
    THURLOW et al. v. WRANGEL et al. CENTRAL AGUIRRE CO. v. SAME.
    (Circuit Court of Appeals, Second Circuit.
    June 25, 1915.)
    No. 253.
    Collision ©=»125—Suit fob Damages—Defense.
    Evidence considered, and held insufficient to sustain the allegations of the answer, in suits against a steamer for collision with a schooner at sea, that after the master and crew of the schooner had abandoned her, and come on board the steamer, the master caused her to be set on fire, and thus prevented the steamer from saving her, but rather to show that the schooner was so injured that she could not be saved, and that all parties acquiesced in, burning her as a derelict dangerous to navigation.
    [Ed. Note.—For other cases, see Collision, Cent. Dig. §§ 206-279; Doc. Dig. <§=»!25.] •
    Appeals from the District Court of the United States for the Southern District, of New York.
    Haight, S’audford & Smith, of New York City (C. B. Smith, of New York City, of counsel), for appellants.
    Blodgett, Jones, Burnham & Bingham, of Boston, Mass. (E. E. Blodgett, of Boston, Mass., of counsel), for appellees Thurlow and others.
    Harrington, Bigham & Englar and T. C. Jones, all of New York City (D. Roger Englar, of New York City, of counsel), for the appellee Central Aguirre Co.
    Before EACOMBE, WARD, and ROGERS, Circuit Judges.
    <gc^>For other ca>?es see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
   WARD, Circuit Judge.

November 19, 1912, at about 2 a. m., the Norwegian steamer Frain on a voyage from England to Mobile, while in charge of the second officer, came into collision with the American schooner James Pierce on a voyage from, Philadelphia to Porto Rico. The schooner was laden with a cargo of soft coal, was on her port tack, and was cut down below the water line on her port side forward. She was then about 500 miles from the nearest land. The steamer stood by until the following morning, when at 7:30 the master and crew of the schooner came aboard. The master said that she was making water so fast that the pumps cotild not control the leak, that the injuries below the water line were such that she could not be towed to port, and he had therefore determined to abandon her. The master of the steamer, doubting this to be the real condition, continued to stand by, and at 10:30 sent over his second officer and one of his men with the mate of the schooner and one of her men to see whether anything could be done. The second officer and first máte went aboard the schooner, the two seamen remaining in the boat, and while the officers were aboard, the schooner was set on fire forward and aft and abandoned. The owners of the schooner and of her cargo filed libels against the steamer to recover for a total loss, charging her with negligent navigation. The owners of the steamer answered, waiving any contest as to their liability, but asking that the. libels be dismissed on the ground that the schooner had been unnecessarily burned by her first mate pursuant to secret orders given him by her master, whereby they were deprived of any opportunity to save her. The niate of the schooner testified that before he left for the schooner the master of the steamer told him to put a hole in her or to do something because he could not afford to hang around waiting for her to sink. On the other hand, the master of the steamer testified that after the schooner was seen to be burning her master admitted that he had instructed his mate to set her afire. The commissioner in a very careful report came to the conclusion that the schooner could not have been saved, and that therefore it made no difference who set her afire. This relieved him from the necessity of determining whether her witnesses or the witnesses from the steamer were guilty of perjury. The witnesses from the schooner testified in his presence, and he said of them:

“Nothing in the appearance or demeanor of Capt. Vail and the members of his crew who testified before me indicated that they were not testifying with sincerity.”

The witnesses for the steamer on the other hand testified by deposition. Judge Hough confirmed the report, saying in addition that the second officer who was responsible for the collision should not have been sent to inspect the schooner because he was interested to minimize her injuries. This, however, we think is just why he would have been the last person in the world to set her on fire, or to allow the mate of the schooner to do so, unless either he had received such orders, or the matter had been left to his own discretion and he thought she could not be saved. Counsel for the steamer insist that we should determine which party is telling the truth about this matter, and we shall do so.. The weight to be given to the testimony depends largely upon the reasonable probabilities of the situation. The mate of the schooner testified :

