The Michigan

• Decision Date: 02 October 1894
• Docket Number: 83.
• Citation: 63 F. 280
• Parties: THE MICHIGAN. v. THE MICHIGAN. NEALLY et al.
• Court: U.S. Court of Appeals — Fourth Circuit

63 F. 280

THE MICHIGAN.

NEALLY et al. v. THE MICHIGAN.

No. 83.

United States Court of Appeals, Fourth Circuit.

October 2, 1894

Eugene P. Carver and Robert H. Smith, for appellants.

J Wilson Leakin and Harrington Putnam, for appellee.

On the 16th June, 1893, at about 3:35 in the morning, the four-masted schooner John Holland and the British steamer Michigan were in collision, about nine miles eastward of Cape Henry, Va., in the Atlantic ocean. The Holland was 205 feet long over all, 40 feet beam, and about 18 feet deep. She was four-masted, and nearly new. At the time of collision, she was bound from Lambert's point (Norfolk) to Providence R.I., with coal. Her main deck was out of water about 3 feet at the main hatch, and her bow about 10 feet. Her lights were hung 20 feet above the rail. She was of medium sheer. The Michigan was 370 feet long, 41 feet beam, and 29 feet depth of hold. She had four masts. She had two bridges on deck. The lookout bridge was 35 feet back from her stem, and 6 feet above the deck. The main bridge was about the center of the ship, 170 feet to the rear of the stem, and 16 feet above deck. It was about 35 feet above the water, as the steamer was then loaded; the deck itself being about 20 feet above the water. The masthead light of the steamer was 90 feet above the water, and the green light 30 feet. The Michigan was bound from Baltimore to London, England, with a full cargo, chiefly cattle. Her highest speed on a voyage is about 11 1/2 knots an hour. Just before the collision she was running full half speed. The collision occurred by the Michigan running into the port side of the schooner, almost at right angles, striking her a little forward of the mizzen mast. The schooner sank in 40 or 45 minutes after receiving the blow. She had on a cargo of 1,702 tons of coal, and vessel and cargo were a total loss.

The weather on the morning of the collision was good. There was fog to the northward, which obscured Cape Charles light, but the light of Cape Henry does not seem to have been hidden from the schooner at any time before the collision. Fogs about the capes of Virginia are somewhat peculiar in the summer season. According to the testimony of a very intelligent pilot-- J. Richard Thompson-- produced by appellee, they usually rise after midnight; are hazy first with easterly winds; afterwards becoming more or less dense, and rarely rising more than 100 feet, above which height it is clear. As a rule, they are denser towards the water surface. They do not spread generally over the water, but form in separate clouds or banks, leaving the atmosphere more or less clear in greater or less intervals between them. Such was the character of the weather and the fogs on the night in which the collision under examination happened. The schooner John Holland came to anchor off Cape Henry, 8 miles east, about 10 o'clock of the night of collision, the weather being still. By 2 o'clock a very light wind from the east sprang up, and she got under way. She was put on the starboard tack, heading northeast by north, and remained so until the collision. The wind slacked soon after she got under way, so that she quite or very nearly lost her steerage way. On first starting she made only one mile and a half an hour over the water, and for some time before the collision was making very little headway at all.

Stevens, master, testifies that about 3 o'clock Cape Henry appeared to look dim, and he told the general mate to go forward, and get the fog horn out, and give it to the man on the lookout, and, if it grew foggy, to blow it one blast at a time. He then went down to his cabin, and heard it blowing a number of times as soon as he got in the cabin, and for 15 to 20 minutes afterwards heard it blowing regularly, one blast every 1 or 1 1/2 minutes. The fog horn of the schooner was a mechanical one, and could be heard for two or three miles. The rule of law governing the Holland on this occasion, as to her fog horn,-- she being on the starboard tack,-- was this: 'A sailing ship under way shall make with her fog horn at intervals of nor more than two minutes, when on the starboard tack, one blast. She shall be supplied with an efficient fog horn, to be sounded by bellows or other mechanical means.'

As to the blowing of the fog horn, Pommer, the wheelsman on duty, testifies that she began to blow about a quarter to 3, and continued blowing at the regular intervals until the collision, and that from the time he saw the white light of the Michigan to the collision was 20 minutes.

