The Charles Morgan v. Kouns

• Decision Date: 04 May 1885
• Citation: 115 U.S. 69,5 S.Ct. 1172,29 L.Ed. 316
• Parties: THE CHARLES MORGAN and others v. KOUNS and others
• Court: U.S. Supreme Court

5 S.Ct. 1172

115 U.S. 69

29 L.Ed. 316

THE CHARLES MORGAN and othersv.KOUNS and others.

May 4, 1885.

R. H. Marr and T. D. Lincoln, for appellants.

C. B. Singleton and R. H. Browne, for appellees.

WAITE, C. J.

This is a suit in admiralty, brought by the owners of the steam-boar 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 with the steam boat 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, ect., of the libelant 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 libelants were entitled to recover the value of the boat, and also the value of stores and supplies, $1,376.16, and $500 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 libelants, should recover the value of a lady's gold watch, $150; of a gentleman's gold watch, $120; and $75 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 libelants 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.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.Mean-while 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 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 ignal 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 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 smae as in the district court, and also for the value of the stores, supplies, ect., set forth in the supplemental libel, $1,376.16.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 courtthe 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 decuments connected with that proceeding, including an appeal to the district inspectors and their decision thereon.To the introduction of this evidence the libelants 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 libelants, 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 atten- tion of the witness was called to the evidence given by him in the cases of Menge v. Insurance Cos., * * * 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...