“By the Commissioner: Q. When yon left the steamer with the steamer’s mate to board the schooner, did you intend to set fire to the schooner? A. Did I intend to? Q. Yes. A. Yes; I did. Q. Before you left the steamer? A. Yes; befóle I left the steamer. Q. Did you communicate that to anybody aboard the steamer? A. Did I? Q. Yes. A. No. Q. You didn’t talk with anybody at all? A. No, sir. Q. Did you talk with the mate about it on the way over to the schooner? A. I won’t be sure whether we did on the way over or not. Q. I understood you saturated some things with oil in the how and stern before you, applied the match? A. Yes. Q. What was it, kerosene oil ? A. Yes, sir. Q. Did you say anything to the mate of the steamer before you did that? A. We were together; I thought he understood just what we were doing. Q. Was anything said? A. There was not anything said. Q. Where did you get the oil? A. It was in ilie engine room, right on the work bench. Q. Did he go with you to the engine room? A. He was with me all 1 He time. Q. Did you tell him what you were going to the engine room for? A. He seemed to know what I was going for. Q. Wliat did you say to him? A. I said, T am after the oil can.’ Q. Did he make any comment on that? A. No. sir. Q. Was he with you when you brought the oil and the different things? A. Yes. Q. Did he make any comment why you were doing that? A. He only thought I didn’t have enough in the can; I had a little can of oil; ho looked at it and said, ‘That is not enough for anything.’ Q. That is when you got the can from the engine room? A. Yes. Q. When you got aboard ihe slciH.icr again could you see that the schooner was afire? A. Yes. Q. Smoke coming out? A. Yes. Q. Did you see the captain when you got on deck, the captain of the steamer? A. Yes. Q. Did he say anything? A. No, sir. Q. Did he look towards the schooner, or don’t you know? A. I don’t know whether he did or nor: he took charge of taking the boat up. Q. Do you know the captain saw the fire? A. He seen she was afire long before we got back. Q. You had no conversation with him when you got back on the steamer about her being afire? A. No. Q. Did you hear him make any remark of any kind about it? A. No, sir. * * * Q. You were asked certain questions by the commissioner about talking with the second mate, and you said he was with you when you got the oil can, etc.; did you ask him for the match which you said ho gave you, to set fire in the after cabin? A. He gave it to me; I said, T have no dry matches,’ and he said, T have some,’ and he gave me a match. Q. You said you intended to set her fire when you left the steamer; what had caused you to have that intention? A. I thought he wanted the houses destroyed, and I can’t say whether he told me to set her afire or not, but that is what 1 supposed he was wanting. Q. Who told you that? A. The captain of the steamer; that is what 1 supposed we were going for, to set her afire; he said the houses were just as bad as the vessel itself.”

The master of the schooner testified: •

“Q. Did he [the master of the steamer] say anything after you first got on board about going back to the vessel? A. Not until after; some time after. X}. Do you know what time it was? A. No, sir. Q. What led up to the boat going back? A. Nothing more than to satisfy himself; in the first place ha said the wreck should be destroyed. Q. When did he say that? A. After I had been on board a few minutes; I told him she would sink; he said her houses would blow off, and it would be almost as much of a menace as the hull, and he said it is the proper thing to do to destroy the wreck. XJ. Did you say anything to him as to whether he was at liberty to do anything he wanted with the wreck? A. Yes. Q. What did you say? A. I told him we were through. Q. What did he say? A. He didn’t say anything; I don’t know that he gave me any answer. Q. Did he ask you at any time for the right to put anybody on board and man her and tow her in? A. No, sir. Q. • Did you ever refuse him such a right? A. No, sir; he had nobody to put on board to tow her. Xj. What did the captain of the steamin’ say to you in reference to having some one go over? A. lie said he would like to have a look at her. * * * Q. When you saw the smoke first where were you standing? A. On the lower bridge of the steamer. Q. Who was there? Was the captain of the steamer there? A. Yes, sir. Then vve went— Q. Was anything said when the smoke was first seen rising from the schooner; if so, what was it? A. I said they have set her afire, or spoke of her being on fire; he didn’t say anything; ‘IHn-um,’ or something of that sort. XI. Did he say anything at all? A. Nothing particularly. Q. Did he say anything about why they would have set her on fire? A. No, sir. Q. Did you tell him anything to the effect, you had ordered your mate to set her afire? A. No, sir. Q. Did the captain at any time ever express any surprise or any objection, to her being set afire? A. No, sir; none whatever. Q. Did anybody else on the ship? A. No, sir. Q. After the mate came back was anything said as to why he set her on fire? A. I don’t think so. Q. Did you hear anything said by the captain or anybody? A. No, sir. Q. Did you hear anything said while you were on the ship before you got into Mobile by any officer or member of the crew of the steamer expressing surprise at the vessel being set on fire? A. No, sir ; not a word. * * * Q. You say you didn’t know your mate was going to set fire to the boat? A. No, sir. Q. Isn’t it true that when the smoke first came out of the schooner’s companionway, or came from wherever it was, the captain of the steamer turned around and said, ‘What does that mean?’ A. No, sir.' Q. Nothing of that kind happened? A. No, sir; didn’t show any surprise at all. Q. Although you didn’t know your mate was going to set fire to the boat and your mate testified nobody told him to, still not a word was said to show surprise when the smoke first appeared? A. The captain had been talking about setting fire to it; suggested it to me. Q. Not a word was said by the captain or by you to indicate any surprise when the smoke was first seen? A. Not surprise particularly; we mentioned it, of course; we said, ‘There goes the smoke,’ or ‘They have set her afire.’ Something of that sort.- Q. Although you hadn’t ordered it done it didn’t surprise you? A. Not much; I don’t say at that time the captain of the Frarn had told them to set it afire;' he had mentioned the matter of setting it afire; he said her deck-house would blow off if she sank. Q. That was when you first got aboard? A. No, sir; after we had been there a little time talking of this wreck lying there. Q. Five or 10 ihinutes? A. I can’t say as to that. Q. Not much more than that, was it? A. I don’t remember; it was after we were around there, after I had been on board some little time; I can’t tell that; he spoke of it two or three times, of destroying the thing, getting it out of the way.”

