible under the stipulation of counsel heretofore referred to, as it was understood by the court, and the single witness introduced by the claimant on this point was not an expert, and did not show sufficient acquaintance with such blows to maim his testimony of much value. Much oí the difficulty which 1 have found in the decision of this case arises from the misunderstanding of conn sel after the close of the hearing in court as to the character and extent of the evidence to be thereafter taken by deposition.

Let a decree be entered in favor of the libelant, Warren Low.,  