MOSES PRESCOTT ET AL. v. THE UNITED STATES. ALBERT J. LORDLY ET AL. v. THE SAME. CHARLES H. DEARBORN ET AL. v. THE SAME. JOHN P. C. BURPEE v. THE SAME. M. DOUGLASS AUSTIN v. THE SAME. JAMES G. McNALLY v. THE SAME. WILLIAM G. DYKEMAN v. THE SAME. SIDNEY JANE HIGGS v. THE SAME. STEPHEN JENNINGS v. THE SAME. THE INSURANCE COMPANY OF NORTH AMERICA v. THE SAME. SARAH CUMBERLAND v. THE SAME, JAMES A. VAN WART v. THE SAME. HENRY CHESNUT v. THE SAME. GILBERT GREEN v. THE SAME.
[No. 12072.
Decided June 4, 1884.]
On the Facts.
A revenue cutter steaming nine knots an Four in a foggy night discovers a schooner one point on her starboard bow. Two minutes elapse before the deck officer signals to slow her engines. The schooner’s lights are set; she is on her proper course and carrying moderate sail. In the collision she is cut into about four feet.
I. It is unjustifiable for a revenue cutter in the absence of a pressing emergency to steam nine knots an hour in a foggy night in a part of the high seas where probably she will meet a number of coasting vessels.
*685II. The deck officer of a steam vessel is bound to know the rate at 'which she is going and the length of time necessary to reverse her engines and arrest her speed. If after sighting a vessel at night, and while going at high speed, he allows two minutes to elapse before slowing her engines, she will be responsible for a collision with a sailing vessel.
The Reporters7 statement of the case:
Jurisdiction of this action was conferred by the Act 3d March, 1879 (20 Stat. L., 483). The following are the facts as found by the court:
I. On the 18th of July, 1877, Moses Prescott and John Prescott, citizens of the State of Maine, were the owners of the schooner “ Don Pedro,” of the city of St. John, New Brunswick, of 97.97 tons burden British measure, and 76 feet long; and her crew consisted of a master, a mate, a steward, and three seamen; and she was in good condition.
II. Between 9 and 10 a. m. of that day said schooner sailed from Boston, *Mass., bound to St. John, haviug on board a general cargo, and passengers two women, two children and a young man.
TTT- At 11 p. m. of said day the said schooner was east of Bond Island, and distant about 20 to 25 miles from the' main land, in the usual ;track of coasting vessels proceeding from Boston to St. John. The wind was moderate from the south southwest. The schooner’s course, immediately before the occurrence of the collision hereinafter described, was east northeast, and her speed was between five and six knots an hour. The sails she had set were flying jib, jib, foresail, mainsail, and main gaff topsail; and her foresail and mainsail were broad off over her port side. .In her starboard fore rigging was a green light and in the port fore rigging was a red light, each about 9 feet above the deck and in good order. The watch on her deck from 8 p. m. to the time of the collision was the master and two of the seamen; and one of the seamen was at the wheel steering, and the other was on the lookout at the bow. About 8 p. m. a fog began to come up, and continued till the collision occurred. The lookout during that time blew a fog-horn, with a strong blast, at brief intervals, until immediately before the collision. The schooner’s watch did not discover the vessel with which she collided until she was so near that it was impossible for the schooner to have avoided the collision. As *686soon, as the master saw that a collision was imminent, he had the helm put aport, and the schooner had luffed a point when she was struck, as hereinafter stated.
