Watts v. United States

• Decision Date: 27 May 1903
• Citation: 123 F. 105
• Parties: WATTS et al. v. UNITED STATES.
• Court: U.S. District Court — Southern District of New York

123 F. 105

WATTS et al. v. UNITED STATES.

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

May 27, 1903

Wing Putnam & Burlingham, for libellants.

Henry L. Burnett, U.S. Atty., and Arthur M. King, Asst. U.S. Atty.

In Admiralty. Suit for collision, brought under special act of congress.

ADAMS District Judge.

On the 28th day of May, 1898, about 7:45 o'clock P.M., a collision occurred, in a fog, about 12 miles southerly and easterly from Fire Island Lightship, between the U.S. Cruiser Columbia and the British Steamship Foscolia, a freighter owned by the libellants, which resulted in the total loss of the latter, with all of the cargo on board and the greater part of the stores and of the personal effects of the crew.

Shortly after the disaster, certain proceedings were taken on behalf of the owners of the Foscolia and her master, to perpetuate the testimony of those on board, pursuant to an order of the Circuit Court for this district, dated July 6, 1898, the United States being duly represented therein.

Subsequently an Act of Congress was adopted, which was approved on the 27th day of May, 1902-- 32 Stat. 242, c. 887-- which provided:

'That the claim of the owners of the British steamship Foscolia sunk by collision with the United States steamship Columbia on the evening of May twenty-eighth, eighteen hundred and ninety-eight, near Fire Island light-ship, for and on account of the loss of said vessel and cargo, may be submitted to the United States district court for the southern district of New York, under and in compliance with the rules of said court sitting as a court of admiralty; and said court shall have jurisdiction to hear and determine and to render judgment thereupon: Provided, however, That the investigation of said claim shall be made upon the following basis: First, the said court shall find the facts attending the loss of the said steamship Foscolia and her cargo; and, second, if it shall appear that the responsibility therefor rests with the United States steamship Columbia, the court shall then ascertain and determine the amounts which should be paid to the owners, respectively, of the Foscolia and her cargo, in order to reimburse them for the losses so sustained, and shall render a decree accordingly: Provided, further, That the amounts of the losses sustained by the master, officers, and crew of the Foscolia may be included in such decree.'

A libel, setting forth the claims facts, was accordingly filed herein on the 19th day of June, 1902, to recover for the losses, said to amount to $226,889.36. The libel charged fault upon the Columbia in that

'The Columbia was not showing the masthead and sidelights required of a steam vessel, under Article 2; although it was dense fog she was not sounding the fog whistles required by Article 15; she was not going at a moderate speed in fog, as required by Article 16; she was not observing Article 19, in that with crossing courses the Columbia having the Foscolia on her starboard side did not keep out of the way of the Foscolia; and was required also by Article 22 to avoid crossing ahead of the Foscolia; and further in violation of Article 29 in that the Columbia had not sufficient lookouts in the proper station; also that after sighting the Foscolia the Columbia's starboard helm tended to throw her quarter against the Foscolia, and thereby aggravate the collision; and in other faults which will be shown on the trial of this cause.'

The United States duly appeared, by their attorney for this district, and filed an answer on the 9th day of July, 1902, in which it was admitted that a thick fog prevailed at the time and that the Columbia had all her lights extinguished or screened and was sounding no fog signals but denied the other allegations of fault.

No fault was charged upon the Foscolia.

Subsequently some testimony was taken in this action on behalf of the Foscolia, by commission and otherwise and the testimony taken in perpetuam rei memoriam, heretofore alluded to, has been admitted in evidence here. Some testimony taken by the respondents in a Naval Court of Inquiry June 8th and 9th, 1898, has been admitted in evidence here by consent. Additional testimony on the part of the Commander of the Columbia was taken in this action. Certain proposed findings, based upon the testimony, setting forth the principal facts of the collision, were, on the 7th day of January, 1903, agreed upon by the parties as follows:

'1. The Foscolia was a British merchant vessel owned by the libellants, being 260 feet long, about 36 feet beam, 918 tons net. She was drawing 19 feet 3 inches forward and about 20 feet aft. She was loaded with a general cargo of grain, provisions and other food stuffs, to be taken from New York to Bordeaux.

