THE CHARLES MORGAN

• Decision Date: 04 May 1885
• Citation: 115 U. S. 69
• Court: U.S. Supreme Court

The Charles Morgan

Argued April 24, 1885

Decided May 4, 1885

115 U.S. 69

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF LOUISIANA

Syllabus

In case of collision on the Mississippi, if the facts show that the injured vessel made the first signal, and that it was responded to by the offending vessel, and that no question was made below as to its being made within the time

Page 115 U. S. 70

required by the Rules of the Board of Supervising Inspectors, it will be presumed to have been made at the proper distance, in compliance with the Rules.

The circuit court, in an appeal from a decree of a district court in admiralty, may in its discretion permit amendments to the libel enlarging the claims and including claims rejected below as not specified in the pleadings.

The Lucille, 19 Wall. 73, affirmed and applied.

The North Carolina, 15 Pet. 40, distinguished.

The finding of the board of local inspectors, and the documents connected therewith are not admissible in a collision suit in admiralty for the purpose of showing that the offending vessel was in her proper position in the river and had proper watches and lights set at the tune of the collision.

When depositions of witnesses, made in another suit, are offered for the purpose of impeaching their evidence and are admitted, and exception is taken thereto, and the bill of exceptions shows that "in the cross-examination of each of said witnesses, the attention of the witness was called to the evidence" given by him in the other case and the said witnesses were specifically examined as to the correctness of said evidence, and that,

"at the offering, no objection was made that the evidence offered was not the evidence of said witnesses respectively, or that the same had been imperfectly taken and reported,"

but the cross-examination is not incorporated into the bill of exceptions, it will be presumed that ample foundation was laid for the introduction of the evidence.

Although the general rule is that when contradictory declarations of a witness made at another time in writing are to be used for purposes of impeachment, questions as to the contents of the instrument without its production are ordinarily inadmissible, yet the law only requires that the memory of the witness shall to so refreshed as to enable him to explain if he desires to do so, and it is for the court to determine whether this has been done before the impeaching evidence is admitted.

This was a collision case in admiralty. The facts are stated in the opinion of the Court.

MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.

This is a suit in admiralty, brought by the owners of the steamboat Cotton Valley to recover for the loss of their boat and certain articles of personal property belonging to Martin H. Kouns alone in a collision on the Mississippi River

Page 115 U. S. 71

with the steamboat Charles Morgan. In the original libel filed in the district court, claim was made only for the value of the boat and for an itemized account for clothes, jewelry, furniture, etc., of the libellant Kouns. The district court found the Morgan in fault, and referred the cause to a commissioner to take testimony and report the damages. The commissioner reported that the libellants were entitled to recover the value of the boat and also the value of stores and supplies, ,376.16, and 0 cash in the safe of the boat and belonging to her, lost at the time of the collision; he also reported that Martin H. Kouns, one of the libellants, should recover the value of a lady's gold watch, 0, of a gentleman's gold watch, 0, and cash lost. The claimant of the Morgan excepted to the allowances for stores and supplies and for cash in the boat's safe on the ground that they had not been sued for. The district court sustained this exception and gave a decree only for the value of the boat and the allowances by the commissioner to Kouns. From this decree both parties appealed to the circuit court. When the case got into the circuit court, leave was granted the libellants to file a supplemental and amended libel setting up their claim for stores, supplies, and cash, proved before the commissioner in the district court but rejected by that court because not included in the original libel.

Upon the hearing in the circuit court, that court found, among other things, that at the time of the collision, the Cotton Valley, bound for Red River, was the ascending boat, and the Charles Morgan, bound for New Orleans, the descending boat; that the collision occurred near Bringier's Point, about three miles below Donaldsonville; that both boats were properly officered and manned and had proper watches and proper lights set.