The master of the steamer testified:

“Q. Was there any discussion shortly after the captain came aboard about the destruction of the schooner? A. Destruction? Q. Burning or sinking her? A. When he came aboard he said, ‘If she is sinking, I should just as well fire her;’ that was just after he came on board before this last conversation about sinking, after I brought him in his room, I said, ‘When is she sinking so fast?’ and he said, ‘Two feet in that time.’ I said, ‘You had just as well destroyed her.’ He said, T am not going to do that; you can do it.’ I said, T am not.’ That was all the conversation there was; then we come to the other. Q. After the captain came aboard about 8:30, how long did you stand by the schooner before you sent a boat over to him? A. The -boat was sent off about half past 10. Q. Why did you send the boat off at 10:30? A. She seems to me not to sink, and I thought he was so anxious to let me get away, and it made me a little suspicious about it; I thought all must not be right, and I had better go over and see what I can do with the vessel. * * * Q. Did you see the second mate and the mate of the schooner when they got up on the schooner? A. I saw them come alongside. Q. About how long were they aboard the schooner? A. Something like 20 or 25 minutes, I should say—20 minutes. Q. And what was the next thing that called your attention particularly after they got aboard? A. I was on the bridge talking with my mate, and the captain of the schooner was also up there, and the mate turned around and said to me, ‘There is smoke coming out from her.’ Q. Your chief officer? A. My first mate. Q. He called your attention to how the smoke was coming out of the schooner? A. Yes, sir; I turned around and-saw it myself, so I said: ‘What is the meaning of this; what are you doing that for?’ Q. To the captain of the schooner? A. Yes, and also to the mate; my first mate was there also. Q. What did the captain of the schooner say? A. He said he told his mate to fire the ship-. Q. What reply did you make? A. I didn’t make any reply, I was so surprised. Q. Did you speak to your mate and wheelman when the captain of the schooner said he had ordered the fire? A. Yes, sir. Q. What did you say to the mate? A. ‘Did you hear that?’ I said; and also to the man at the wheel, but the man at the whefel said he couldn’t understand it. Q. Why did you ask your mate if he heard the captain of the schooner say that? A. I did it only to know that he had ordered it to be done; prdered ihe people to do that business. Q. TTp to the time that the captain of the schooner told you that he had ordered his mate to set fire to the ship, had you, the slightest idea that the mate of the schooner had gone over for that purpose, and with those orders? A. No, sir. Q. How rapidly did the fire spread on the schooner? A. First forward and aft, and the fire was soon in, full fame; before the boat, came alongside, she was in flame. Q. After you first saw the smoke, was there a time in which you could have done anything to 3rat out the fire? A. Not that I could see. Q. When the second mate of Hie Fram and the mate of the schooner came back onto the steamer, did they come up to the bridge? ‘A. Yes, sir. Q. What happened then? A. The second mate brought ihe two sounding rods from the schooner and showed me them, Q. With knots in the ropes? A. Yes, sir; and he said, ‘There is only about the same water what they reported before.’ We had no ruler, so that mate he hold it up like that. Q. The first, mate of the schooner? A. Yes, sir. Q. He held it up? A. Yes, sir. Q. How high did the knots come on him? A. Just about the same height he was, I should say. Q. Was one longer than the other? A. Yes, sir. Q. Did the longest go about his height? A. Yes, sir. Q. When you saw that, what did you say? A. I was really surprised about it all; I didn’t know what to say. As the ship was on fire, and I saw it hadn’t gained any water, I didn’t know what to say; I was surprised about the whole thing. Q. Did you say anything to the captain of the schooner about the amount of water your mate found? A. I said, ‘It is only the same amount.’ I didn’t say it to him; I said it to all of us that were up there; 1 said, ‘It seems to me the same water you reported.’ Q. Did the captain make any reply? A. He didn’t, answer. Q. What did he do? A. He left the bridge soon. Q. After that scene on the bridge did you discuss the destruction of the schooner further with the captain'—talk it over with him? A. The condition of the schooner? Q. The destruction of the schooner—the burning? A. Not after that. Q. You didn’t bring- up the subject any further? A No; not after that. Q. Was there any particular reason why you didn’t talk to him about it any moro? A. I thought that he tell me story before; I couldn’t hardly believe what he said; I lost faith in him—lost belief in him. * * Q. When the second mate came back ho told you how much water wa s in her? A. Yes, sir. Q. Did he tell you anything else? A. He told me a little about the damage on the side. Q. What did he tell you? A. He said it looked to him like a stripe on the side and a small hole just below the water—bent in—not all through. Q. Did he tell you anything more? A. He told me about the soundings. Q. Did he tell you anything- more about the condition of the vessel? A. My second mate? Q. Yes. A. Not as I remember. Q. You say he told you the planks were bent in below the water lines? A. Yes, sir; and also cut up. Q. And also cut up? A. Like a stripe. Q. Did he fell you there was a cut about 2 feet wide? A. He said it was just below the water line, about 2 feet wide, dent in it. Q. About 2 feet wide? A, Something like that; a foot and a half or 2 feet. Q. Did you think then lhaf iho vessel could be saved? A. Yes, 1 did. Q. Why didn’t you say so to tfv captain? A. After all that happened, I was surprised about it; I didn’t, believe what he said; 1 didn’t like to speak more about it; I was surprised about the whole thing. Q. Did you say to the captain or mate of the schooner that they ought not to set the vessel on fire; that you would have towed her in? A. I can't remember if 1 said anything of that sort; I can’t remember it. * * Q, Mr. Blodgett has asked you why you didn’t say anything to Capt. Tail about his having ordered his mate to set the schooner afire, and about your thinking that that was the wrong thing to do; you said that after your mate came back and reported to yon, you didn’t talk much more to Capt. Vail about it? A. No, sir. Q. Up to the time your second mate came back and reported, you have stated that you were becoming suspicious; but did you up to that time feel that Capt. Vail had been lying to you? A. That ho dicin’c tell me the truth. Q. Before the mate came back did you think that (’apt. Vail was probably telling yon the truth or not? A. When the mate came back? Q. Before he came back. A. If he was telling me the truth? Q. Before the mate came bade, did you think that you had the right to consider that Capt. Vail had been lying to you? A. Yes, sir. Q. Even before the mate came back? A. Yes, sir. Q. Before the mate came back, you felt that he had. not told the truth? A. Yes, sir. Q. And when the mate came back and told you the amount of water in her you felt satisfied? A. Then I was most sure of what I thought before. Q. You didn’t care then to discuss the matter with him further? A. No, sir. Q. After the boat was afire could you have done anything by talking about it? A. She was in flame all over there; I didn’t see any way to do anything. Q. You were asked by Mr. Blodgett whether it would not be right to sink a boat or to bum her; rather than to leave her a derelict for somebody to run into; you testified that you would have waited to see the. last of her; that you wouldn’t have fired her ? A. I would have. Q. Did you consider, under any circumstances, that the captain of the schooner had the right to set fire to the schooner without letting you know that he proposed to dó so? A. I don’t think.”

The first officer testified :

“Q. Who was the first one on the Pram to see the smoke? A. Me. Q. Where were you? A. On the bridge. Q. Who was with you? A. My captain and the captain of the schooner. Q. When you first saw the smoke what did you say? A. I told my captain there was smoke coming up from the schooner. Q. Did you hear your captain say anything to the schooner captain about the fire? A. Yes, sir., Q. What did he say, please? A. My captain asked the schooner captain what it all meant, the smoke, and the schooner captain said he had ordered his mate to put fire to the ship. Q. Did you stay on the bridge until your second mate came back from the schooner? Á. Yes, sir. Q. (through interpreter) - By the'time he got back, how was the fire on the schooner? A. Pore and aft. Q. (through interpreter) Was there any chance to put it out? A. No; big fire. Q. Could you see the blaze? A. Yes, sir.”