IY. On the same night the United States revenue cutter U. S. Grant, an iron screw-propeller of 350 tons burden and 148 feet long, which had sailed from Portland, Me., in the evening, was proceeding southward, under steam, on a south half west course. Her second lieutenant was officer of the deck and on the bridge, and she had a lookout at the bow, and three lights set, — a green one in the starboard fore rigging, a red one in the port fore rigging, and a white one at the foremast head. About 9 p. m. she began to encounter fog; which was not continuous, but would come up and break away at intervals. At 10.20 the fog set in heavy, and continued so until 10.50. While it was thick her steam-whistle was sounded constantly at very short intervals; but at 10.50 the fog somewhat broke away, and the whistle ceased till 11 p. in., when the fog thickened up again, and the sounding of the whistle was resumed. From 8 to 9 p. m. the cutter’s speed was ten knots an hour; from 9 to 10 it was nine knots and a half; and from 10 to about two minutes after 11 it was nine knots. Within a minute after 11 her lookout reported a sail on the starboard bow, and at the same time the officer of the deck saw a dark object in the direction indicated by the lookout, one point on the starboard bow. Two minutes afterward, perceiving that the object was nearing the cutter, the officer of the deck sounded the slow-bell to the engineer at the engine, and rapidly followed it with the stop-bell, and then with a signal to reverse the engines. It does not appear definitely what interval there was between the slow-bell and the stop-bell, and between the latter and the signal to reverse the engines; but the engines were stopped at 5 minutes after 11, and immediately thereafter reversed. Her engines could not be stopped and reversed in less than two minutes. Between the striking of the slow-bell and the stopping of the engines the helm of the cutter was put astarboard. The cutter was forging ahead notwithstanding the stoppage and reversal of her engines, and immediately after 5 minutes after 11 her stem struck the schooner Don Pedro square abeam in the port fore chains, and pierced into her side about 4 feet into her deck. Immediately after the blow was struck the cutter began to back from the schooner, and as soon as she got clear *687from her her engines were stopped, and she sent her boat to the schooner and took off her crew and passengers to the cutter. The schooner had then heeled over to port, and was in a sinking condition, and it was supposed she would go to the bottom; and the cutter left her there.
Y. The schooner did- not go to the bottom; but in the following October she was in Harmon’s Harbor, Georgetown, Me. How she was taken there does not appear. She was then in a badly wrecked condition. After advertisement in the Bath Daily Times, from the 6th to the 15th of November, 1877, she was, on the lastnamed date, sold at public auction, and was bid off at $270; which was $31.75 more than the expenses paid by the claimants to salvors and others, in connection with getting her into the harbor and the care of her while there, and the sale of her.
YI. The value of the Don Pedro when she w.as lost was $4,600.
YII. At the time she was lost the Don Pedro had on board a general cargo belonging to different parties, as stated below, shipped on her at Boston, the value of which at that place, when shipped on her, is stated in connection with each item.
Lordly, Howe & Co., beds and mattresses, $244.82.
J. & W. F. Harrison, 300 barrels corn meal, $940.
Dearborn & Co., 1 case of indigo, $257.76.
Burpee & Co., 7 kegs of clinch rings, $99.75.
M. D. & H. A. Austin, assorted merchandise, $367,77.
James G. McNalley, furniture, $231.50.
Dykeman & Yan Wart, merchandise, $28.10.
Sydney Jane Higgs, household and kitchen furniture, paintings, parlor ornaments, wearing apparel, and books, $445.
Stephen Jennings, 40 boxes of bottles, $270.
Hall & Fairweather, 200 barrels of corn meal, $620.
Sarah Cumberland, trunks and personal effects, $427.
YTTT- A portion of the Don Pedro’s cargo was saved, taken to Boston, and sold at public auction; and of the proceeds 50 per cent, was applied to salvage, and the remainder was paid to the owners of the portion so saved, as follows:
To Lordly, Howe & Co., $13.51; ,
To Dearborn & Co., $101.28;
To Burpee & Co., $6.
*688The portion of Burpee & Co.’s consignment which was saved, was sold for $12; hut the purchasers thereof credited them with $57 therefor, less the $12, so that Burpee & Co.’s loss was reduced, after deducting $6 for salvage, to $48.75. All the rest of the cargo was a total loss.
IX. The claim of M. D. & H. A. Austin above set forth, has, since the lóss, been assigned by their assignee in insolvency, under the laws of New Brunswick, to M. Douglass Austin.
X. The shipment of Hall & Fairweather above set forth, was insured for $650, in the Insurance Company of North America, of Philadelphia, Pa.; and the said Company paid said Hall & Fairweather that sum as on a total loss of said shipment.
