light may be displayed on any portion of the vessel best adapted to attract attention of the approaching ship. to a case where, from the close vicinity of the steamer, it can be said that she is approaching some particular point on the sailingvessel. Section 4234 of the United States Revised Statutes required a lighted torch to be exhibited by a sailingvessel to an approaching steamer, whether the steamer were ap proaching from forward or abaft the beam, and where such torch was not exhibited the sailing-vessel was held in fault. The Samuel H. Crawford, 6 Fed. R. 906; Brainard v. The Narragansett, 3 Fed. R. 251; Kennedy v. The Sarmatian, 2 Fed. R. 911. Where a steamer approached a sailing-vessel during the nighttime, under section 4234, United States Revised Statutes, the sailingvessel was required to exhibit a flare-up light and hold her course. The Excelsior, 33 Fed. R. 554; The Pottsville, 24 Fed. R. 655; The Liz zie Major, 8 Ben. 333. The lights to be exhibited by the sailing-vessel was under the old rule required to be upon that point or quarter to which the steamvessel was approaching. The Saratoga, 37 Fed. R. 119; The Elenora, 17 Blatch. 88; The Golden Grove, 13 Fed. R. 700; The Oder, 13 Fed. R. 272; The Rhode Island, 17 Fed. R. 554; Kennedy v. The Sarmatian, 2 Fed. R. 911; The Algiers, 28 Fed. R. 240. Where a vessel casting off from her moorings in a navigable stream placed herself at night across a fair-way so that her regulation lights were not visible, it was held that she was bound to make use of some conspicuous signal to warn passing vessels of her location. The John Fenwick, 3 L. R. Adm. 500. A schooner and a steamer came in collision. The schooner's sidelights were not burning properly and were not seen by the steamer, though a vigilant watch was kept. As soon as discovered, the steamer did everything possible to avoid the collision. The schooner exhibited no flare-up torch, although she saw the steamer approaching. Held, that the schooner alone was at fault. The Narragansett, 20 Blatch. 87; 11 Fed. R. 918. When a sailing-vessel fails to show the torch prescribed by law upon the approach of a steamer, and collision occurs, which presumably would not have occurred had the torch been exhibited, the burden of proving negligence on the part of the steamer is on the sailing-vessel, she being the violator of the rules, and such tributory negligence will not be found upon uncertain proof. The Roman, 14 Fed. R. 61; The Lehigh, 43 Fed. R. 597. con Where the light actually exhibited by the sailing-vessel should have been seen by those in charge of a steamer in time to have avoided the collision, and the failure to see such light as was displayed contributed to the collision, it was held that both were in fault, Sec. 40. When failure to exhibit flare-up light or torch is excusable. The object of having a flare-up light or torch exhibited is to attract the attention of the other vessel, and and the damages were divided. The Roman, 12 Fed. R. 219. Where several competent persons on watch, attentive to their duties, can see no lights on an approaching vessel during a period of considerable time, when, if such lights were visible, they should have been seen, held, the defect will be ascribed to the other vessel, even when the exact reason why the lights are not visible is unknown. Albertson v. The Monmouthshire, 44 Fed. R. 697. In the case of The I. C. Harris, 29 Fed. R. 926, where a schooner and steamer collided, the schooner had the proper lights burning, but failed to exhibit a torch upon that quarter where a steamer was ap proaching, and the latter failed to observe the schooner's lights, although they were burning and there was nothing to prevent their being seen. Held, that both parties were at fault; the schooner for not exhibiting a torch, and the steamer for not keeping a proper lookout. steamer's lookout did not discover the schooner until within twenty or thirty feet of her, although she must have been visible for threequarters of a mile. Held, that both vessels were at fault; the schooner for not exhibiting a torch, the steamer for not keeping a proper lookout. The City of Savannah, 41 Fed. R. 841. The fact that the side-lights of a sailing-vessel were discovered from the steamship as early as the torch could have been, will not relieve the sailing-vessel from the charge of negligence in failing to exhibit the torch. The Pennsylvania, 12 Fed. R. 914. The Revised Statutes (sec. 4234), requiring a flash-light to be exhibited to an overtaking vessel, are not applicable, as the law of the forum, to a collision between vessels belonging to two different foreign nationalities, neither of which requires such a light according to its own maritime laws. The State of Alabama, 17 Fed. R. 847; The The Revised Statutes, section Oregon, 45 Fed. R. 62; Leonard v. 4234, did not apply to every in- Whitwell, 10 Ben. 638; The A. M. stance where a steamer and a sail- Hathaway, 25 Fed. R. 926. vessel passed near each other. If the steamer and sail-vessel did not approach each other in "the nautiSense," the statutes did not A becalmed pilot-boat was run into by a steamer which could have been stopped after seeing the former. The pilot-boat used no apply. The Tonawanda, 11 Phila. flare-up. Held to be a case for di cal 516. vision of damages. A schooner was overtaken in bia, 27 Fed. R. 238. the night-time and run into by a The Colum Pilot-boats are within the rule steamer on the same course. The requiring a sailing-vessel to exhibit where this is done in any other way than by exhibiting the flare-up, the office of torch or flare-up is performed and its exhibition is immaterial. When the failure to exhibit a flare-up light does not tend to produce the accident, which would have occurred in spite of such display, its absence is not a bar to recovery. When, however, there is a possibility that the display of the flare-up or torch would have avoided a collision, a vessel is at fault for not complying with the statute; and the burden of