The second officer testified:

“Q. Did the mate of the schooner, at any time while you were examining the damage over the side, come up and look at the damage with you? A. He went to the place with me once, and I said, ‘It doesn’t look bad.’ Q. Did he say anything to you then about the. butts being started and the deck cut? A. No, sir. Q. After you left the schooner, how soon was it before she was well afire? A. Immediately after we had left it. Q. Did you hear an explosion? A. Yes, sir. Q. Were they forward or aft? A. I saw it at the same time I heard it; I saw smoke come out of the cabin. Q. Was there any puff? A- Yes, sir. Q. Did you ask the mate what he had done to set fire to it? A. Í asked him what he had done in the cabin, but he didn’t an'swer me; we were pulling in the boat there; I didn’t hear what his answer was. Q. Did he answer you? A. I don’t think so. Q. As you saw the schooner when you went aboard, would you have been willing to take a crew and sail the boat into some neighboring port? A. Yes, sir. Q. In your judgment was there any reason why the hole couldn’t have been patched and the schooner sailed to Nassau or any nearby port? A. I think the hole could be patched up and could sail it or tow it. * * * Q. Did you make any objection to having the boat set on fire? A. Yes, sir. Q. What-did you say (interpreter repeats question just before to the witness, ‘Did you make any objection to having the boat set on fire’) ? A. No, sir; I didn’t say anything. Q. You didn’t say a word to the mate? A. No; I didn’t say anything to him. Q. You simply went and got into the boat? A. Yes, sir. Q. You didn’t say that the boat ought not to be set afire? A. No, sir; I didn’t say that.”

Some time after the event the master of the Fram made a long entry in her log which contains the following on this point:

“As the schooner, however, appeared to sink very slowly we'decided at 10:30 a. m to send a boat on board to investigate matters. The Pram’s boat was then launched, manned by the first mate and an A. B. of the schooner and by the second mate and the boatswain of the Pram, who were ordered to sound the wells, examine the damage, and see whether anything could be done to save the vessel. Some time after the men had got on board smoke and fire were seen to be emitting both forward and aft on the schooner. The master of the schooner, who was on the bridge, was asked in the presence of the first mate of the Fram what this meant, when he replied that he had given his mate instructions to set fire to the vessel. On the return of the men the second mate was asked by the master of the Fram how much water there was in the vessel, they had taken with them two sounding rods, and it proved to be 4 feet, 9 inches aft, and 5 feet, 11 inches forward. They were then asked why the vessel had been set on fire, when the second mate replied that tile mate of the schooner had done so without his knowledge while he was engaged in sounding the holds and examining the damage.”

There was no motive to induce either the master of the steamer, the master of the schooner, the second officer of the steamer, or the mate ‘of the schooner to abandon and bum the schooner unnecessarily. To do so would increase the loss and liability of the owners respectively, and would be a crime. On the other hand, if the schooner had to be abandoned it would be good judgment to burn her as a derelict dangerous ro navigation. Our conclusion is that each master preferred to put the responsibility for deciding what should be done on the other, and that the master of the steamer finally determined to send his second officer over to inspect the schooner and act upon his own judgment.

If the mate of the schooner had fired her without consultation with the second officer who was responsible for the collision and who was only to inspect her condition, the latter would certainly be expected to exhibit indignation. And upon their return the master of the steamer would certainly be expected to hold the second officer grossly at fault for ehher setting her afire or permitting her to be set afire without consulting him. And if the master of the schooner had admitted to the master of the steamer when the schooner was seen to be on fire that he had secretly ordered his mate to do so, some show of anger or reproach would certainly be expected of him. But nothing of the kind appears. On the contrary every one connected with the steamer endured this gross fraud and treacherous breach of hospitality with the calmness of a New England Sabbath morning. After careful reflection the master of the steamer made the tepid entry in his log, placing the responsibility on the iriaster and mate of the schooner. Such are not the manners of the sea. With such a situation in mind counsel for the steamer could not write a brief or make an argument free from heat, and the court could not hear or read it without the same feeling.

The decree is affirmed.  