
    Case No. 2,451.
    The CARROLL.
    [1 Ben. 286.]
    
    District Court, S. D. New York.
    July, 1867.
    Collision in Chesapeake Bay — Steamek and Sciiooneu Meeting — Duty of Steamer — Evidence.
    1. Where a steamer and schooner meeting ®ach otherin Chesapeake bay, the schooner bound down the bay with a free wind, but, as she claimed, holding her course, and her course being to westward of that of the steamer, and the steamer, as the vessels approached, put her wheel hard aport and stopped and backed, but a collision occurred: Belli, that it is the duty of steamers to give way to sailing vessels with a free wind, as well as those close hauled.
    2. The vessels having seen each other several miles apart, the collision could only have occurred by gross fault on the part of one or both vessels.
    3. The claim of the steamer that she stopped and backed when the schooner was nearly a mile off, bordered on absurdity.
    4. Her claim that the schooner when nearly a mile to the westward of the steamer, and nearly abreast of her, suddenly starboarded and went to the eastward to cross the steamer’s bows, was also unreasonable. The court was therefore compelled to discard the steamer's theory and accept that of the schooner, which was simple and consistent with one exception.
    [Cited in The Excelsior, 12 Fed. 204.]
    5. If the schooner was to the westward, and changed her course, as alleged by the steamer, then the order to stop and back the steamer was an error, and that on the other hand, if the schooner was nearly ahead, then the steamer should have starboarded instead of putting her helm hard aport.
    6. Very little reliance could be placed upon the testimony of a witness who had contradicted himself on cross-examination, whether the discrepancies arose from forgetfulness, dis-ingenuousness or dulness..
    In admiralty. This was a suit by Wesley Egbert, master and part owner of the schooner Elijah Shedden, to recover the damages sustained by her in a collision with the steamer Carroll belonging to the Baltimore & Ohio Railroad Co., which occurred on the evening 'of the 21st of December, 1S65. At about half-past seven o’clock that evening, the schooner was bound down Chesapeake bay, before a free wind with her sails wing and wing, at a speed of four or five miles an hour. When off, or a little above the Rappahanoc, she discovered a light which proved to be that of the steamer Carroll, bound up the bay. The vessels were then several miles apart and sailing on nearly opposite and parallel courses. They continued to approach each other until a collision took place, the steamer striking the schooner on her starboard side about twelve feet forward of her taffrail, and the latter sunk in five or six minutes. The weather was clear with a moderately fresh breeze. The steamer also discovered the schooner several miles off.
    Three witnesses were examined by the li-belants, and they substantially agreed in saying that they first discovered the bright light of the steamer two or two and a half points on their starboard bow, and as it drew nearer they discovered her green light; that the schooner continued her course without change, while the steamer approached, and, when two or three hundred yards from the schooner, suddenly ported her wheel, showing her red light, and struck the schooner as already stated; that the only movement attempted on the schooner was made by her captain after he saw the steamer had changed her course and was coming into the schooner, when he seized the wheel and attempted to throw it astarboard, but that it was too late; that the light of the steamer when first seen was four or five miles off, and that from that time to the collision was twelve or fifteen minutes. These witnesses insisted that from the time they first discovered the Carroll’s light, down to the time she changed her course, she was to starboard of the course of the schooner.
    On the part of the steamer there were examined, Lennan, her master, Fuller, the second mate, who was on the bridge, Thompson, a seaman, who was with him, and Peters, another seaman. Their claim was, that the schooner's light was seen a little on the steamer’s port bow, whereupon the steamer’s helm was put aport a little to show her red light; that the vessels then kept on till the .schooner was from half a mile to a mile distant when it was discovered that the schooner had changed her course by starboarding her wheel, whereupon the captain of the steamer gave the order at once to put the wheel hard aport, and to stop and Pack, but tbe collision was then inevitable. Tbe reason given by tbe captain of tbe steamer, for porting and backing at tbis time was to stop ber way. and throw ber bow to port, so as to let tbe schooner cross his bow if she could; that tbe action of ber propeller, backing on a port helm has tbe effect to throw ber bow to port, while backing on a starboard helm brings ber bow to starboard.
    Beebe. Dean & Donohue, for libellants.
    John H. Platt, for complainants.
   SHIPMAN, District Judge.

After setting forth tbe testimony of tbe witnesses at some length, and saying that as tbe vessels saw each other when several miles apart, no collision could have occurred without great fault on one or both sides, proceeded as follows:

On one point tbe testimony of tbe witness Thompson, is confused and inconsistent. He repeats tbe statement that tbe steamer was stopped and backed as soon as tbe order to bard aport was given, which was when tbe vessels were a mile apart as near as be can judge. On tbe cross-examination he distinctly states that tbe steamer was not stopped and backed until a considerable portion of tbis mile bad been run over, and that, they were very' close when tbis order was given. Very little reliance can be placed upon testimony of this character, whether such glaring discrepancies arise from forgetfulness, disingenuousness or dullness.

