Pendleton Bros. v. Morgan

• Decision Date: 12 January 1926
• Docket Number: No. 2400.,2400.
• Citation: 11 F.2d 67
• Parties: PENDLETON BROS., Inc., v. MORGAN.
• Court: U.S. Court of Appeals — Fourth Circuit

11 F.2d 67 (1926)

PENDLETON BROS., Inc., v. MORGAN.

No. 2400.

Circuit Court of Appeals, Fourth Circuit.

January 12, 1926.

Herbert C. Fooks, of Baltimore, Md. (Fitzgerald, Stapleton & Mahon and Avery F. Cushman, all of New York City, on the brief), for appellant.

John H. Skeen, of Baltimore, Md. (Emory, Beeuwkes & Skeen, of Baltimore, Md., on the brief), for appellee.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

WADDILL, Circuit Judge.

The litigation in this case arose out of a collision between the schooner Brina P. Pendleton, owned by the appellant, and the barkentine City of Beaumont, of which the appellee, T. B. Morgan, was master. For convenience, the two vessels will be referred to by the names the Pendleton and the Beaumont.

The collision occurred on the morning of February 11, 1924, about 12:15 a. m., at a point approximately 25 miles southeast of the lightship off Charleston, S. C. The Pendleton, a four-masted schooner, was on a voyage from Jacksonville, Fla., to Portland, Me., laden with lumber. The Beaumont was proceeding in the opposite direction, from New York to Jacksonville, Fla., light. Both vessels were under sail. The night was clear and starry, the sea smooth, and the wind moderate from the north. Each vessel sought to place the fault of collision solely upon the other. The Pendleton's charges against the Beaumont are: (a) She had no lookout properly stationed; (b) she did not observe the schooner in time to avoid the collision; (c) she, running free, did not get out of the way of the schooner, which was close hauled; (d) she was not properly manned and equipped. The Beaumont charges precisely the same faults on the part of the Pendleton. The Pendleton placed its damage in the collision at $7,000, and the Beaumont its damage at $1,000.

The case was tried by the lower court mainly upon the depositions, though two of the Beaumont's witnesses, its master and mate, were examined orally before the trial judge. The district court decided that the collision was brought about solely by the fault of the Pendleton, adjudging the Beaumont to be free from blame, and accordingly dismissed the Pendleton's libel, and decreed in favor of the Beaumont for the damages sustained by it. From this decision the appeal in this case was taken by the Pendleton. The assignments of error present mainly the fact that the court erred in making the findings and rulings mentioned, and in concluding that there was no negligence on the part of the Beaumont, and that the Pendleton's negligence brought about or contributed to the collision.

The facts in this case are less in dispute than is usual in collisions occurring at night on the high seas. There seems to be no substantial disagreement as to the courses of the two vessels; the Beaumont being on a course approximately southwest by west, and the Pendleton on a course approximately northeast by east. The Beaumont was on the starboard tack and the Pendleton on the port tack. The chief difference respecting their navigation consists in which was the free, and which the incumbered, vessel. The Beaumont says that it was proceeding close hauled on the starboard tack, and that the Pendleton was sailing free, whereas the Pendleton claims that it was close hauled on the port tack, and that the Beaumont was running free. The decision of the district court, while holding the Pendleton solely at fault for the collision because of its failure to keep a proper lookout, to maintain proper lights of its own, and to seasonably observe the Beaumont's lights, nevertheless held that it was difficult to determine from the testimony whether at the time of the collision the Pendleton was sailing free or close hauled, but that the same was immaterial, since the Beaumont was...