Kiel, the lookout of The holland, testifies that shortly after he cane on lookout the second officer gave him a fog horn, and the weather shut in a little hazy. As soon as it got hazy, which was a little before 3 o'clock, he began to blow one blast, and kept on blowing one blast. He saw the white light of the steamer about 3:05, and from the time of seeing her until the collision he was blowing the fog horn signal. Kiel had stated in a previous deposition that he blew one blast, in a manner to justify the inference that he had blown but one blast before the collision. In his testimony afterwards given he corrects this inference in the following extract taken from the record (page 46), which occurs after a recital of his earlier testimony: 'That is some testimony that you gave before Mr. Rogers, in Boston. Do you wish that to be understood as the correct testimony you gave? A. No. You said I blew one blast. I blew one blast at a time. I started to blow the foghorn first once, when it was passed up to me, to try if it was in good order; and I stopped about for five minutes; and the haze came around the ship; and then I blew one blast at a time for about twenty minutes; and finally, when I saw that the steamer was going afoul of us, I sounded one continuous blast all the time to give them warning. ' He adds that it was about 25 minutes from the time he commenced to blow the second time until the collision.

Olsen, another witness from the Holland's crew, who was not on duty, and slept near where Kiel, the lookout, was blowing the horn, says: There was such a noise around the deck, and the big horn blowing, that he could not go to sleep. It was sounding one blast at a time, somewhere about 20 minutes before the collision. It made a loud noise. It was in the forecastle head. He finally went on deck to see what was up, hearing howling around the deck, and the fog horn blowing.

Hultman, the second officer of the schooner, says in his testimony: He got the fog horn out, and gave it to the man on the lookout, and he blew it one blast to try it. Five or 10 minutes afterwards, the lookout began to blow a second time, one blast at a time, and continued to blow for 20 to 25 minutes up to the time of collision. He could see the masthead light of the steamer all along from the time he saw her green light, at 3 o'clock, until the collision. At 3 it was clear, but began to grow foggy; and at the time of collision it was misty, not foggy. Fearing that the steamer would not see his side lights, the schooner being very long, he showed a white light in the aft rigging at 3:30, until the collision occurred. The fog horn was sounded regularly during that period.

Schmidt, one of the schooner's crew, not on duty, who was in bed about midships at the time, says: He got out once. Could not tell the time. Heard the fog horn blow. Went below again, and turned in. Heard the fog horn blow four or five times, and went off to sleep again.

Stevens, master of the Holland, testifies, among other things: After giving orders through the second officer to have the fog horn blown, went down to his cabin. Heard the blowing a number of times as soon as he got into the cabin. About 15 or 20 minutes after he went below, he heard the horn blowing very regularly. He had come on deck a while before the collision, and heard the fog signals blown two or three of four times, one blast at a time. The lookout began afterwards to blow blasts one right after another. This he forbade, and was told by the lookout that he blew the long blast because the steamer was showing her red light and coming right into the schooner.

Capt Layland, master of the Michigan, testified, among other things, as follows: His steamer had on a full cargo, but was not quite down to her lowest mark in the water, and drew 23 feet 8 inches forward and 24 feet 6 aft. Left Baltimore about noon of the 15th June, and after midnight discharged pilot four to five miles off eastward of Cape Henry. Then gave the order to go ahead, and at 3:05 put her at full speed. Had a lookout on the forward bridge, the captain himself and the second officer being on the captain's bridge, and a man was at the wheel. There was no lookout on the deck in the stem of the ship. No sail was set. Steered E.S.E. until Cape Henry bore W., after which the course was changed to E. 1/4 S., at about 3:20. The German steamer Dresden started out about the same time, bound to Bremen, and was a mile behind. Two or three minutes afterwards, noticed that Cape Henry light was obscured, and that his side lights had a little haze around them. Was going then 10 knots an hour, and he put the engines at half speed, and blew the fog whistle. Heard the German steamer's whistle astern. Heard no other fog signals. Half speed was four to five knots an hour. Shortly after slacking speed he saw a light forward quarter to half a point on his starboard bow. By the use of glasses, saw it was a red light. Gave the order full speed astern and blew whistle four times. Heard one blast of their fog horn when 30 to 50 feet off, and heard their men shouting just before the collision. The schooner sank about 40 to 45 minutes after the collision. In the interval the crew of the schooner...