#### The Hercules. Philadelphia & Reading R. Co. *v.*Warren Foundry & Machine Co. Same *v.*Perkins and others.

*(Circuit Court, D. Massachusetts.*

August 14, 1883.)

Collision—Steamer,—Schooner—Torch—Damages Divided.

The evidence in this case *held*to sustain the judgment of t-Iie district court as to the fault of the steamer in not avoiding the schooner with which she collided, but that the failure of the schooner to exhibit a torch, as required by Rev. St. § 4234, “ on the approach of a steam-vessel during the night-time,” rendered her also in fault, and that the damages should be divided between the two vessels.

In Admiralty.

*Morse*<# *Stone,*for claimants.

*John C. Dodge & Sons,*for Warren Foundry & Machine Company.

*John Lathrop*and *John G. Dodge,*for Perkins and others.

Lowell, J.

I agree with the district court that the steamer’s people have not sustained the burden which rests upon them of proving a change of course on the part of the schooner. It is not easy to understand how they could have mistaken a green light for a red one; but it is still more difficult to believe in so sudden and complete a change by the schooner as would account for the collision. The “stereotyped excuse,” as it has come to be called, from an energetic remark of Grier, J., in *Haney*v. *Baltimore Steam Packet Co.*23 How. 291, “always improbable, and generally false,” that the sailing vessel changed her course, always seems probable to the persons on board the steam-ship; for, assuming as they do, that they have made no mistake in courses and distances, the necessary inference is that the other vessel has failed in the simple duty of keeping her course. My own observation has taught me that a great many of these accidents happen from a failure to see the approaching vessel, which may be due to a defect in her lights, or to a want of vigilance. In this ease, there is no complaint of the side lights, and the vessels were approaching each other at the rate of about a mile in four minutes; and, if the schooner’s lights had been seen from the first moment that they were visible, the time would have been short; and one possible explanation of the mistake is that the ships were • so near each other when the light was 'seen that there was hurry and excitement on board the steamer. It is not necessary, however, to decide more than that the night was clear, the schooner had the side lights, and should have been avoided by the steamer.

Upon the other part of the case, I fail to agree with the district judge. The schooner showed no torch, as the statute orders every sailing vessel to do “on the approach of a steam-vessel during the night-time.” Rev. St. § 4234. Our sailing rules have not the strict *607and arbitrary character which the highest court in England attributes to the act of parliament, making a departure from any rule conclusive evidence of fault, though no damage has resulted from it. *Stoomvaart Maatschappy Nederland,*v. *Peninsular & Oriental Steam Nav. Co.*5 App. Cas. 876. We admit the usual exception of the admiralty law, that a fault which has had no ill consequence is immaterial. *The*Leopard, 2 Low. 238; *'The John II. Starin,*2 Fed. Rep. 100; *The G. Whiting,*3 Fed. Rep. 870; *The Oder,*8 Fed. Rep. 172. Still great caution must be used in applying this exception.

Gongress has refused to relieve steam-ships of the burden of avoiding sailing-ships, however difficult it may be for large steamers to be handled readily, and however easy for some light sailing craft; but they have imposed upon the latter the duty of giving notice of their presence by certain definite means. We are bound, therefore, to believe that the exhibition of a torch is useful under ordinary circumstances. Exports may, perhaps, be found to testify that a moderate speed is harmful, a fog-horn useless, and a torch actually misleading; but the statute must be obeyed. Accordingly, it is held in recent cases that a sailing vessel neglecting this precaution must satisfy the court, beyond a reasonable doubt, that no injury can have resulted from the omission. See *The Eleonora,*17 Blatchf. 88, in which the chief justice says (p. 102,) “Nothing short of an absolute certainty that it would do no good, to be established by proof on the trial, will justify an omission to obey the rule;” and *The Sarmatian,*2 Fed. Rep. 911; *The Narragansett, 3*Fed. Rep. 251; S. G. 11 Fed. Rep. 918; *The Samuel H. Crawford,*6 Fed. Rep. 906; *The Alabama,*10 Fed. Rep. 394; *The Roman,*12 Fed. Rep. 219; S. C. 14 Fed. Rep. 61; *The Pennsylvania,*12 Fed. Rep. 914; *The Johns Hopkins,*13 Fed. Rep. 185.

Whether all the earlier cases were rightly decided on their facts, is of no great consequence at present. The principle is clear, and must be adhered to. In this case, by holding the witnesses of the steamer to the exact accuracy of their statements, we might say that they had seen the schooner’s light so early that a torch would not have added anything to their knowledge; but there is always a strong temptation for the steamer’s witnesses to exaggerate the distance at which the sailing vessel was seen, in order to show their vigilance; and it would not be just to hold them responsible for neglecting or failing to see the schooner, and at the same time to hold that they did see it so soon that a torch would not have enlightened them.

In this case there is no evidence upon either side on this point, except that no torch was shown. It does not appear whether there was a torch on board the schooner. One rather significant circumstance is that the mate, who was the lookout, saw the danger in time to blow a fog-horn; why he did not then, or a little sooner, show a torch, he has not explained. I must therefore vary the decree so far as to divide the damages, and it is so ordered.