'2. At 2:50 P.M. of Saturday, May 28th, the Foscolia passed Sandy Hook light-vessel, taking a course of E. 1/2 S. true, and then proceeded at a speed of 7 1/2 knots per hours. Capt. John Evans was in command with a full corps of officers and crew. At about five minutes to seven Capt. Evans took charge of the bridge, remaining on the starboard side, and ordered the regulation lights to be set, which was done at about 7:05 or 7:07. A man on the lookout was stationed forward in the eyes of the ship. The second officer Reginald Thomas, was on the port side of the bridge.

'3. At 7:15 dense fog set in, the speed of the engines was reduced to 3 1/2 knots per hour, the whistle was steadily blown at intervals of a minute and a half, and a careful lookout was maintained by Arthur J. Shaw, an able seaman, forward on the forecastle head, as well as by the captain and second officer on the bridge.

'4. Just before 7:45 the officers on the Foscolia's bridge and the lookout had seen over the denser fog the tops of the funnels of the Columbia bearing about two or three points on their port bow, and heading across the Foscolia's course. The Foscolia's engines were at once backed full speed, and three blasts of her whistle sounded, and just before the collision, as the way was nearly off the Foscolia, her helm was put hard-aport for sternboard.

'Before the two vessels had come in contact several persons on the Columbia noticed that the Foscolia's bow was already turning to port.

'5. The Columbia was a triple-screw armed cruiser engaged in patrol duty, being one of Admiral Howell's squadron. Her dimensions are: Length over all, 415 feet; beam, 58 feet, 2 1/4 inches; mean draft, 22 feet, 6 inches. She is equipped with two masts and has four funnels, the tops of which are 57 feet, 9 inches above her load line. See agreed table of dimensions. At the time of this collision she was in command of Capt. James H. Sands, with a full corps of officers and crew.

'6. The Columbia had left Block Island intending to pass to the on her regular cruise towards a point off Five Fathom Bank light-vessel. The Columbia had been proceeding in fog of varying density ever since her departure from the southeastern point of Block Island. After rounding Montauk Point, she had taken a westerly course in the endeavor to present to approaching vessels, as small a body as she could to a possible collision. At about 6 o'clock the fog had lightened materially, so that vessels could be seen for a considerable distance. The colors of the Columbia, a little after six, had been hoister to a passing transatlantic steamer, which remained in sight for half an hour.

'7. Early in the evening from 6 o'clock to 6:30 o'clock a lookout had been stationed on the foremast, but for a considerable time before the collision there was no lookout forward on the Columbia, or within 94 feet of her stem. Just prior to the collision the Columbia's navigation was in charge of Ensign Pringle, who was standing on the front of the officer's upper bridge, which is 37 feet 6 inches above the load line, and 73 feet 3 inches abaft the stem or jackstaff. Another person charged with the duty of a lookout was apprentice (of the second class) Charles A. Benedict, who was standing on the starboard side of the officers' bridge at a line crossing the fore and aft dimension of the keel, 94 feet abaft the stem and about 20 feet in the rear of the position of Ensign Pringle. There was no change made in the station or number of the lookouts from where they were usually placed in clear weather. At this time and until the collision there was no perceptible wind, the sea smooth, the fog was very dense, especially low, so that objects could not be seen for more than 100 yards, although higher it was less dense at an altitude of 50 feet above the water.

'The Columbia had the following regular lookouts in position, (1) starboard end of the bridge, (2) port end of the bridge, (3) starboard side of the upper deck aft, (4) port side of the upper deck aft. In addition to the senior and junior officers of the watch there was a man at the con, and a number of men on the forecastle as well as on the quarter-deck to see if anything could be seen from that position, that could not be seen from above, but they were not regular lookouts.

'Regarding the lookout's Position, the witness Benedict testified:

''Q. What do you say as to the position of the lookout on the starboard side of the bridge being advantageous or not for seeing vessels? A. No, sir; I don't think you could see as good as you could from the deck.

"Q. Not quite as well as from the deck? A. No sir.

"Q. Could you see vessels abeam as easily? A. Well, I don't know. I think I could see just as well; not much difference.'

'Testimony of Seaman John Nicholas Pruser, as to lookouts:

''Q. 35. As the man at the wheel was it your duty to keep a lookout ahead to a certain extent to see that you were not running into something? A. Well, we did, sir; aboard;

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