Hawkins v. The Viola

• Decision Date: 18 December 1893
• Citation: 59 F. 632
• Parties: THE VIOLA. v. THE VIOLA. HAWKINS
• Court: U.S. District Court — Southern District of New York

59 F. 632

THE VIOLA.

HAWKINS v. THE VIOLA.

United States District Court, S.D. New York.

December 18, 1893

Owen Gray & Sturges, for libelant.

Wing Shoudy & Putnam, for respondent.

BROWN District Judge.

On the 7th of November, 1893, at about 2 A. M., the libelant's schooner Monette, bound east in Long Island sound, was sunk through a collision with the schooner Viola, bound west, at a point about south of the Stonington light. The above libel was filed to recover for the damages to the Monette and her cargo.

The wind was moderate, from the northward. The Monette had been previously making a course of east half north, and claims to have been closehauled on her port tack. The Viola had been making a course of west half north, admitting that she had the wind a little free. Each was making some four or five knots an hour. If the Monette was closehauled, it was the duty of the Viola to keep out of her way. But the latter contends that the Monette also had the wind two or three points free, and that it was consequently her duty to keep out of the way of the Viola. For the latter it is also contended that the Monette, as she approached showed no colored lights, and that the collision was solely the fault of the Monette.

The master of the Monette was on the lookout forward, and testifies that both the Viola's colored lights were seen at a considerable distance, and continued to be seen a little on the starboard bow, until when about four or five lengths distant the red light was shut in and the green light only seen, still on the starboard bow; that the Monette then luffed a very little to the northward, so that her sails trembled, to give the Viola a little more room; but that the Viola, by a strong luff, turned to the northward and struck the Monette between the fore and main rigging, causing her to sink in a few minutes.

On the Viola the mate was forward, and the wheelsman and captain aft. Nothing was seen of the Monette, according to the testimony of the mate, until she was within two or three lengths; that is, less than 300 feet distant, when she was seen, as he says, about a half a point on the lee or port bow. She was immediately reported to the captain, who at once gave the order 'hard a-port,' and the wheelsman immediately proceeded to put the helm hard down; but before the wheel was down the vessels struck. No colored lights were seen on the Monette at any time.

The conflict of testimony in regard to the lights is embarrassing. Not long before, the mate of the Viola had gone forward to relieve the former lookout, who, at the same time, went aft to relieve the mate at the wheel. The first that he saw of the Monette was when she was some two or three lengths off, as he estimates; and then he did not see any colored light, nor any light, up to the time of collision, though the Monette passed partly across his bow. He reported her to the captain as showing no lights; the captain looked and saw the Monette, but no light. Upon this testimony, I must hold that the Monette's colored lights were not properly showing at that time. The Excelsior, 33 F. 554; The Eri, 3 Cliff. 456; The Monmouthshire, 44 F. 697; The Drew, 35 F. 791, and cases there cited.

I think the weight of evidence is to the effect that the Monette was sailing practically closehauled, and that the Viola had the wind several points free. I am confirmed on this latter point by the fact that the sails of the Viola were full at the time of collision, though her wheel had been put to port, though not yet hard down. So small a vessel--less than a hundred feet long--would luff pretty rapidly. The sails of the Monette, on the other hand, were shaking at the time of the collision, from the effect of a slight luff. I do not lay much stress on the testimony in regard to the angle of collision in the night. It was probably considerably less than seven points.

I am constrained to find that a good lookout was not kept up on the Viola. The night was clear and starlight, and the sea smooth. A vessel under sail, without lights, according to the testimony, could be seen a quarter of a mile off; and this is not contradicted. From the testimony before me in other cases, this seems to me a very moderate estimate. Yet the Monette was not seen, or reported, as the mate estimates, till within a few lengths, when there was not time even to put the wheel hard over before collision. Had the Monette been seen, as she ought to have been seen, when a quarter of a mile distant, I cannot doubt that the Viola could easily have kept out of her way, even though no light was seen on the Monette.

There is a conflict of evidence as to the bearing of the two vessels. The Viola claims that the Monette was seen under her port bow. The witnesses for the latter testify that for a considerable period before the collision the green light only of the Viola was visible, showing that she was on the Viola's starboard bow. The failure of the Viola to notice the Monette until she was so near, may well have led to imperfect observation and mistake as to the precise bearing of the Monette. I am constrained to find that the latter was in fact on the Viola's starboard bow, and that this mistake led to the collision through the order given to port instead of to starboard, the Viola's helm. This mistake was so near collision as not to be itself ascribed as a fault; for it was doubtless the effect of the excitement in extremity. But as this arose in consequence...