"Third. That prior to the collision the Cotton Valley was in her proper position in the river near the left bank, following up the Bringier Point preparatory to rounding the same, while the Charles Morgan was above the point, perhaps in the middle of the river, but heading across and near the point to a wood yard light in the bend of the river below the point. "

Page 115 U. S. 72

"Fourth. That when the respective boats were in the positions just described, the Cotton Valley blew one whistle as a signal that she would pass the Charles Morgan to the right, which signal the Charles Morgan answered with one whistle, as a signal that the pilot of the Morgan understood, and would also pass to the right."

"Fifth. Both boats kept on their respective courses, approaching each other, when the pilot of the Morgan sounded three or four short whistles, stopped the Morgan's engines, and soon commenced backing the wheels, but not enough to stop the Morgan's headway, and without in anywise changing her course to starboard or port."

"Meanwhile the Cotton Valley, rounding the point at the three or four short whistles given by the Morgan, understanding the signal as a hail, stopped the engines. At this time, the boats were within one hundred yards of each other, the Morgan, with her headway and the current, coming straight on without changing her course. The pilot of the Cotton Valley, foreseeing an inevitable collision if he remained still, started the Cotton Valley ahead, sheering to starboard, but this forwarding of the Cotton Valley was too late, for almost immediately the Charles Morgan, head on, struck her on the port side, about twenty-five feet forward of the stern and at an angle of about sixty degrees, with such force as to cut through her guards into her hull nearly to the keelson, and cause her to sink in about ten minutes."

"Sixth. That the Charles Morgan and her officers were in fault, as the proper position of the boat was nearer the middle of the river and as her officers disregarded the passing signal given and answered, and made no effort to change the boat's course to the starboard, by which the boats would have been so separated that a collision would have been avoided."

"Seventh. That the Cotton Valley was not in fault, as she was in her proper place as the ascending boat, and as she gave the proper signal for passing. The failure of the pilot to understand the signal of three or four short whistles given by the Morgan was not, under the circumstances of the case, a fault, and if the starting of the

Page 115 U. S. 73

Cotton Valley's engines and sheering to starboard when the Morgan was upon them was an error, it was an error of judgment in extremis, not putting the boat in fault."

Upon these facts, a decree was rendered against the Morgan and her owners and stipulators for the value of the Cotton Valley and for the value of the personal property belonging to Kouns the same as in the district court, and also for the value of the stores, supplies, etc., set forth in the supplemental libel, ,376.16. From that decree this appeal was taken.

The record contains a bill of exceptions which shows that in the progress of the trial in the circuit court the defendants offered in evidence a certified copy of

"the finding of the board of local inspectors of steam vessels, New Orleans, December 18, 1878, being their decision in the case of the collision between the steamers Cotton Valley and the Charles Morgan, and signed by C. B. Johnson and J. A. Moffat, United States local inspectors."

They also offered certain other documents connected with that proceeding, including an appeal to the district inspectors and their decision thereon. To the introduction of this evidence the libellants objected, and their objection was sustained. To this ruling the claimant of the Morgan excepted, and the exception was made part of the record.

It is also shown by another bill of exceptions in the record that after the depositions of Albert Stein, Harry W. Stein, Sylvester Doss, John B. Evelyn, and Livingston McGeary had been read on behalf of the claimant of the Morgan, the libellants, for the purpose of impeaching and contradicting their evidence, offered certain depositions of the same witnesses used on the trial of certain other suits, growing out of the same collision, between one Menge and some insurance companies, to which the claimant was not a party. To the introduction of this evidence the claimant objected on the ground that no basis for offering said purported depositions had been laid, it not having been shown or pretended that said purported depositions were ever submitted to the said witnesses, or otherwise verified as their evidence in said causes, but as,

"in the cross-examination of each of said witnesses in this case, the attention

Page 115 U. S. 74

of the witness was called to the evidence given by him in the cases of Menge v. Insurance Companies, . . . and the witnesses were specifically examined as to the correctness of said evidence, and admitted having testified therein,"

and

"no objection was made that the evidence offered was not the evidence of said witnesses respectively, or that the same had been improperly taken or reported,"

the depositions were admitted for the purpose for which they were...