proof to show that such omission did not contribute to the collision is on the vessel failing to comply with the statutory requirements. Failing to prove this to the satisfaction of the court, she will be held in fault, a torch when off pilotage grounds. The New Orleans, 9 Ben. 303. Placing a service-lantern, ordinarily used to give light in discharging a cargo, over the stern of a vessel is not sufficient precaution. The John Fenwick, 3 L. R. Adm. 500; 41 L. J. Adm. 38. Where a schooner failed to show a torch on first hearing a steamer's fog-whistle, and made no attempt to do so, and it was shown that such display would probably have kept the vessels apart, it was held that the schooner was guilty of such contributory negligence in not displaying a torch as would warrant a division of damages, the colliding vessel being also at fault. Hood v. The Lehigh, 43 Fed. R. 597. A schooner knowing that her colored lights were not visible to an overtaking steamer was held liable in not exhibiting a flash-light to indicate her presence to the approaching ship. The Saratoga, 37 Fed. R. 119. If the lights of an approaching vessel are seen by a steamer and then disappear, it becomes the duty of the steamer to check her speed and stop, if necessary, until the lights are discovered. The Illinois, 5 Blatch. 256. The failure of a sailing-vessel meeting a steamer on a clear night to show a torch, held to be immaterial where the night was so clear that the ordinary lights were plainly visible to the approaching steamer. The Robert Holland and Parana, 59 Fed. R. 200. The Margaret v. The Steamer Whiting, 3 Fed. R. 870; The Buckeye, 9 Fed. R. 666. 2 Farwell v. The John H. Starin, 2 Fed. R. 100; Perkins v. The Hercules, 1 Fed. R. 925; The Oder, 8 Fed. R. 172; The Pennland, 23 Fed. R. 551; The Oregon, 27 Fed. R. 751; The Empire State, 2 Biss. 216; The Santa Claus, 1 Blatch. 370; The C. Whiting, 14 Phila. 566. 3 The Frank P. Lee, 30 Fed. R. 277; The Samuel H. Crawford, 6 Fed. R. 906; The Excelsior, 12 Fed. R. 195; The City of Savannah, 41 Fed. R. 891. and cannot recover, unless there is such negligence shown on the part of the other as to warrant a division of damages.1 Sec. 41. Burden of proof.— In cases of collision between vessels carrying lights and those not lighted as prescribed by law, the vessel whose lights are not in accordance with the statute has the burden of proving, by clear proof, that the omission did not contribute to the collision, or that there was contributory negligence on the part of the other vessel. The burden of proof is on the vessel whose lights are attacked to show that they were properly placed and properly burning. The duty of maintaining proper lights is so imperative that the courts hold that it is not sufficient that a vessel comply with the law,- she must be in position where she can prove herself to have complied with it; and it is this fact that renders the presence of a watch of such imperative necessity, not only to guard against the approach of other vessels, but to see that the lights of the ship are properly placed and properly burning.* 1McCabe v. Old Dominion S. S. stances as good seamanship would Co., 31 Fed. R. 234. require its exhibition. The Roman, 12 Fed. R. 219. The exhibition of specific lights may as well be entirely disregarded as to be only partially complied with, and in a way which fails to indicate to other vessels the position and course of the one carrying them. The Titan, 23 Fed. R. 413. The fact that the side-lights of a vessel could have been seen by a careful lookout from a steamer will not excuse the former for negligence in failing to exhibit a torch which might have prevented the collision. The Algiers, 21 Fed. R. 343. The fact that a vessel carries a deck load of combustible material does not relieve it from exhibiting a flare-up under such circum In the case of The Badger State, 15 Fed. R. 346, it was held that a vessel is not guilty of negligence in not displaying a flare-up unless there is apparent danger. 2 Chapin et al. v. The Hattie Ross, 5 Fed. Cases, No. 2598; The Conoho, 24 Fed. R. 758; The Roman, 14 Fed. R. 61; The Ontario, 2 Low. 40; Taylor v. Harwood, Taney, 437; The Albert Mason, 2 Fed. R. 821; The Parkersburg, 5 Blatch. 247; The Lafayette Lamb, 20 Fed. R. 319. Where it clearly appears that a lighted torch exhibited to an ap proaching steamer could not have conveyed any additional information of use to such approaching ship, the omission of it is not the proximate cause of the collision and is immaterial The burden of proof, however, to establish this fact is upon the vessel omitting to show such torch or flare-up. The Pennland, 23 Fed. R. 551; The Caro, 23 Fed. R. 734. Where a sailing-vessel omitted to exhibit the torch prescribed by statute to be shown by an overtaking vessel, it was held that the burden of proof was on the approaching vessel to show that she used all reasonable diligence to avoid the vessel ahead. The City of Merida, 24 Fed. R. 229. In a collision between a steamer and a schooner approaching in a dense fog, in such a manner as to involve risk of collision, the steamer with proper lights displayed, but going at an immoderate speed, and the schooner going without the proper lookout, it was held that the burden of proof was on the schooner to show that the omission of a proper lookout did not contribute to the collision, and in failing to do this she must be held in fault and could only recover divided damages. McCabe v. The Old Dominion S. S. Co., 31 Fed. R. 234. In a collision case, where there is a dispute about lights and their bearings, or the lack of a proper lookout, the absence of his testimony has great weight against the vessel, unless satisfactory reason is given for not producing his evidence. The Rabboni, 53 Fed. R. 952. Where negligence is proven on the part of a colliding vessel, the court will not impute negligence to the other because it failed to see a light that was exhibited on the delinquent vessel. The Algiers, 28 Fed. R. 240. |