Tbe impression derived from reading tbe first part of Peters’ testimony is that tbe first order to port and then steady, was given when tbe schooner's green light was discovered, when, as be thinks, she was three-quarters of a mile or a mile from tbe steamer, and that the latter after falling off a point ran some little time before tbe order to bard a-port was given. But in tbe subsequent part of bis statement be proceeds upon tbe idea that tbe first order to port was given when tbe schooner's light was first discovered, about four miles off. He says, however, that tbe order to stop and back was given immediately on tbe order to bard a-port. Captain Lennan, and Fuller, tbe second mate, confirm him on tbis point, and tbe former agrees that at that time tbe vessels were half or three-quarters of a mile apart; that is, on a diagonal line drawn from one to the other.

None of tbe witnesses for tbe claimants charge tbe schooner with changing ber course from the time she was discovered till she bad reached this point about three-quarters of a mile off from tbe steamer, when she showed ber green light, and tbe steamer put ber wheel bard a-port, and rang to stop and back.

Assuming, then, that tbe first change charged on tbe schooner was made as stated by tbe claimants’ witnesses, let us see what must have been tbe relative positions of tbe vessels. They all agree in placing the schooner well to tbe westward or port of tbe track of tbe steamer when tbe former was discovered. They agree that no change took place till she bad approached within about a mile. As they were both sailing on nearly parallel courses then, and tbe steamer immediately ported a point, and held that course, diverging from tbe track of tbe schooner for three or four minutes, it follows that tbe schooner, when she changed her course, must have been over a mile, or at least a full mile, to the westward of tbe steamer's course; in other words, she must have been off to tbe westward at least five points on the steamer's port bow, and drawing down abeam of ber. Now if tbe schooner’s helm bad been put bard a-starboard at this point, giving ber a course at right angles to that of the steamer, and tbe latter bad kept on, it is very doubtful if a collision could have taken place. Tbe Carroll was making greater speed than tbe schooner, and would in all probability have readied and passed tbe point of intersection before tbe schooner reached it. Tbe distance the vessels bad to travel was about equal. But it is not necessary to apply tbis test, for it is clear on tbe evidence in behalf of tbe Carroll, that, whatever change she then made, she did not bard a-starboard, thus approaching the steamer's track at right angles. This is plain from the fact insisted on that tbe steamer, as soon as tbe schooner changed, reversed ber engine, and soon lost headway. Yet tbe schooner came down and struck tbe steamer’s bows. It follows irresistibly that tbe schooner, from tbe point where her alleged change of direction took place, must have sailed on a diagonal line to tbe steamer's track; and had tbe latter kept her course, even without any change, she would have clearly passed tbe point of intersection befoi-e the schooner got there. Such a change of the schooner involved no risk of collision. Had tbe steamer kept on, the schooner would have passed under ber stern with safety. On tbe Carroll's own showing, all she did to avert tbe collision was, when she saw tbe schooner coming toward ber. to stop in ber track and let tbe latter run down to her, and tbis she did when tbe schooner was three-quarters of a mile or a mile off! Viewing tbe evidence for tbe Carroll in any light in which I have been able to place it. I fail to see that it furnishes a satisfactory explanation of tbe collision, or one-which either disproves that given by tbe schooner or vindicates tbe steamer. Tbe theory of tbe latter is an impossible one, and tbe assertion that she stopped and backed when the schooner was nearly a mile off borders on absurdity. Equally unreasonable is tbe claim that tiie schooner, when off nearly a mile to tbe westward of tbe track of tbe steamer, and nearly down to her, suddenly starboard-ed and went to tbe eastward to cross her bows. Tbe court is therefore compelled to discard tlie theory offered by the Carroll, and accept that of the schooner, which is simple and consistent, except that part of it which places the course of the steamer considerably to the westward of the track of the schooner.

[NOTE. For hearing on exceptions by the respondents to the commissioner's report, see Egbert v. Baltimore & O. R. Co., Case No. 4,305.]

It is useless to speculate on the subject, but it looks very much, in view of the evidence as a whole, as if these vessels approached each other nearly head and head for several miles, without any apprehension of danger, when the steamer, on discovering the schooner’s green light, suddenly put her wheel hard a-port, under some mistake as to the relative positions of the vessels. This view of the courses of the vessels and their relative positions is strengthened by the statement of Thompson, who says that when he first discovered the schooner's red light, she bore nearly north, as he thinks; and by Peters, who states that when he saw the schooner’s green light he thinks he saw her red light also. These two statements are consistent with the claim that the schooner made no change in her course. Whether the steamer was misled by some one of the numerous lights, which one of her witnesses says were ahead before she came up near the schooner, or whether the order to hard to port was inadvertently given on suddenly discovering that the schooner was near, it is impossible to say; but it is clear that if the schooner was 1o the westward, in the position assigned her by the steamer, when the former made her alleged change of course, then the order to hard a-port was correct; but the order to stop and back was an error, for had she kept on hard a-port, she would have cleared the schooner with perfect ease. If, on the other hand, the schooner’s green light was nearly ahead, or a little on the Carroll’s port bow, then the latter should have starboarded, for, according to the Carroll's own evidence, the schooner was nearly a mile distant, running on a starboard helm. The vessels would have then passed each to the left of the other.

But. as already intimated, the court is compelled to accept the theory of the libellant’s witnesses, especially as to the course and management of the schooner; and as she did not, according to their statement, change her course, the steamer must be held in fault. It was her duty to take early measures and clear the schooner. It is now settled by the courts of this country that it is the duty of steamers to give way to sailing vessels with a free wind, as well as those close hauled.

Let a decree be entered for the libellant, with an order of reference to a commissioner to compute the damages.  