XI. The freight to be paid on the said cargo, if delivered at St. John, was $375. It does not.appear what the expenses of the voyage from Boston to St. John would have been.
Upon the foregoing facts the conclusion of law is, that the following claimants are entitled to recover against the defendants, as follows:
Moses Prescott and John Prescott, $4,568.75, for the value of the Don Pedro at the time of the loss, to wit: $4,600, less $31.75, received by them from the sale of the wreck, as stated in finding Y; and $375, for freight on her cargo; the two sums amounting to $4,943.75.
Albert J. Lordly, Jonas Howe, and John D. Howe, partners under the name and style of Lordly, Howe & Co., $231.25.
Charles H. Dearborn, John N. Dearborn, and William S. Green, partners under the name and style of Dearborn & Company, $156.48.
John P. C. Burpee, doing business under the name and style of J. & F. Burpee, $48.75.
M. Douglass Austin, $367.77.
James G. McNalley, $231.50.
William G. Dykeman and'William H. Yan Wart, partners under the name and style of Dykeman & Yan Wart, $28.10.
Sydney Jane Higgs, $445.
Stephen Jennings, $270.
The Insurance Company of North America, of Philadelphia, Pa., $650.
Sarah Cumberland, $427.
The further conclusion of law is, that the petition, as to the claims of James A. Yan Wart, Henry Chestnut, and Gilbert Green, be dismissed.
*689Mr. A. H. Holmes for the claimants.
Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants*.
Drake, Ch. J.,
delivered the opinion of the court:
The circumstances of the collision in this case are set forth with particularity in Findings III and IY, and need not be recounted in this opinion. They present a state of facts which, under well-settled rules of law, can lead to but one conclusion, and that in favor of the claimants.
Briefly stated, those facts are that, at 11 o’clock at night, in a fog, the schooner Don Pedro was sailing on the open sea, at the rate of between five and six knots an hour, on an east northeast course; and the U. S. revenue cutter U. S. Grant, a screw-propeller, was steaming on a south half west course, at a speed of nine knots an hour; when the officer of the deck of the cutter discovered the schooner one point on the cutter’s starboard bow. It was not until two minutes after he made this discovery that he gave a signal to slow the engines; and though he followed it rapidly with a signal to stop them, and then with one to reverse them, it was too late to prevent the collision.
There is no fair pretense that the schooner was in the least fault. Her lights were set and her watch stationed. She was carrying no more sail than was right with a moderate wind, and she was on the right course for her destination.
The whole fault was on the part of the cutter, and it was twofold: 1. It was quite unjustifiable, in the absence of a pressing emergency, — of the existence of which there was no evidence before us, — for her to have kept up a speed of nine knots an hour, in a foggy night, in a place where she might expect to meet, probably, a considerable number of coasting vessels. The universally understood rule of the road is, that a steamer is bound to keep out of the way of a sailing vessel, and when she runs into one, she is presumably always in fault, and must exculpate herself. The cutter’s speed of nine knots an hour was equal to a distance of 911 feet or 303 yards a minute; which, in a fog at night was in a high degree dangerous. 2. Her deck officer, knowing her speed, and knowing, or bound *690to know, also, that her engines co.uld not be stopped and reversed in less than two minutes, suffered that length of time to elapse before he made any attempt to arrest her speed. We are satisfied that, if the cutter had kept1 up her speed, she would have cut the schooner in two. That, after delaying two minutes to slow, stop, and reverse the engines, she cut only four feet into the schooner’s deck, is conclusive evidence to our minds that, if instantly on seeing the schooner he had stopped the cutter’s engines, the collision would not have occurred. To avoid it, it would not have been necessary for the engines to have been reversed; simply stopping them would have been enough. In our judgment it was a gross fault on his part to have so long delayed an effort to check the cutter’s speed.
On these grounds the claimants are entitled to judgment; which will be entered in favor of them, respectively, for the amounts stated in the conclusions of law.